High Court Kerala High Court

K.K.Tomy Joseph vs T.Ayisha on 19 May, 2010

Kerala High Court
K.K.Tomy Joseph vs T.Ayisha on 19 May, 2010
       

  

  

 
 
  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.