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