IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 MACA.No. 55 of 2005(C) ---------------------- OPMV.900/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/3RD RESPONDENT: --------------------------------------------- JOY PAULOSE, KOLLARNALIYIL HOUSE, KULAPPARCHAL P.O., RAJAKUMARY. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SMT.A.S.BEENU SRI.M.V.BIPIN RESPONDENT(S): RESPONDENTS: -------------------------------------- 1. BIJOY GOPI, S/O. GOPI, PARACKAL HOUSE, KODIKULAM KARA, KODIKULAM VILLAGE. 2. SIVAN, S/O. GOPALAN, NELLIKKATHADATHIL HOUSE, MURIKKUMTHOTTIKARA, RAJAKUMARY VILLAGE. 3. PAULOSE K.V., S/O. VARGHESE, KOLLARANALIYIL HOUSE, RAJAKUMARI SOUTH P.O., IDUKKI DISTRICT. 4. THE MANAGER, ORIENTAL INSURANCE CO.LTD., KOTHAMANGALAM. ADV. SRI.SUNU P.JOHN FOR R1 SRI.S.MAMMU FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.69 OF 2005 IN M.A.C.A. NO. 55 OF 2005 DISMISSED 25/9/08 SD/- M.N. KRISHNAN, JUDGE. [ True Copy ] P.A. TO JUDGE. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 55 OF 2005 = = = = = = = = = = = = = = = Dated this the 25th day of September, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)900/01. The claimant, a pillion rider sustained injuries in a road accident while he was travelling as a pillion rider in a bike driven by the first respondent in the claim petition. Due to the negligence of the first respondent, the accident occurred. The claimant has impleaded R2 as the owner R3 as the insured and R4 as the insurance company. The insurance company contended that there was no valid driving licence for the first respondent and so there is breach of policy condition. The Tribunal found that there was no licence and directed the insurance company to pay the amount and later recover it from the 3rd respondent, insured. The appeal is preferred by the 3rd respondent in the claim petition challenging the said finding. Learned counsel would contend that even going by the averments in the petition the 3rd M.A.C.A. 55 OF 2005 -:2:- respondent in the claim petition is only an insured whereas the ownership of the vehicle is vested in the 2nd respondent. Therefore he finds fault with he Tribunal for imposing the liability to realise from the 3rd respondent. It is not known that who was the registered owner of the vehicle at that time. In the decision reported in Ashraf v. Fathima 2004 (2) KLT 598 the Division Bench of this Court had held that, “Insurance company cannot recover it from the defacto owner because there is no contractual agreement between the defacto owner and the insurance company. The insurance company can recover it only from the insured.” Therefore being the insured the 3rd respondent in the claim petition may not be able to escape from the liability but if he is able to establish that the vehicle has been transferred and 2nd respondent is the owner in possession of the vehicle certainly he will be entitled to get it recovered from the 2nd respondent. Or in other words, there may be primary liability cast on the 3rd respondent to pay the amount to the M.A.C.A. 55 OF 2005 -:3:- insurance company and get it recovered from the 2nd respondent by the execution of the same award. But for the said purpose it has to be established that the 3rd respondent in the claim petition has sold the vehicle to the 2nd respondent therein. It is matter that requires consideration by the Tribunal. Learned counsel for the appellant also would contend that the rider did have a valid learner's licence on the date of accident and there was a person having licence as a pillion rider at that time. It is also a matter that can be considered by the Tribunal. If it is found that it is also false then the Tribunal shall not hesitate to initiate criminal proceedings against the persons who are producing false copies. Therefore the award under challenge is set aside so far as it relates to the liability of the insurance company and the interse liability of respondents 2 and 3 in the claim petition and the Tribunal shall give opportunity to produce cogent documentary evidence in support of their respective contentions especially after permitting respondents 2 and 3 if they choose to do so to file written M.A.C.A. 55 OF 2005 -:4:- statement and then permit the insurance company to file additional written statement, frame proper issues and then dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 10.11.08. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-