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2010 Supreme(Ker) 668

High Court of Kerala
THE HONOURABLE MR. JUSTICE A.K. BASHEER & THE HONOURABLE MR. JUSTICE P.Q. BARKATH ALI
Sethunath
Versus
John Varghese & Others
M.A.C.A.Nos.2194, 2615 of 2008, 3177, 3178 of 2009, 1487, 1486 of 2010 & W.P.(C)No.23653 & 23973 of 2010
Decided on : 19-11-2010

Advocates Appeared:For the Petitioners:Paulson C. Varghese, Advocate. For the Respondent:C.P. Udayabhanu, Advocate.

Headnote:

Motor Vehicles Act, 1988 - Section. 66( 1) - Motor Vehicles Rules 1989 -Rule. 82 - cases are being disposed of by this common judgment, since the core issue that has emanated from a common award passed by a Motor Accident Claims Tribunal in relation to a road traffic accident is common to all - insurance company admitted policy coverage in respect of the above vehicle. But the company resisted the claim for compensation made by the two injured pedestrians and contended that it would not be liable to indemnify the owner of the vehicle in as much as at the time of the accident the offending vehicle was being run without a valid permit. Though the above contention was accepted by the Tribunal, it directed the insurance company to pay the compensation to the two victims and recover the same from the owner of the vehicle. The above order is under challenge in these appeals and Writ Petitions -Held, limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the vehicle against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the vehicle-damage to property caused by the use (including the loading and/or unloading) of the vehicle - requirements of the Motor Vehicles Act the company shall not be liable in respect of death and/or bodily injury to any person(s) who is/are not employee(s) of the insured and not being carried for hire or reward, other than the owner of the goods or representative of the owner of goods being carried in or upon or entering or mounting or alighting from the insured vehicle described in the Schedule of this Policy - Petitions are allowed

Judgment :-

Basheer, J. 1. All these cases are being disposed of by this common judgment, since the core issue that has emanated from a common award passed by a Motor Accident Claims Tribunal in relation to a road traffic accident is common to all.

2. The question that has cropped up in these cases is: "Can the insurer claim exoneration from its liability to indemnify the owner of a transport vehicle, if the said vehicle gets involved in an accident after the expiry of the period of validity of the permit issued by the transport authorities in respect of the said vehicle" ?. To put it differently, is the liability of the insurance company to indemnify the owner of a transport vehicle co-terminous with the period of validity of the permit?

3. Shorn of unnecessary details, the relevant facts which lead to this legal imbroglio may be briefly noticed.

4. Two pedestrians were knocked down by an ambassador car on July 17, 2004. The car had been admittedly granted a permit by the transport authorities to be used as a Tourist Taxi or "passenger carrying commercial vehicle". It is beyond controversy that the validity of the permit had expired on May 19, 2004, about two months prior to the accident. The insurance company admitted policy coverage in respect of the above vehicle. But the company resisted the claim for compensation made by the two injured pedestrians and contended that it would not be liable to indemnify the owner of the vehicle in as much as at the time of the accident the offending vehicle was being run without a valid permit. Though the above contention was accepted by the Tribunal, it directed the insurance company to pay the compensation to the two victims and recover the same from the owner of the vehicle. The above order is under challenge in these appeals and Writ Petitions.

5. MACA Nos.2615/08 and 2194/08 are at the instance of the legal heir of the registered owner of the offending vehicle. According to this appellant, his predecessor in interest (late Mukundan) had transferred the vehicle to Smt.Thankamma way back on May 9, 1997 on the strength of an agreement for sale. Pursuant to the said agreement, the vehicle had been put in possession of Smt.Thankamma on the date of agreement itself. However, it was admitted by this appellant before the Tribunal that his predecessor continued to be the registered owner on record.

6. MACA Nos.1486/10 and 1487/10 have been filed by Smt.Thankamma, the subsequent transferee of the vehicle. According to this appellant, she had sold the vehicle to one Benny Markose and that the said person had been in actual possession and control of the vehicle at the time of the accident.

7. MACA Nos.3177/09 and 3178/09 are filed by the owner-driver of the offending vehicle (Benny Markose referred to above). He admitted that at the time of the accident, he was in possession and ownership of the vehicle. According to him, he had purchased the vehicle from Smt.Thankamma on the strength of an agreement.

8. Writ Petition Nos.23653/10 and 23973/10 are filed by the legal heir of the registered owner who is the common appellant in MACA Nos.2194 and 2615 of 2008 referred to above. The challenge in these two writ petitions is directed against the proceedings initiated by the revenue authorities under the Revenue Recovery Act in execution of the award at the instance of the insurance company.

9. It is contended by the appellants in all these cases that the insurance company did not have a case that the accident occurred while the vehicle was being used as a transport/commercial vehicle for carrying any passengers for hire or reward. Admittedly, the unfortunate accident occurred when the two pedestrians were knocked down by the driver of the vehicle. It is pointed out by the appellants that there was no material before the Tribunal to show that the vehicle was not road worthy or that the accident had occurred because of the so called violation of the policy conditions. However, it is conceded by the appell


















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