High Court Kerala High Court

Shaji vs Abdul Kalam on 16 March, 2009

Kerala High Court
Shaji vs Abdul Kalam on 16 March, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 2335 of 2007()


1. SHAJI, AGED 35,
                      ...  Petitioner

                        Vs



1. ABDUL KALAM, KOORIPOIKA,
                       ...       Respondent

2. UNNI, PLAVILA VEEDU,

3. DIVISIONAL MANAGER,

                For Petitioner  :SRI.S.GIRISH

                For Respondent  :SRI.RAJAN P.KALIYATH

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :16/03/2009

 O R D E R
                  M.SASIDHARAN NAMBIAR, J.
                     ---------------------------
                  M.A.C.A.No.2335 of 2007- F
                    -----------------------------
             Dated this the 16th day of March, 2009

                         J U D G M E N T

1st respondent in O.P.(MV).No.1723/1999 on the file of the

Motor Accidents Claims Tribunal, Kollam is the appellant. 1st

respondent is the claimant. Respondents 2 and 3 are

respondents 2 and 3 before the Motor Accidents Claims Tribunal.

1st respondent filed a petition claiming a compensation of

Rs.50,000/- alleging that on 4.9.1999 at about 2.00 pm while he

was standing on the northern road margin of Kollam-

Thiruvananthapuram National High Way near Pallimukku, a goods

auto bearing registration No.KL2/D-2182 driven by the 2nd

respondent came in a rash and negligent manner and hit on his

body and he was thrown away and sustained serious injuries and

appellant and 2nd respondent are liable to pay the compensation

being the owner and driver and 3rd respondent is liable as the

insurer. Appellant filed a written statement contending that

though he was the owner of the vehicle on 5.6.1996, he sold the

vehicle to one Sebastian, S/o. John of Eravipuram, after receiving

the entire consideration by executing a sale deed dated 5.6.1996

M.A.C.A.No.2335 of 2007- F
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and thereafter the pick up van was under the absolute possession

and enjoyment of Sebastian and second respondent was driving

the vehicle under him and therefore, appellant is not liable. It

was also contended that the amount claimed is excessive and in

any case as the vehicle was insured with third respondent, third

respondent is liable to pay the compensation. Second

respondent remained absent. Third respondent resisted the claim

contending that the insurer did not inform the accident and did

not make available the vehicular documents and in any case

second respondent was not having a valid and effective driving

licence at the material time and therefore for violated policy

conditions, third respondent is not liable to indemnify the insurer.

2. Motor Accidents Claims Tribunal on the evidence of

Exts.A1 to A7 found that 1st respondent sustained injuries in the

motor accident and the accident was caused due to the negligent

driving of the vehicle by the second respondent. A compensation

of Rs.16,900/- was fixed inclusive of Rs.5,000/- for pain and

suffering and Rs.6,000/- for loss of amenities and Rs.3,000/- for

loss of earnings for two months. It was found that the second

respondent was not having a valid driving licence at the time of

M.A.C.A.No.2335 of 2007- F
3

the accident and therefore there was violation of the policy

conditions and hence the insurer is entitled to be reimbursed by

the insured for the compensation payable to first respondent. An

award was passed directing the appellant to deposit the

compensation and on his failure third respondent was directed to

deposit and realise the same from the appellant. First

respondent has filed this appeal challenging the award.

3. Learned counsel appearing for the appellant and third

respondent were heard.

4. Learned counsel appearing for appellant relying on a

photocopy of the registered sale deed executed on 5.6.1998

whereunder he had transferred the vehicle in favour of Sebastian,

S/o. Joan argued that as the entire sale consideration was

received and he transferred the vehicle on 5.6.1996, from

5.6.1996 onwards appellant was not the owner and Sebastian

was the owner and therefore, appellant has no liability to pay the

compensation and therefore the award is to be set aside.

Learned counsel also argued that in any case the Motor Accidents

Claims tribunal should have passed an award against the second

respondent-driver who caused the accident by his negligent

M.A.C.A.No.2335 of 2007- F
4

driving and the liability of the owner is only vicarious. Learned

counsel also argued that when third respondent admitted the

insurance policy, they are liable to pay the compensation, and

once paid the amount cannot be realised from the appellant.

5. Learned counsel appearing for the third respondent

relying on the decision of Apex Court in Jose v. Chacko (2001

(3) KLT 633) argued that appellant who is admittedly the

registered owner of the vehicle is liable to pay compensation to a

third party and he cannot avoid the liability on the ground that

there was a transfer by execution of a sale deed and delivery of

the vehicle without transfer of the Registration Certificate.

Learned counsel also argued that when there is no evidence to

prove that second respondent was holding a valid driving licence

on the date of accident and it is proved that there was no valid

driving licence to the second respondent, Tribunal rightly

permitted the insurance company for realisation of the amount

from the appellant and there is no reason to interfere with the

award.

6. Though learned counsel appearing for appellant relying

on a certified copy of a true copy produced before the Motor

M.A.C.A.No.2335 of 2007- F
5

Accidents Claims Tribunal argued that from 5.6.1996 onwards he

is not the owner of the vehicle involved in the accident and

therefore he has no liability to pay the compensation, in view of

the decision of the Apex Court in Jose’s case (supra) the

submission of learned counsel can only be rejected. Appellant

has no case that he is not the registered owner of the vehicle

involved in the accident, on the date of the accident. There is

also no case that there was any change of ownership in the

Registration Book before the date of the accident. The effect of

the registered certificate and liability of the registered owner is

settled by Apex Court in Jose’s case (supra). Hence, being the

registered owner, irrespective of the transfer in favour of

Sebastian as claimed, the appellant is liable to reimburse the

compensation paid to first respondent.

7. But there is force in the submission of the learned

counsel that Motor Accidents Claims Tribunal should have passed

an award as against second respondent also. The finding of the

Motor Accidents Claims Tribunal is that the accident was caused

due to the negligent driving of the second respondent. Liability

of the appellant, as the registered owner is the vicarious liability.

M.A.C.A.No.2335 of 2007- F
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Primarily the driver is liable. Therefore, Motor Accidents Claims

Tribunal should have directed respondents 1 and 2 in the O.P.

(MV) to pay the compensation. As insurance policy is admitted,

Motor Accidents Claims Tribunal rightly directed the third

respondent to deposit the amount and permitted third respondent

to realise the same from the appellant. The compensation

awarded is just and proper and warrants no interference.

The appeal is allowed in part. While confirming the award

passed by Motor Accidents Claims Tribunal, it is made clear that

the second respondent is also liable to pay the compensation.

Though learned counsel appearing for appellant submitted that

he has deposited 50% of the amount and therefore the balance

50% is to be paid by the second respondent. I cannot agree with

the submission. Both the appellant and second respondent are

liable to pay the compensation.

M.SASIDHARAN NAMBIAR,
JUDGE.

bkn/-