Allowed

Prabhakaran v. Margret

Kerala HC16 Oct 2018MACA/1391/2008

Case brief

AI extract

What is this about?

Motor accident appeal filed by the transferee of a lorry challenging tri부의 award that imposed recovery liability on him. The court held that under Section 157 of the MV Act, the insurance policy deems transferred to the transferee, and the insurer must pay without recovery rights. Award set aside; liability rests with the insurer.

What did the court decide?

The Award imposing liability of recovery on the appellant set aside. The award amount to be satisfied by the Insurance Company within six weeks.

Prabhakaran Vs Margret — Execution and Attachment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940

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MACA.No. 1391 of 2008

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AGAINST THE AWARD IN OPMV 80/2000 of ADL.D.C. & MACT,THODUPUZHA DATED 31-07-2006

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APPELLANT:

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PRABHAKARAN, S/O PALRAJ, AGED 59 YEARS, MUNNAR TOWN, KDH VILLAGE.

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BY ADV. SRI.JOICE GEORGE

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RESPONDENTS:

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1 MARGRET, W/O LATE T.R. MARKOSE, THENKAPURAIKKAL

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HOUSE, LAKSHAMVEEDU COLONY,, MUNNAR.

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2 AGINISA, AGED 15 YEARS, S/O.LATE.T.R.MARKOSE (MINOR), REPRESENTED BY THE 1ST PETITIONER.

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3 AJIMON, AGED 13 YEARS, S/O.LATE T.R.MARKOSE (MINOR), REPRESENTED BY HIS MOTHER 1ST PETITIONER.

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4 GANESH MOORTHY, CHOKKANADU ESTATE, FACTORY DIVISION, MUNNAR P.O, MUNNAR.

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5 B.CHELLAYAN, S/O.BALAYAH O.N.WEST DIVISION, NALLATHANNI ESTATE, MUNNAR.P.O, MUNNAR.

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6 THE UNITED INDIA INSURANCE COMPANY LTD REPRESENTED BY ITS BRANCH MANAGER, MUNNAR.

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7 V.T.ROSAMMA, THENGAPURACKAL, LAKSHAMVEEDU COLONY, MUNNAR.P.O, MUNNAR.

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BY ADVS. SMT.R.REMA

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SRI.T.K.KOSHY

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 1391 of 2008

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JUDGMENT

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The liability mulcted upon the appellant herein who

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was the additional 5^th respondent before the Tribunal, being the transferee of the lorry involved in the accident, is under challenge on various grounds.

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Heard the learned counsel for the appellant, the learned counsel for the claimants/respondents 1 to 3 and the learned counsel appearing for the 6^th respondent insurance company at length.

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The sequence of events reveals that the deceased was traveling as a representative of the owner of the goods in the lorry bearing No. KL 11 7009 insured by the 6^th respondent company. While so, at about 9 a. m., when the vehicle reached the place of occurrence on 07.07.1999, the driver lost the control and the vehicle overturned, causing fatal injuries leading to death of the deceased which led to claim petition before the Tribunal by the legal heirs.

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During the pendency of the proceedings, it was

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stated by the second respondent before the Tribunal, who

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MACA.No. 1391 of 2008

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is the 5^th respondent herein, that he was only the

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registered owner and the vehicle was transferred to another person [appellant herein] who came to be impleaded as the additional 5^th respondent before the Tribunal. However, the Insurance Company conceded before the Tribunal that there was a valid policy issued in the name of the second respondent before the Tribunal, which was operative during the period from 19.09.1998 to 18.09.1999. Based on the evidence adduced, a finding was rendered to the effect that the accident was solely because of the negligence on the part of the driver of the lorry. The total compensation payable was fixed as Rs.2,86,000/- with interest as specified, which was directed to be satisfied by the Insurance Company; however, granting right of recovery from the appellant herein who was the transferee of the vehicle. It is with

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reference to the right of recovery given, the transferee of the vehicle is before this Court by way of this appeal.

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The reason for granting the right of recovery is

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discernible from paragraph 16 of the Award which is

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MACA.No. 1391 of 2008

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reproduced below :

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“16. Point No. 3 : - The first respondent was found responsible for the accident. The second respondent being the registered owner of the lorry at the relevant time, is held vicariously liable. Addl. 5^th respondent was the trasferee of the vehicle. The third respondent is the insurer of the vehicle. Ext. A7 is a kycheet executed by the Addl. R5 before the Devikulam Police Station on 16.7.99 in Crime No. 35/99, ie, the crime with reference tot he accident in question in the capacity of the owner of the vehicle bearing Reg. No. KL11/7009 which would indicate that Addl. R5 was the owner in possession of the vehicle as on date of accident. The third respondent has admitted the insurance in respect of the lorry involved in the accident in the name of the second respondent. The policy according to the third respondent also covers the period from 19.9.98 till 18.9.999. These circumstances, indicate that there was a transfer of the vehicle during the subsistence of the policy taken by the second respondent and the transferee, the Addl. 5^th respondent failed to intimate the third respondent the factum of transfer. In the circumstances, I am inclined to hold that the third respondent is liable to compensate the petitioner and to get recovery of the amount from second or Addl. 5^th respondent.”

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The Tribunal observed that transfer of the

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vehicle was effected by the second respondent/registered owner during the subsistence of the policy. However, it

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MACA.No. 1391 of 2008

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was observed that the transfer of the ownership was not

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brought to the notice of the insurer by the

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transferee/additional 5^th respondent before the Tribunal [appellant herein] and it was in the said circumstances, that the right of recovery was granted in favour of the insurance company. This Court finds that the said reasoning given by the Tribunal for granting right of recovery from the transferee/appellant is on a

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misconception as to the correct position of law. The Tribunal unfortunately omitted to take note of the

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mandate under Section 157 of the Motor Vehicles Act, 1988 which is reproduced below :

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“ 157. Transfer of Certificate of insurance -

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(1)Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.”

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MACA.No. 1391 of 2008

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It is clearly stipulated under Section 157 of the

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Act that when the ownership of the vehicle is transferred

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to another person, the policy also will deemed as transferred to the trasferee. In so far as there is no

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dispute that the accident was on 07.07.1999 [the policy was valid from 19.09.98 to 18.09.99] and the transfer of

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the vehicle was during the valid coverage under the policy [as noted by the Tribunal in paragraph 16], the policy was to be deemed as transferred to the additional respondent before the Tribunal i.e. appellant. The non-communication of the same by the additional 5^th respondent/appellant to the insurer has no consequence, in so far as the 'third party rights' are involved. The deceased who was travelling in the goods carriage accompanying the goods comes within the purview of the statutory coverage and as such, the liability ought to have been mulcted upon the shoulders of the insurance company and the right of recovery given is not at all correct. This being the position, declaration/observation made by the Apex Court as per the decision reported in

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AIR 2018 SC 983 [Naveenkumar Vs. Vijay Kumar and others]

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MACA.No. 1391 of 2008

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holding that the registered owner will be liable to satisfy the claim, if the records of registering authority reflect his name as the owner of the vehicle, is having no application. Award passed by the Tribunal

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to the extent of mulcting the liability upon the shoulders of the appellant herein stands set aside. It

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is made clear that the Award amount has to be satisfied by the Insurance Company; which shall be deposited before the Tribunal within six weeks from the date of receipt of a copy of this judgment.

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Appeal stands allowed to the said extent. No cost.

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Sd/-

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P.R.RAMACHANDRA MENON

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JUDGE

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kmd

Prabhakaran v. Margret

Case brief

What is this about?

What did the court decide?

Prabhakaran v. Margret

Case brief

What is this about?

What did the court decide?

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