Bijumon v. Jithu (minor) and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 22ND DAY OF MAY 2018/1ST JYAISHTA, 1940** **MACA.No. 835 of 2017** **AGAINST THE AWARD IN OPMV 971/2008 (COMMON ORDER IN O.P(MV) No.936/2008, 938/2008, 945/2008, 971/2008 & 999/2008) OF THE M.A.C.T.,NEYYATTINKARA DATED 17-03-2016** **APPELLANT/1ST RESPONDENT** **BIJUMON,** **AGED 35 YEARS,S/O.GEORGE,RESIDING AT VETTUKADU VEEDU,KARODE,POZHIYOOR.P.O,NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.R.NIKHIL SRI.P.ABDUL RAZAK** **RESPONDENTS/APPLICANT & RESPONDENTS 2 & 3:** **1. JITHU (MINOR), AGED NOT KNOWN TO THE APPELLANT,D/O.CHRISTUDAS, RESIDING AT KALLUVILA VEEDU,UZHAPPAKONAM, NEDUMANGAD,KARIPPOOR.P.O,NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT-695541, REPRESENTED BY HER FATHER, CHRISTUDAS, AGED NOT KNOWN TO THE APPELLANT,S/O.JOHNROSE,RESIDING AT KALLUVILA VEEDU, UZHAPPAKONAM, NEDUMANGAD, KARIPPOOR.P.O, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT-695541.** ## **2. THE MANAGER,** **NEW INDIA ASSURANCE CO.LTD, NEAR KSRTC BUS STAND, NEYYATTINKARA,THIRUVANANTHPARAM-695121.** ## **3. VIJAYAN,** **AGE NOT KNOWN TO THE APPELLANT, S/O MANI, RESIDING AT HOUSE NO.364, MALANCHOOTU COLONY, PARASUVAIKKAL, PARASSALA,THIRUVANANTHAPURAM DISTRICT-695508.** **R2 BY ADV. SRI.GEORGE CHERIAN (SR.) R2 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.N.P.ASHA BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.9.2017 ALONG WITH M.A.C.A NO.847/2017 AND OTHER CONNECTED MATTERS, THE COURT ON 22.5.2018 DELIVERED THE FOLLOWING:** **ab** ## **K.Surendra Mohan & Mary Joseph, JJ.** ------------------------------------------------- M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 ------------------------------------------------ Dated this the 22[nd] day of May, 2018 ## **J U D G M E N T** ## **Mary Joseph,J:** The first respondent, the registered owner of an autorickshaw bearing Reg.No.KL-01/N 6628 has approached this Court with the captioned appeals and the above writ petition challenging the common award dated 17.3.2016 passed by the Motor Accidents Claims Tribunal, Neyyattinkara (for short 'the in claim there as Tribunal') petitions preferred OP(MV) Nos.936/2008, 938/2008, 945/2008, 971/2008 and 999/2008. 2. A motor accident occurred at 5.30 p.m. on 24.8.2008 when the aforesaid autorickshaw carrying five passengers overturned. One among the passengers in the autorickshaw died in the accident and the other passengers sustained serious injuries. The injured passengers availed treatment from various hospitals at Thiruvananthapuram and incurred expenses for that. The legal representatives of the deceased passenger and the injured M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-2-: passengers had preferred claim petitions as mentioned above before the Tribunal under Section 166 of the Motor Vehicles Act,1988 (for short 'the Act') seeking compensation and by the common award under challenge, compensation has been awarded to the claimants. The autorickshaw was validly insured at the relevant time with the second respondent in all the claim petitions and in view of overloading of the vehicle with excess passengers than the permitted seating capacity, which itself was the cause of the accident, being a fundamental breach of policy conditions, the Tribunal directed the insurer (the second respondent in the claim petitions) to deposit the amount awarded as compensation to various claimants with interest @ 9% p.a. from the date of deposit and thereafter to recover the entire amount from the first respondent in the claim petitions. It is aggrieved by that part of the common award granting recovery right to the insurer from the first respondent, who is none other than the registered owner of the vehicle, that the captioned appeals and the writ petition have been M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-3-: filed by the latter. 3. In view of the alternative remedy available to the petitioner in W.P(C) No.4238/2017, to file an appeal, the writ petition is not maintainable. However, since the petitioner has preferred appeals against the award in the claim petitions, we are inclined to consider the writ petition also and to grant the very same relief that is proposed to be granted in the appeals. 