IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 165 of 2003(P)
1. K.K.TOMY JOSEPH, AGED 40 YEARS,
... Petitioner
Vs
1. T.AYISHA, W/O.ABDUL RAZACH, THOTTASSERY
... Respondent
2. ABDUL RAZACH, S/O.MOHAMMED,
3. SUNNY JOSEPH, S/O.VARKEY JOSEPH,
4. UNITED INDIA INSURANCE CO.LTD.,
5. ABDUL AZEEZ, PALLIKURUP, PALAPUTTA
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent :SRI.P.SAMSUDIN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :19/05/2010
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 165 OF 2003 &
CROSS OBJECTION 70 OF 2004
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Dated this the 19th day of May, 2010.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Ottapalam in O.P.(MV)631/97.
The Tribunal awarded a compensation of Rs.94,500/- and
exonerated the insurance company from the liability and
made respondents 2 and 3 jointly and severally liable for the
claim. It is against the said finding R3 has come up in
appeal. R5 has chosen to remain exparte before the Tribunal
and continuous to remain unserved even now and therefore I
dispense with the notice for him as the matter requires
reconsideration by the Tribunal from where notice can be
taken to him to decide the matter. The claimant has also
come up with a cross objection challenging the adequacy of
the compensation awarded by the Tribunal.
2. Heard the counsel for both the sides. It is the
case of the appellant that he had transferred the vehicle in
M.A.C.A. 165 OF 2003
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favour of the 5th respondent in the claim petition much prior
to the accident and therefore on the date of accident he was
not the owner of the vehicle. Learned Tribunal just made a
passing observation that a registered owner is always liable
and therefore did not consider the question on the ownership
of the vehicle at all. I am afraid that the said approach is
erroneous. Under the provisions of the Sale of Goods Act a
movable property can be sold by handing over possession on
receipt of consideration. When consideration is received and
the object is given possession of it amounts to divestiture of
title and therefore the ownership will get changed. Again a
reference to S.2(30) of the M.V.Act which defines an owner
not only takes in a registered owner but also an owner who
is in possession of the vehicle. This Court had consistently
taken the view that in order to decide the question of
ownership the paramount consideration is not the change of
registration for the reason the change of registration is only
a subsequent act after sale. Therefore if the appellant is able
to establish the fact that he had sold the vehicle for valid
M.A.C.A. 165 OF 2003
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consideration and parted with the possession of the vehicle
then the 5th respondent will be the owner of the vehicle and
as the third respondent was not the owner on the date of the
accident he shall not be liable to pay any compensation. But
though respondents 3 and 5 had been served they did not
produce any evidence at all to prove that fact. So I am
inclined to grant an opportunity to the 3rd respondent namely
the appellant to adduce evidence in support of the contention
of the same. Since the matter is going back I also direct the
learned Tribunal to consider the question of adequacy of
compensation. Therefore the appeal and cross objections are
disposed of as follows.
3. The award under challenge is set aside and the
matter is remitted back to the Tribunal with a direction to
permit all concerned to produce documentary as well as oral
evidence in support of their contentions regarding the sale of
the vehicle and thereafter let the matter be decided in
accordance with law. The Tribunal is also bound to consider
the adequacy of compensation. In order to have a fair trial
M.A.C.A. 165 OF 2003
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the appellant herein is directed to take out notice to the 5th
respondent in the claim petition for the appearance so that
the matter can be disposed of in the presence of all.
Parties are directed to appear before the Tribunal on
1.7.2010 and endeavour shall be made to dispose of the
matter within a period of three months from the date of
appearance of the parties.
Sd/-
M.N. KRISHNAN, JUDGE.
ul/-
[true copy]
P.A. To Judge.
M.A.C.A. 165 OF 2003
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M.N. KRISHNAN, J.
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M.A.C.A. No. 165 OF 2003
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J U D G M E N T
19th May, 2010.