STATE OF KERALA Vs. K BAVAKUTTY ROWTHER

JUDGEMENT

(1.) This appeal is filed by the State against the order of the Second Class Magistrate, Kayamkulam in C.C. No. 305 of 1959 acquitting the accused Bavakutty Rowther, the registered owner of the Fish Van T.C.Q. 1765, of the offence punishable under S.112 read with S.89(l) of the Travancore-Cochin Motor Vehicles Act X of 1125. Fish Van T. C. Q. 1765 when being driven on the Punalur-Kayamkulam Road on 25-10-1957 was involved in an accident. When the records of the van were gone through after the accident, it was found out that at the time of the accident the motor vehicle was not covered by a policy of insurance in the name of the accused who was then the registered owner. The heirs of the victim were denied compensation under the Third Party Insurance by the Insurance Department on the ground that the accused did not possess a policy of insurance complying with the requirements of S.89 (1) of the Motor Vehicles Act. The Government therefore ordered the prosecution of the accused. During the trial, it was revealed that the vehicle T.C.Q. 1765 was covered by a certificate of insurance issued to Shri Pappachan the former owner on 21-5-1957 for the period from 1-4-1957 to 31-3-1958. Relying on this, the learned Magistrate arrived at the conclusion that the accused is not guilty of the offence of not possessing an insurance certificate for the vehicle on 25-10-1957. Though the accused had no such contention, the Magistrate thought, the accused must have believed that the insurance certificate of the van covering the period was enough to satisfy the requirements of the Motor Vehicles Act. The learned Magistrate, holding that the law permits a person to cause or allow any other person to use a vehicle if there is a policy of insurance in his favour, came to the conclusion that there is nothing culpable in the accused using the vehicle on the public road since the former owner of the vehicle in whose name the insurance certificate stood, by transferring ownership to the accused, had in effect allowed the accused to use the vehicle. He therefore acquitted the accused.

(2.) The learned Public Prosecutor argues that the view taken by the Magistrate is completely erroneous and that the order of acquittal has to be reversed. I am inclined to agree with him. S.89(1) reads thus:-

(3.) Therefore the question whether the former owner permitted the accused to use the vehicle does not assume any importance and the real point for determination is whether on the date of the accident, the policy of insurance was in force. That would depend upon the question whether the transfer of ownership of the vehicle will by itself result in the transfer of the benefits of the policy of insurance which stands in the name of the transferor. The learned Public Prosecutor brought to my notice the case reported in Bir Singh v. Sm. Hashi Rashi, AIR 1956 Calcutta 555 - wherein it was held that if a restrictive clause as regards the rights of a transferee from the previous owner of the motor vehicle is found in a third party insurance policy and no approval of a transfer is obtained from the insurer, but the motor vehicle is registered by the Transport Authorities, the result is that the vehicle runs without cover of a policy. Such user of the vehicle without a cover of insurance makes the person using it liable for an offence under sub-s.(1) of S.94 read with the relevant portions of Chapter IX of the Motor Vehicles Act. The difficulty in the present case is, that the certificate of insurance is not before court and as such it is not possible to find out whether it contains a stipulation that the assent of the insurer is necessary to transfer the benefits of the insurance along with the transfer of the ownership of the vehicle. The learned Public Prosecutor has brought to my notice the provisions of R.14(c) of the Rules for the Insurance of Motor Vehicles (Notification No. D. Dis. 17/50/Addl. Fin. (ins) dated nil published in the Gazette Extraordinary dated 13th April 1951). The rule reads:-