High Court Kerala High Court

T.Haneefa vs K.P.Sukumaran on 16 October, 2007

Kerala High Court
T.Haneefa vs K.P.Sukumaran on 16 October, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1533 of 2007()


1. T.HANEEFA, S/O.MOHAMMEDKUTTY,
                      ...  Petitioner

                        Vs



1. K.P.SUKUMARAN, KEEZHPADATH HOUSE,
                       ...       Respondent

2. K.KAUSALYA, W/O.SUKUMARAN, RESIDING

3. VADAKKE VALAPPIL HAMSA, S/O.ALI,

4. NATIONAL INSURANCE CO.LTD., MAVOOR ROAD,

                For Petitioner  :SRI.MVS.NAMBOOTHIRY

                For Respondent  :SRI.V.GOPIKRISHNA

The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :16/10/2007

 O R D E R
     K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.

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                 M.A.C.A. NO: 1533 OF 2007
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           Dated this the 16th Day of October, 2009.


                             JUDGMENT

Joseph Francis J.

The appellant herein was the first respondent in O.P. (M.V.)

No: 160 of 2001 on the file of the Motor Accidents Claims Tribunal,

Tirur and the respondents 3 and 4 are the respondents 2 and 3

respectively in the O.P. The O.P. was filed by the respondents 1 and

2 herein claiming a sum of Rs.1,75,000/- as compensation for the

death of their minor daughter Nikhila.

2. The facts of the case are briefly as follows:

On 17.1.1999, the 2nd respondent along with her daughter

Nikhila was walking towards south through eastern side of Tirur

B.P. Angadi road. When they reached at police lane, at about 11

a.m., a jeep bearing no. KL 10B 8075 came from north side and

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knocked down Nikhila causing grievous injury to her. The injured,

as a result of the accident, died at Government Hospital, Tirur. The

accident occurred due to the rash and negligent driving of the 3rd

respondent, who was driving the offending vehicle, at the time of

the accident.

3. The appellant is the registered owner and 4th respondent is

the Insurance Company.

4. The appellant contends that, as a matter of fact, the

appellant had sold the vehicle to one Yahutty on 28.8.1998 itself,

and, since the appellant was out of India, there was no chance for

him to contest the claim. So, the award was passed by the Tribunal

on 29.3.2004. The appellant and the 3rd respondent remained

exparte. The learned Tribunal allowed the petition and allowed the

petitioners to recover a sum of Rs.1,59,000/- as compensation with

6% interest from 24.3.2001, till the date of realisation and cost of

Rs.1,500/- from the respondents 1 to 3. The Insurance Company

was directed to pay the amount awarded. It was further held that the

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Insurance Company is entitled for reimbursement from respondents

1 and 2 in the O.P. (M.V).

5. The appellant filed an application for setting aside the ex

parte. The learned Tribunal set aside the ex parte only for the

purpose of deciding the dispute between the appellant and the

Insurance company. After the ex parte was set aside, the appellant

filed a written statement contending that he had sold the jeep to

Yahutty and there was no violation of the condition of the policy.

The learned Tribunal considered only one point as to whether the

Insurance Company was entitled to recover the amount of

compensation paid by it from the appellant. Since the mutation was

not effected in the registry and the name of the appellant was still in

the Registration Certificate, the learned Tribunal held that the

Insurance Company is entitled to recover the amount of

compensation from the appellant also.

6. Against that award the first respondent filed this appeal.

7. We heard the learned counsel for the appellant and the

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learned counsel for contesting respondents.

8. Learned counsel for the appellant submitted that the appellant

sold the offending jeep as per Ext.B3 agreement and it was not proper

to hold that the appellant was the owner of the vehicle at the time of

the accident.

9. There is no dispute that the accident occurred on 17.1.1999.

According to the appellant, he had sold the jeep to one Yahootty on

28.8.98 as per Ext.B3 agreement. As per that agreement, the appellant

sold the jeep No:KL 10B 8075 to Yahootty, for a consideration of

Rs.1,92,500/-. Admittedly, the registration certificate of the jeep was

not transferred in the name of Yahootty after the jeep was transferred to

him as per Ext.B3 agreement. There is also no dispute that the

appellant continued to be the registered owner of the jeep even after

Ext.B3 agreement. It is an admitted fact that on the date of accident the

jeep was insured in the name of the appellant and not in the name of

Yahootty. There is no evidence to show that any intimation was given

to the Insurance Company regarding the transfer of the vehicle.

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10. Learned counsel for the appellant submitted that the sale of

the vehicle is governed by the provisions of Sale of Goods Act and the

transfer of vehicle is complete upon payment of consideration and

delivery of the vehicle irrespective of the fact that it has been registered

or not.

11. The definition of the term owner under Section 2 (19) of the

Motor Vehicles Act, 1939 (in short M.V. Act, 1939) reads as follows:

“Owner” means, where the person in
possession of a motor vehicle is a minor, the
guardian of such minor, and in relation to a motor
vehicle, which is the subject of a hire-purchase
agreement, the person in possession of the vehicle
under that agreement”.

12. The definition of owner under section 2 (30) of the M.V.

Act, 1988 reads as follows:

“Owner” means a person in whose name a
motor vehicle stands registered, and where such
person is a minor, the guardian of such minor, and in
relation to a motor vehicle, which is the subject of a
hire-purchase agreement, or an agreement of lease or
an agreement of hypothecation, the person in
possession of the vehicle under that agreement”.

