Chandrakumaran v. Raman, Sajan and Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 4TH DAY OF JANUARY 2018 / 14TH POUSHA, 1939** **OP (MAC).No. 111 of 2017 -----------------------I.A 4796/15 & 4795/2015 IN OP(MV) 279/2011 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-11 PALAKKAD** ## **PETITIONER/1ST RESPONDENT** **--------------------------** **CHANDRAKUMARAN, AGED 62 YEARS, S/O BALAKRISHNN NAIR, KANNATH VEEDU, PERINGOTTUKURISSI (PO), PALAKKAD. PIN-678631.** **BY ADVS.SRI.SANGEETH C. SUBRAMANIAN SRI.SUMODH MADHAVAN NAIR** ## **RESPONDENT(S)/PETITIONER & RESPONDENTS 2 & 3:** **---------------------------------------------** **1. RAMAN, AGED 70, S/O ARUMUGHAN, KOZHIPOTTA VEEDU, VILAYANNUR, ALATHUR (PO), PALAKKAD. PIN-678706** ## **2. SAJAN,** **S/O CHANDRAN, THEKKEMADAM VEEDU, KUTHANNUR P.O, PALAKKAD, PIN-678721.** **3. ORIENTAL INSURANCE CO.LTD, SHOBHA TSM COMPLEX, RS ROAD, PALAKKAD, PIN-678001.** **R1 BY ADV. SRI.BINOY VASUDEVAN** **R3 BY SRI.JOHN JOSEPH VETTIKAD** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 04-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** **OP (MAC).No. 111 of 2017 (O) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE PHOTOCOPY OF THE I.A NO. 4796/2011 DATED 28/9/2015 IN OP (MV) NO. 279/2011 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD. EXHIBIT P2 TRUE COPY PHOTOCOPY OF THE IA NO. 4795/2011 IN OP (MV) NO. 279/2011 DATED 28/9/2015 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD. EXHIBIT P3 TRUE PHOTOCOPY OF THE SALE AGREEEMENT BETWEEN PETITIONER AND ABDULLAKUTTY DATED 18/10/2007. IN RESPECT OF VEHICLE BEARING REG. NO. KL-9-E 7585. EXHIBIT P4 TRUE PHOTOCOPY OF THE DELIVERY NOTE DATED 18/10/2017 EXECUTED BY THE PETITIONER AND ABDULLAKUTTY IN RESPECT OF VEHICLE BEARING REGISTRATION NO. KL-9-E 7585 EXHIBIT P5 TRUE PHOTOCOPY OF THE LETTER DATED 29/9/2008 INTIMATING SALE OF VEHICLE BEARING REGISTRATION NO. KL-9E 7585 TO THE ADDITIONAL REGISTERING AUTHORITY, ALATHUR (R.T.O). EXHIBIT P6 TRUE PHOTOCOPY OF THE EXECUTION PETITION E.P.NO. 71/2015 IN OP MV NO. 279/2011 ON THE FILES OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD DATED 19/8/2015 EXHIBIT P7 TRUE PHOTOCOPY OF THE AWARD DATED 18/2/2014 IN O.P (MV) NO. 279/2011 PASSED BY 112D ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD. EXHIBIT P8 TRUE PHOTOCOPY OF THE COMMON ORDER DATED 31/5/2017 IN I.A.NO. 4796/2015 AND I.A NO. 4795/2015 IN OP (MV) NO. 279/2011 PASSED BY 11ND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD.** ## **RESPONDENTS EXHIBITS: NIL** **--------------------** **K.V. P.S.TO JUDGE** ## **ANIL K. NARENDRAN, J. ----------------------------------------------O.P(MAC) No.111 of 2017 -----------------------------------------------** Dated this the 4[th] day of January, 2018 ## **J U D G M E N T** The petitioner, who is the 1[st] respondent in O.P.(MV) No.279 of 2011 on the file of the Motor Accidents Claims Tribunal, Palakkad, is before this Court in this original petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P8 order dated 31.5.2017 of the said Tribunal in I.A.Nos.4795 of 2015 and 4796 of 2015 in that claim petition, whereby the said applications filed seeking an order to set aside the ex parte award dated 18.2.2014 in O.P. (MV)No.279 of 2011 and for condonation of the delay of 569 days in filing the application to set aside the ex parte award stand rejected. 2. On 17.10.2017 when this original petition came up for admission, this Court issued urgent notice to respondents 1 and 2. 3. Heard the learned counsel for the petitioner and also the learned counsel for the 1[st] respondent. Despite service of notice none appeared for the 2[nd] respondent. 4. The sole issue that arises for consideration in this O.P.(MAC)No.111 of 2017 2 original petition is as to whether any interference is warranted on Ext.P8 order of the Tribunal dated 31.5.2017 in I.A. Nos.4795 of 2015 and 4796 of 2015 in O.P.(MV)No.279 of 2011. 5. O.P.(MV)No.279 of 2011 is one filed by the 1[st] respondent herein, claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 6.4.2009, involving a car bearing registration No.KL-09/B7585. In the said claim petition, the petitioner herein is arrayed as the 1[st] respondent, being the registered owner of the said car. Though notice was served on the petitioner and also on the driver of the car, who was arrayed as the 2[nd] respondent, they failed to appear before the Tribunal. Therefore, they were set ex parte and the Tribunal passed Ext.P7 award dated 18.2.2014 in O.P.(MV)No.279 of 2011, awarding a total compensation of Rs.42,200/- together with interest at the rate of 9% per annum from the date of petition, i.e., 19.3.2011 till realisation with proportionate costs. Since the vehicle was not having a valid insurance, the petitioner being the registered owner of the offending vehicle was directed to deposit the said amount. 3 O.P.(MAC)No.111 of 2017 6. In order to execute Ext.P7 award in O.P.