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/