Kerala High Court
National Insurance Company Ltd vs Sri. M.A. George on 9 July, 2014
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936
MFA.No. 10 of 2013 ()
----------------------
AGAINST THE ORDER/JUDGMENT IN WCC 63/2003 of COMMISSIONER FOR
WORKMEN'S COMPENSATION, ERNAKULAM
------------------
APPELLANT/RESPONDENT NO.2 :-
-----------------------------
NATIONAL INSURANCE COMPANY LTD.
BRANCH OFFICE, MYDHILI MANDIRAM, JANATHA JUNCTION
PALARIVATTOM, ERNAKULAM, KOCHI
PIN 682025, REPRESENTED BY ITS DEPUTY MANAGER.
BY ADVS.SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
RESPONDENT(S)/PETITIONER AND RESPONDENT NO.1 :-
------------------------------------------------
1. SRI. M.A. GEORGE
S/O.AUGUSTINE, MAVUNKASSERRY HOUSE, NAYARAMBALAM KARA
NARAKKAL P.O., KOCHI TALUK, PIN 682505.
2. MRS IDA GEORGE
W/O.GEORGE, THEKKEVEETTIL HOUSE, MANJANAKKADU KARA
NARAKKAL P.O., KOCHI TALUK, PIN 682505.
R2 BY ADV. SRI.O.V.MANIPRASAD
SRI.SAJU J PANICKER
SRI.P.DALBI EMMANUEL
R1 BY ADV. SRI.C.CHANDRASEKHARAN
SRI.P.VISWANATHA MENON
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
09-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JVT
B. KEMAL PASHA, J.
-------------------------------
M.F.A. (WCC) No.10 of 2013
--------------------------------------------
Dated this the 9th day of July 2014
J U D G M E N T
The Insurer, who is the 2nd opposite party in W.C.C.No.63/2003 before the Commissioner for Workmen's Compensation, Ernakulam has come up in appeal challenging the order dated 6.1.2012 by mulcting the liability to compensate the petitioner in the said case with the 2nd opposite party.
2. The case of the first respondent herein, who was the petitioner before the Commissioner is that, he suffered injuries in an accident out of and in the course of his employment as driver under the 2nd respondent herein. The appellant herein has resisted the claim on the ground that the policy in respect of the vehicle in question was issued in favour of Chinmaya Vidyalaya, its registered owner. The insurance policy was renewed by the 2nd respondent herein deliberately suppressing the transfer of ownership of the vehicle by the Chinmaya Vidyalaya in favour of the 2nd respondent herein and therefore, M.F.A. (WCC) No.10 of 2013 -: 2 :- the driver of the vehicle could not have entertained a claim for compensation under the Workmen's Compensation Act against the insurance company, as the insurance policy was not issued in favour of his employer whereas it was issued in favour of the earlier registered owner - Chinmaya Vidyalaya.
3. Heard the learned counsel for the appellant, Sri.Ziyad Rahman and the learned counsel for the first respondent, Sri.C.Chandrasekharan.
4. Learned counsel for the appellant has argued that in terms of proviso (i) to Sec.147(1) of the Motor Vehicles Act, the policy shall not be required to cover the liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923. The argument is that, in order to cover such an employee, the insurance policy should have been issued in favour of his employer.
5. This is a peculiar case, in which, it seems that the M.F.A. (WCC) No.10 of 2013 -: 3 :- insurer has chosen to issue the policy, by showing the wrong name and address of the insured in the policy. The vehicle was originally owned by Chinmaya Vidyalaya in favour of whom insurance policy was issued. Subsequently, Chinmaya Vidyalaya without informing the insurer, transferred the vehicle in favour of the 2nd respondent herein. It seems that the 2nd respondent has transferred the vehicle again to another person named Babu Xavier on 24.10.2003. The said endorsement is there in the Registration Certificate of the vehicle. It seems that even after the transfer of the vehicle by Chinmaya Vidyalaya in favour of the 2nd respondent, the insurance policy relating to the date of accident, ie., 28.5.2003 was issued by the appellant/insurer by showing the name of the insured in the policy as Chinmaya Vidyalaya. It cannot be said that the insurer can issue an insurance policy in respect of a vehicle by showing the name of a stranger as the insured. Only a person who owns the vehicle can get it insured and there is a corresponding duty on the part of the insurer to show the correct name of the owner of the vehicle in the insurance policy. It seems that the appellant/insurer has M.F.A. (WCC) No.10 of 2013 -: 4 :- chosen to issue an insurance policy covering the vehicle as on the date of accident by showing the name of Chinmaya Vidyalaya, who was the earlier owner of the vehicle instead of showing the name of the 2nd respondent herein as the insured. When a registered owner who has obtained an insurance policy by paying the premium in respect of the vehicle, transfers the vehicle, he has also a duty to inform the insurance company about the transfer. As most persons are not doing it, it necessitated the incorporation of Sec.157 in the Motor Vehicles Act whereby it has been stipulated that in such a case, the policy described in the certificate shall be deemed to have been transferred in favour of the transferee, during the subsistence of the policy. Here, the matter is worse as against the insurer, when the insurer has opted to issue a policy without verifying the registration particulars of the vehicle. It seems that the transferee has renewed the insurance policy by presenting the earlier policy in the name of Chinmaya Vidyalaya, and automatically the insurer has chosen to renew the policy and to issue a fresh policy in respect of the vehicle in favour of the M.F.A. (WCC) No.10 of 2013 -: 5 :- earlier registered owner Chinmaya Vidyalaya without noting down the name of the 2nd respondent herein as the insurer in the policy. Even in such cases it goes without saying that the insurer is liable to indemnify the registered owner of the vehicle in cases of claims arising out of accidents.
6. Relating to the liability of the insurer under the Workmen's Compensation Act also, it can be seen that when the insurer has issued a policy in respect of the vehicle, the insurer had a duty to verify the registration particulars of the vehicle in question and they ought to have issued the policy in the name of the transferee in favour of whom the vehicle has been transferred. The failure on the part of the insurer in noting down the correct name of the insured in the policy does not absolve the liability of the insurer to compensate the workmen, who suffered injury and who was working under the transferee owner of the vehicle. On going through the impugned order, it seems that such discussions are not there in the impugned order; but at the same time, the operative portion of the order seems to be correct. The appellant/insurer has liability to compensate the M.F.A. (WCC) No.10 of 2013 -: 6 :- first respondent herein, who sustained injury while working under the 2nd respondent herein. The mere fact that the appellant has shown the name of the insured mistakenly does not absolve the appellant/insurer from the liability to compensate the first respondent herein. This appeal is devoid of any merit and is only to be dismissed, and I do so.
In the result, this appeal is dismissed. No order as to costs.
B. KEMAL PASHA, JUDGE.
Jvt +++