(MV)No.279 of 2011, the 1[st] respondent claimant filed E.P.No.71 of 2015 before the Tribunal. On receipt of notice in that execution petition, the petitioner filed I.A.Nos.4795 of 2015 and 4796 of 2015 seeking an order to set aside Ext.P7 ex parte award in O.P.(MV)No.279 of 2011 and for condonation of the delay of 569 days in filing the application to set aside the ex parte award. In the said applications the petitioner contended that he sold the vehicle in question on 18.10.2007 to one Abdullakutty, S/o.Bapputty and the said fact was intimated in writing to the Additional Registering Authority, Alathur on 21.10.2007. On receipt of notice in O.P.(MV)No.279 of 2011, the petitioner had contacted the said Abdullakutty with a copy of the sale agreement, who had assured him to conduct the case before the Tribunal as per the terms of the said agreement. The petitioner believed the words of the said Abdullakutty and he came to know about Ext.P7 ex parte award in O.P.(MV)No.279 of 2011 only on receipt of the notice in E.P.No.71 of 2015. 7. The 1[st] respondent claimant filed counter affidavit opposing the reliefs sought for in I.A.Nos.4795 of 2015 and O.P.(MAC)No.111 of 2017 4 4796 of 2015, contending that no valid or justifiable reasons have been stated to condone the delay of 565 days or to set aside the ex parte award. As the petitioner was the registered owner of the offending vehicle as on the date of accident, there is no reason to condone the delay and to set aside the ex parte award passed against him. 8. The Tribunal, after considering the rival contentions, dismissed I.A.Nos.4795 of 2015 and 4796 of 2015 by Ext.P8 order holding that the petitioner being the registered owner of the offending vehicle as on the date of accident, cannot absolve his liability even if he had handed over possession of the said vehicle to a third party. Further, the mere avernment in the petition that, on receipt of notice from the Tribunal in O.P.(MV)No.279 of 2011 the petitioner had contacted Abdullakutty to whom he had transferred the said vehicle as per a sale agreement is not a valid and justifiable ground to condone the delay of 569 days in preferring the application for setting aside the ex parte award. 9. The accident occurred on 6.9.2009. Along with this original petition, the petitioner has produced Ext.P3 sale agreement stated to have been executed with Abdullakutty, O.P.(MAC)No.111 of 2017 5 whereby he had sold the offending vehicle to the said person on 18.10.2007, much prior to the date of accident. Ext.P4 is the delivery note stated to have been executed between the petitioner and Abdullakutty on 18.10.2007, whereby the said Abdullakutty has taken possession of that vehicle from the petitioner, together with the registration certificate and other connected records. Ext.P5 is the intimation stated to have been issued to the Additional Registering Authority, Alathur on 21.10.2007, reporting the factum of transfer of ownership of the offending vehicle to the said Abdullakutty. 10. In **P. P. Mohammed v. K. Rajappan [(2008) 17 SCC 624]** the Apex Court held that merely because the vehicle was transferred, it does not mean that the registered owner stands absolved of his liability to a third party. So long as his name continues in RTO records, he remains liable to a third party. However, the person in actual possession of the vehicle would also be liable. The law laid down by the Apex Court in **P.** **P. Mohammed's case (supra)** was followed in **Pushpa v. Shakuntala [(2011) 2 SCC 240]** . 11. In **Sheji v. Muhammedali Shehabudeen and another [2016 (2) KHC 410]** a Division Bench of this Court O.P.(MAC)No.111 of 2017 6 held that, in view of the law laid down by the Apex Court in **Mohammed's case** and **Pushpa's case** referred to supra, where ownership of the vehicle stood transferred, without reporting the factum of transfer of ownership to the registering authority concerned, as mandated by Section 50 of the Motor Vehicles Act, 1988 the person in actual possession of the vehicle (i.e., the de facto owner) as well as the person in whose name the vehicle stood in RTO records (i.e., the registered owner) would be liable to a third party, who sustained injuries in an accident involving the said vehicle. Paragraph 25 of the said decision reads thus; “25. In view of the law laid down by the Apex Court in the above mentioned cases, where ownership of the vehicle stood transferred, without reporting the factum of transfer of ownership to the registering authority concerned, as mandated by Section 50 of the Motor Vehicles Act, the person in actual possession of the vehicle (i.e., the de facto owner) as well as the person in whose name the vehicle stood in RTO records (i.e., the registered owner) would be liable to a third party, who sustained injured in an accident involving the said vehicle. In that view of the matter, the finding that the appellant was the de facto owner of the offending vehicle at the time of accident would not absolve the 2[nd] respondent registered owner from the liability to a third party and as such, the appellant and the 2[nd] respondent 7 O.P.