4. Sri.R.Nikhil advanced arguments on behalf of the appellants and the writ petitioner based on the following grounds:- 1. The appellant/writ petitioner was employed in Tamil Nadu at the relevant time when the accident was occurred. He had sold the autorickshaw much prior to the alleged incident and therefore, he was not in possession or control of the vehicle at the relevant time of accident. According to him, the word 'owner' means and includes not only the person in whose name the motor vehicle stands registered, but also the person in possession of the vehicle under a hire purchase agreement or an agreement of lease or an agreement of hypothecation. According to him, even if possession under the agreements referred above are temporary in nature, the person holding such M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-4-: possession shall be deemed to be the owner of the vehicle. Therefore, it is contended that the person in permanent possession by a transaction of sale can never be excluded from the definition of 'owner' and that can be inferred from the definition of 'owner' contained under Section 2(30) of the Act. Accordingly, the owner of the vehicle in the case on hand is the person to whom the vehicle has been transferred by passing of consideration and delivery of possession and he alone can be made vicariously liable for the negligence of the driver. In the case on hand, the Tribunal has granted right of recovery from him, being the registered owner and therefore, it went in error. 2. The appellant/writ petitioner was employed in Tamil Nadu at the time of accident and notice was not served upon him from the Tribunal. Paper publication was made in newspaper not having circulation at Tamil Nadu, but in a local newspaper at Thiruvananthapuram. Therefore, he could not take notice of the paper publication and appear before the Tribunal to contest the case. Had notice been served on him in his address at Tamil Nadu or paper publication made in a newspaper having circulation at Tamil Nadu, he could have entered appearance in the claim petitions and contested the same with all available materials. Since the common award is passed without his juncture and taking note of his contentions, it suffers from impropriety, illegality and incorrectness, which could only be M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-5-: rectified by this Court in interference. v. 3. The Apex Court had in **National Insurance Company Ltd. Anjana Shyam and others** [2007(3)KLT 993] had detailed the methodology to be adopted in circumstances when passengers travelling in a vehicle over and above the seating capacity have been sustained injuries in a motor accident with the involvement of that vehicle and approached the Tribunal seeking compensation. According to him, as per the dictum in the case cited supra, the insurer of the vehicle has to pay the sum total of compensation granted to the claimants, who would come within the seating capacity, in the descending order starting from the highest of the awards and the Tribunal has to direct distribution of the money so deposited proportionately to all the claimants who approached the Tribunal seeking compensation and to leave the claimants to recover the balance compensation from the owner of the vehicle. According to him, the dictum has been overlooked by the Tribunal, while directing the second respondent-insurer to deposit the entire award amount and permitting it to recover the same from the first respondent/who is the appellant/writ petitioner in the case on hand. According to the counsel, the Tribunal has erred in doing so and interference with that part of the common award is highly necessary. M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-6-: 5. Raising grounds as above, the learned counsel for the appellants/writ petitioner has canvassed for reversal of that part of the common award whereby right of recovery of the entire amount of compensation awarded to all the five claimants, is granted to the insurer from the owner, the appellants/ writ petitioner. 6. Per contra, Smt.Shanthi, the learned counsel for the insurer has contended that grounds (1) and (2) would not sustain in the eye of law. According to her, paper publication was made in the last known address of the appellants/writ petitioner as ordered by the Tribunal and therefore, there is no merit in the contention of the learned counsel for the appellants/writ petitioner that notice was not properly served on them. The learned counsel has also contended that the Apex Court has laid down the dictum in a catena of cases that when a vehicle is transferred without causing the name of the transferee being entered in the Certificate of Registration, the registered owner cannot be absolved from liability to compensate the victims of the motor accident occurred M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 **==> picture [22 x 9] intentionally omitted <==** with the involvement of the said vehicle. With regard to the third ground of argument, the counsel has conceded that there is merit in the arguments of the learned counsel for the appellants/writ **' s case** petitioner, in view of the dictum in **Anjan Shyam** (supra). 7. We are not inclined to accept the arguments put forth with regard to the non-service of notice and the imposition of liability on the person to whom the vehicle has been transferred without change of name in the Certificate of Registration, in view of the effectuation of the paper publication in the last known address of the first respondent and the position of law settled by **Jose** v. **Chacko** [AIR 2001 SC 3939] and **Pushpa @ Leela and others** v. **Shakuntala and others** [AIR 2011 SC 682] that the registered owner would not stand absolved of liability in a case wherein transfer of the vehicle though effected, his name continues to be reflected in the records maintained by the registering authority as the owner of the vehicle. 8. Having heard the arguments advanced by both counsel M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-8-: **' s case** and having gone through the dictum in **Anjana Shyam** (supra), we are of the view that the Tribunal has erred in granting the right of recovery of the total sum of compensation awarded to all the five claimants without noticing that as per Ext.B1 policy with which the autorickshaw involved in the accident was insured with, the risk of three passengers alone was covered and the insurer is only liable to indemnify the insured with respect to the ' s case compensation awarded to them alone. In Anjana Shyam (supra), a stage carriage bus, which was overloaded with 90 passengers against the seating capacity of 42 passengers met with an accident and the Apex Court, while considering the claim petitions of all the 90 passengers, who had sustained injuries, has laid the dictum to the following effect:- “.............. _In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. Ninety persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to_ M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-9-: _ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company, proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately.”_ In the case on hand, five passengers were travelling in the autorickshaw against the seating capacity of three passengers and among them, one died and the remaining four sustained injuries. The legal representatives of the deceased passenger and the four injured passengers had preferred claim petitions before the Tribunal. In OP(MV) Nos.936/2008, 938/2008 and 945/2008 respectively, the Tribunal had awarded `37,500/-, `11,700/- and `3,100/- respectively as compensation with 9% interest per annum from 24.9.2008 till realisation, in O.P(MV) No.971/2008, the M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-10-: Tribunal had awarded a sum of `28,500/- as compensation with 9% interest per annum from 7.10.2008 till realisation and in O.P(MV) No.999/2008, the Tribunal had awarded a sum of `6,01,500/- (inclusive of `50,000/-already awarded as compensation under Section 140 of the Act vide order in I.A.No.3684/2008) as compensation with 9% interest per annum from 14.10.2008 till realisation. The autorickshaw having been validly insured by Ext.B1 Certificate of Insurance, the insurer was directed to the total of the amount awarded as deposit compensation in the five claim petitions and after the deposit having been made, was permitted to recover the same from the first respondent/appellant with interest @ 9% p.a. from the date of deposit. 9. As rightly put forth by the learned counsel for the appellants/writ petitioner, the Tribunal while issuing the direction to deposit the total sum awarded and granting the right of recovery of the same to the insurer, has totally discarded the dictum of the M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-11-: ' s case Apex Court in Anjana Shyam (supra) as extracted herein above. Therefore, undoubtedly the Tribunal has erred in issuing a direction to deposit the entire sum and granting the right of recovery as stated above and the same is set aside. 10. In view of the dictum in 's case Anjana Shyam (supra), being the insurer of the autorickshaw, the seating capacity of which being three, the second respondent shall deposit total of the higher sums of the award in respect of the three claim petitions [`6,17,500/- = `5,51,500/- (`6,01,500/- **-** `50,000/-) in OP(MV) No.999/2008 **+** `37,500/- in O.P.(MV) NO.936/2008 **+** `28,500/in O.P.(MV) NO.971/2008] with interest @ 9% p.a. from the respective dates as stated in the impugned award and deposit the same. The owner, who is the appellants/writ petitioner herein, shall deposit the total of the sum relating to the remaining two lowest awards [`14,800/- **=** `11,700/- in OP(MV)No. 938/2008 **+** `3,100/- in OP(MV)No.945/2008] with interest @ 9% p.a. from the respective dates as stated in the impugned award. Both the M.A.C.A.Nos. 835,847,860 & 882/2017 & WP(C) No.4238 of 2017 :-12-: insurer and the appellants/writ petitioner shall deposit the sums as aforesaid within two months from the date of receipt of a copy of this judgment. The amount so deposited shall be distributed by the Tribunal proportionately to all the five claimants duly abiding by the dictum in Anjana Shyam's case (supra). With the directions as above, the MACAs. and the writ petition are allowed in part. Parties shall bear their respective costs. Sd/- **K.SURENDRA MOHAN, JUDGE** Sd/- **MARY JOSEPH, JUDGE** MBS/