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13. Under the M.V. Act, 1939, registration of the vehicle was not

the principal consideration for treating a person as the owner of the

vehicle and hence, in accordance with the principles embodied in sale

of goods, ownership of the vehicle could have changed from one hand

to another with the purchase of the vehicle and, if a person, on having

purchased a vehicle, had acquired possession and control thereof, he or

she could have been regarded as the owner of the vehicle. Under the

definition of owner, as given in section 2 (30) of the M.V.A Act, 1988,

if a registered owner parts with the possession of the vehicle in favour

of the person, who has purchased the vehicle, the registered owner still

remains the owner of the vehicle even if he ceases to have control and

possession to the vehicle.

14. In the decision reported in P.V. Said Mohammed V. Rema

and Others (1995(2) KLJ 259), it was held that it is clear that under

the Old Act, ownership of a vehicle rested mainly on the strength of

possession of the vehicle, but the change in the definition is not

sufficient to change the tortious liability of the actual owner of the

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vehicle. This is because the liability to pay the compensation to victims

of motor accidents is not creation of the Motor Vehicles Act.

15. In the decision reported in Najeeb V. Babu (1994(2) K.L.T.

S.No.15, Case No:20, it was held that till the transfer of ownership is

entered in the certificate of registration, one has to take it that the

person in whose favour such certificate of registration is issued is the

owner, unless otherwise established by legal evidence. In the present

case, the alleged purchaser Yahootty is not a party to the proceedings

and therefore interse, liability between the appellant and Yahootty

cannot be fixed in this proceedings.

16. The decision reported in 2005 ACJ 275 (Kerala) (Ashraf

V. Fathima), was a case in which the registered owner of a motor cycle

had transferred the vehicle to another person and thereafter, the vehicle

changed several hands. But, the registration certificate of the vehicle

was not transferred in the name of the transferee of the vehicle. The

policy of insurance also continued to be in the name of the registered

owner of the vehicle. When the transferee of the motor cycle was

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riding that vehicle, an accident occurred and a person died. The motor

cyclist had no licence to drive the vehicle. It was held by this Court

that the Insurance company is liable to pay the compensation to the

claimants but it can recover the amount from the insured and not from

the defacto owner. The court held as follows:

“Therefore, despite transfer, the Insurance company is

liable to pay compensation to the third party and that

benefit can be made available to the third parties and not

to the registered owner of the vehicle. Transferor’s

liability to third parties and the public also continues till

the obligation is transferred. Section 50 of the Motor

Vehicles Act casts mandatory obligation on the owner to

change the registration on transfer of vehicle.

Registered owner holds out to the public that he is the

owner of the vehicle. Third parties may be unaware of

transfer unless it is entered in the registration book.

Otherwise plea of bogus transfer will be made to escape

from liability to third parties. Here, alleged transfer is

not proved before the Tribunal. Since the person

driving the vehicle was not having driving license, as

held by the Apex Court the Insurance company is liable

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to pay the amount and then recover it from the insured.

Here the insured is still the registered owner as

admittedly, appellant, registered owner did not inform

the matter of transfer to the insurance company and

insurance is not transferred. The insurance company

cannot recover it from the defacto owner because there

is no contractual agreement between the defacto owner

and the insurance company. The insurance company

can recover it only from the insured.”

17. In this case, the appellant continues to be registered owner

of the offending vehicle. and as such he is liable to pay the

compensation, as he is the registered owner of the offending vehicle.

Also Shri. Yahutty is not a party either in the Tribunal or before this

Court.

18. Ext.A1 is th copy of F.I. R. in crime No.23 of 1999 of Tirur

Police station, which was registered against the second respondent, the

jeep driver. Ext.A2 is the copy of scene mahazar showing that the

accident was on the eastern margin of the road. Ext.A3 is the copy of

A.M.V.I. report which would show that there was no mechanical defect

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for the vehicle and there was no damage. Ext.B2 is the copy of charge

sheet showing that the second respondent was charge sheeted under

Section 66 read with section 192 of the Motor Vehicles Act. Ext.B2

further shows that the taxi jeep was used for carrying banana. Ext.B1

is the copy of the Insurance policy produced by the third respondent.

19. Since the vehicle was used as goods vehicle for carrying

banana, in violation of policy condition, the Insurance Company is

entitled for reimbursement.

20. In this case, a five year old girl died in the accident. The

petitioners are the parents of the girl. The multiplier applicable in the

case of the child below 15 years is 15 and the annual income of the girl,

who is not a earning member is taken as Rs.15,000/-. After deducting

1/3, the compensation payable for loss of dependency is arrived at

Rs.1,50,000/-. Rs.9,500/- is awarded by the Claims Tribunal as

compensation for pain and suffering, loss of estate, love and affection

and funeral expenses etc. Thus in total the compensation is assessed as

Rs.1,59,500/-. On considering the facts and circumstance of the case,

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we are of the view that the compensation awarded is just and

reasonable. Therefore, we find no reason to interfere with the award

passed by the Tribunal.

Accordingly, the appeal is dismissed. There is no order as to

costs.

K. M. JOSEPH, JUDGE

M. L. JOSEPH FRANCIS, JUDGE
dl/