(MAC)No.111 of 2017 are jointly and severally liable to pay the amount of compensation to the 1[st] respondent, who sustained injuries in the accident.” 12. In view of the law laid down in the decisions referred to supra, the registered owner of a vehicle involved in an accident can be absolved from the liability to pay compensation if it is established that as on the date of accident the ownership of the said vehicle stood transferred in the name of the person who is in actual possession of that vehicle at the time of accident and the factum of transfer of ownership to the vehicle has been reported to the registering authority concerned, as mandated by Section 50 of the Motor Vehicles Act, 1988. On the other hand, where the ownership of the vehicle stood transferred, without reporting the factum of transfer of ownership to the registering authority concerned, as mandated by Section 50 of the Act, the person in actual possession of the vehicle (i.e., the de facto owner) as well as the person in whose name the vehicle stood in RTO records (i.e., the registered owner) would be liable to a third party, who sustained injuries in an accident involving the said vehicle. 13. In **Sreekumar v. Abdeen and others [2013 (3) KHC 329]** this Court held that, inter se dispute between the O.P.(MAC)No.111 of 2017 8 registered owner and the de facto owner is to be decided by the Tribunal if properly raised and that, the Tribunal alone has jurisdiction to adjudicate on the dispute between the registered owner and the de facto owner regarding ownership of the vehicle involved in the accident and arising in a claim petition pending before it. 14. The petitioner filed the application for setting aside the ex parte award with a delay of 569 days. The explanation offered in the application for condonation of delay, though not fully satisfactory, cannot be termed as one lacking bonafides. Having regard to the nature of contentions, the Tribunal should have taken a lenient view by compensating the claimant on payment of costs. Considering the facts and circumstances of the case, this Court finds that the delay of 569 days in filing the application for setting aside the ex parte award can be condoned on the petitioner (1[st] respondent before the Tribunal) depositing before the Tribunal 50% of the compensation awarded in O.P.(MV)No.279 of 2011 together with interest. Thereafter, the Tribunal shall reconsider the application filed by the petitioner for setting aside the ex parte award in O.P. (MV)No.279 of 2011, after affording both sides an opportunity O.P.(MAC)No.111 of 2017 9 to adduce evidence in support of their respective cases. In the result, this original petition is disposed of as follows; **(i)** On the petitioner (1[st] respondent in O.P.(MV)No.279 of 2011) depositing before the Motor Accidents Claims Tribunal, Palakkad, within three weeks from the date of receipt of a certified copy of this judgment, 50% of the compensation awarded in Ext.P7 award dated 18.2.2014 in O.P.(MV)No.279 of 2011 together with interest till the date of such deposit, Ext.P8 order of the Tribunal dated 31.5.2017 in I.A.Nos.4795 of 2015 and 4796 of 2015 will stand set aside and I.A.No.4795 of 2015 will stand allowed thereby condoning the delay of 569 days in filing the application for setting aside the ex parte award. **(ii)** Thereafter, the Tribunal shall reconsider I.A.No.4796 of 2015 filed by the petitioner for setting aside the ex parte award in O.P.(MV)No.279 of 2011 and pass appropriate orders thereon, after affording both sides an opportunity to adduce evidence in support of their respective cases, as expeditiously as possible, at any rate within a period of three months from the date of such deposit. **(iii)** On the petitioner depositing 50% of the compensation awarded in Ext.P7 award dated 18.2.2014 in O.P.(MV)No.279 of 2011 together with interest till the date of such deposit, the Tribunal shall permit the 1[st] respondent claimant to withdraw the said amount. **(iv)** On the petitioner depositing 50% of the compensation awarded in Ext.P7 award together with O.P.(MAC)No.111 of 2017 10 interest till the date of such deposit, as directed above, further proceedings in E.P.No.71 of 2015 in O.P. (MV)No.279 of 2011 shall be deferred pending reconsideration of I.A.No.4796 of 2015. **(v)** In case of any default on the part of the petitioner is depositing the aforesaid amount before the Tribunal, within three weeks from the date of receipt of a certified copy of this judgment, Ext.P8 order of the Tribunal dismissing I.A.Nos.4795 of 2015 and 4796 of 2015 in O.P.(MV)No.279 of 2011 shall stand affirmed. Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab