A boy aged 17 years was riding a motor bike, under the influence of liquor, along with the first respondent herein as the pillion rider, who was also in drunken mood. They met with an accident as a result of a collision with a car owned by the present appellant. The registered owner of the car was the second respondent herein. The third respondent herein is the insurer of the car. 2. A claim petition was filed by the first respondent herein before the Motor Accidents Claims Tribunal, Irinjalakuda as O.P. (M.V.) No.1581 of 2007. The learned Tribunal has passed an award whereby fixing the compensation of `67,809/-. The learned Tribunal has found that there was 50% of contribution from the part of the rider of the motor bike in the incident and thereby the liability of the third respondent herein has been limited to 50%, ie, at `33,905/-. The third respondent has been permitted to pay the said amount of `33,905/-, and then to recover it from the second respondent, who is the registered owner of the car. Admittedly, the first respondent who is the appellant herein is the owner of the car, who purchased it from the second respondent, the registered owner. The permission to recover the amount after paying it was given to the third respondent by finding that the said car, which had a taxi permit was devoid of permit at the time of accident. The same was treated as a violation of the policy conditions.
3. Heard the learned counsel for the appellant and the learned counsel for the respondents. Learned counsel for the appellant has contended that the car was not being used for hire or reward at the time of the accident, whereas the car was being taken from the work shop after repairs and maintenance by the appellant, who is the owner of the car. According to the learned counsel for the appellant, unless the vehicle is made use of for hire or reward, it could not have been treated as a transport vehicle within the meaning of the Motor Vehicles Act. Learned counsel for the appellant is placing reliance on the decision reported in Sethunath v. John Varghese (2011(1) KLJ 550) wherein it was held that the statutory prohibition is only against using a vehicle as a 'transport vehicle' after the expiry of the validity of tourist permit. On the expiry of validity of tourist permit, the insurance policy would cease to cover the risk of passengers carried on for hire or reward. But the policy will continue to cover the risk of other third parties, especially if it is not proved that the vehicle was not being used as a transport vehicle at the time of accident.
4. Learned counsel for the 3rd respondent has contended that the appellant is not aggrieved in any manner, and further contended that no evidence was adduced by the appellant or the second respondent to prove that the vehicle was not being used for hire or reward at the time of accident. This court is unable to agree with the said arguments. As rightly pointed out by the learned counsel for the appellant, in case the liability is denied by the second respondent, there is every possibility for him to proceed against the appellant which may result in undue hardships and loss to the appellant. Further it is for the insurer to adduce evidence, if the insurance company has a case that the vehicle was being used for hire or reward after the lapse of the permit. Either the appellant or the second respondent are not expected to adduce negative evidence in the matter. Matters being so, it has to be found that the third respondent insurance company is liable to pay the amount of `33,905/- with interest as ordered. The third respondent is not entitled to recover the amount either from the second respondent or the appellant.
In the result, this appeal is allowed, and that portion of the award which permits the third respondent to recover the amount of `33,905/- from the second respondent is set aside. The amount deposited by the appellant as statutory payment for preferring this appeal, shall be returned to the appellant.
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B.KEMAL PASHA, JUDGE dl // TRUE COPY //