High Court of KeralaSingle JudgeAppeal allowed in part; matter remitted to Trib...

George Mathew v. Thankachan and Others

Case / Petition Number:MACA No.1572 of 2014

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Basant Balaji
Judgment Date
2022-06-16
Court Decision / Holding
Appeal allowed in part; the question of liability (Issue No.2) is set aside and remitted to the Tribunal for fresh consideration. The appellant is directed to file an impleading application to include the additional 4th respondent, and the Tribunal shall dispose of this issue within four months from the date of receipt of a copy of the judgment, after allowing the parties to adduce evidence. Annexure A1 (sale agreement) shall be returned to the appellant after making a copy for the files.
Final Disposition
Appeal allowed in part; matter remitted to Tribunal for fresh consideration of the liability issue; impleadment of the 4th respondent permitted; Tribunal to decide within four months; Annexure A1 to be returned.

Parties to the Case

Appellants / Petitioners

  • George Mathew

Respondents

  • Thankachan
  • The New India Assurance Company Ltd.
  • Sainudheen

Legal Representation & Advocates

Counsels for Petitioners

  • • P.V. Baby
  • • A.N. Santhosh

Counsels for Respondents

  • • Biju Abraham
  • • Abu Mathew
  • • Aju Mathew
  • • Jayasankar G
  • • PMM Najeeb Khan
  • • P.G. Ganappan

Case Synopsis & Summary

George Mathew, the appellant in MACA No.1572 of 2014, challenges the Motor Accidents Claims Tribunal, Muvattupuzha award in OP(MV) No.853 of 2010 awarding Rs 3,91,000 as compensation with interest to the petitioner for injuries sustained in a road accident on 14 August 2010. The tribunal held the accident occurred due to the rash and negligent act of the first respondent driver and held the insurer (The New India Assurance Company Ltd.) and the owner jointly and severally liable, while absolving the insurer from liability on the ground of policy violation. The appellant contends that he had sold the offending vehicle to Sainudheen prior to the accident and that Sainudheen, not the appellant, was in possession at the time; he sought to implead the 4th respondent and produced Annexure A1 (sale agreement) to prove non-liability. He relied on Jaffer P. Aboobacker v. Vishnu P. and Others and Baby Varghese v. Anitha Roy to urge that Section 175 of the Motor Vehicles Act confines claims to the Tribunal and that mere transfer does not absolve liability without compliance with statutory requirements. The respondents argued that liability rested with the original owner and driver; the insurer was not liable due to policy violation. The High Court allowed the appeal in part, set aside the question of liability, and remitted it to the Tribunal for fresh consideration, directing impleadment of the 4th respondent and a four-month timeline. The original sale agreement Annexure A1 was to be returned after copying; the tribunal is to decide the liability anew with opportunities to adduce evidence.

Provisions of Law Cited

Section 175 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that he had sold the vehicle to Sainudheen before the accident and was not in possession; he sought to implead the 4th respondent and to produce Annexure A1 to prove non-liability. He relies on Jaffer P. Aboobacker v. Vishnu P. and Others (2016 (4) KHC 221) to argue that Section 175 of the Motor Vehicles Act confines claims to the Tribunal and bars Civil Court interference, and on Baby Varghese v. Anitha Roy (2015 (3) KLT 78) to show that mere transfer of ownership does not absolve liability if statutory requirements such as reporting and insurance were not complied with. He seeks fresh factual adjudication by the Tribunal on liability after admitting evidence, including the 4th respondent.

Contentions of Respondents

The respondents contend that liability rests primarily with the original owner and driver; the insurer is liable only if policy conditions are in force and there is no policy violation. They argue the Tribunal correctly held the 3rd respondent insurer absolved due to policy violation and that the 1st and 2nd respondents were primarily liable; impleading of the 4th respondent is not necessary unless evidence shows possession and ownership at the time of the accident.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Jaffer P. Aboobacker v. Vishnu P. and Others2016 (4) KHC 221PositiveCited to support the proposition that Section 175 of the Motor Vehicles Act confines the claims to the Tribunal and bars Civil Court interference.
Baby Varghese v. Anitha Roy2015 (3) KLT 78PositiveCited to support the principle that mere transfer of ownership/possession does not absolve liability if statutory requirements (e.g., reporting, insurance) are not satisfied.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **THURSDAY, THE 16[TH] DAY OF JUNE 2022/26TH JYAISHTA, 1944** **M.A.C.A. NO.1572 OF 2014** **(AGAINST THE AWARD DATED 6.11.2013 IN OPMV 853/2010** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA)** ## **APPELLANT/2ND RESPONDENT:** GEORGE MATHEW, S/O.MATHAI, KAPPIYARUKUDIYIL HOUSE, KADDAKKANAD P.O., KOLENCHERRY, ERNAKULAM DISTRICT. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 3:** 1 THANKACHAN, S/O.KURIAKOSE, KUDILIL THOTTATHIL HOUSE, KAKKADU KARA, PIRAVOM VILLAGE-686 664. 2 ADV.B.SATHEESAN, S/O.BALAKRISHNAN, B.S.SADANAM, THRIKALATHOOR KARA, MUVATTUPPUZHA VILLAGE, NOW RESIDING AT MUKKATH HOUSE, VELLOOR KARA, VELOOR VILLAGE-686 501. 3 THE NEW INDIA ASSURANCE COMPANY LTD., MUVATTUPUZHA BRANCH-686 661. 4 Addl.R4. Sainudheen, s/o.Ibrahim, Chirandayath House, Mulavoor Village, Muvattupuzha Taluk, is impleaded as per order dated 16.6.2022 in I.A. No.1840/2014. BY ADVS. SRI.BIJU ABRAHAM SRI.ABU MATHEW SRI.AJU MATHEW SRI.JAYASANKAR.G SRI.PMM.NAJEEB KHAN SRI.P.G.GANAPPAN, S.C. FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _MACA No.1572 of 2014_ 2 ## **JUDGMENT** _(Dated:16[th] June, 2022)_ The 2[nd] respondent in O.P.(M.V.)No.853 of 2010 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha is the appellant herein. As per the award of the Tribunal, an amount of Rs.3,91,000/- was allowed as compensation along with interest at 8% per annum from the date of petition in favour of the petitioner from the respondents 1 and 2 jointly and severally. The 3[rd] respondent was given liberty to release the amount from respondents 1 and 2 jointly and severally and their assets. 2. The case of the petitioner is that, on 14.08.2010 at about 9.00 p.m., while the petitioner was riding a scooter bearing Reg.No.KL-17/E-6038 through Piravom – Peruva public road from south to north, another motor cycle bearing Reg.No.KL-7/AE- _MACA No.1572 of 2014_ 3 4567 ridden by the 1[st] respondent(in the O.P.) rashly, negligently and at an excessive speed from opposite direction came and hit against the scooter of the petitioner. As a result of the same, the petitioner sustained grievous injuries. The accident occurred solely due to the rash and negligent act of the 1[st] respondent/driver of the offending motorcycle. 2[nd] and 3[rd] respondents are the insurer and owner respectively of the offending vehicle. The petitioner claimed an amount of Rs.6,00,000/- under different heads as compensation. 3. The 2[nd] respondent filed a written statement contending that he had sold the offending vehicle to one Sainudheen as per agreement dated 12.12.2009 and the said Sainudheen was the owner in possession of the motorcycle at the time of the accident. The 2[nd] respondent has no liability to pay compensation to the petitioner. The compensation claimed under _MACA No.1572 of 2014_ 4 various heads are too excessive and without any legal basis. The accident happened only due to the rash and negligent act of the petitioner. Hence the respondents prays for dismissal of the petition. The Tribunal entered into a finding that the accident happened due to the rash and negligent act of the 1[st] respondent and since there was violation of policy condition, the 3[rd] respondent insurance company was absolved from the liability and respondents 1 and 2 were jointly and severally made liable. 4. The counsel for the appellant submitted that, though a written statement was filed on behalf of the appellant stating that he has already sold the vehicle as per agreement dated 12.12.2009 and one Sainudheen is the present owner in possession of the vehicle and he is absolved from the liability, he could not properly conduct the case before the Tribunal as the lawyer representing him met with an _MACA No.1572 of 2014_ 5 accident and passed away. In this appeal he has filed an application for impleading said Sainudheen as additional 4[th] respondent, which was allowed by this court. He has also produced Annexure-A1, sale agreement dated 12.12.2009, as the same could not be produced before the Tribunal. 5. Though the written statement was filed by the 2[nd] respondent, there was no document to prove that the vehicle was in the possession of the additional 4[th] respondent herein. The Tribunal held that, respondents 1 and 2 are primarily liable to pay the compensation, as there was a violation of policy condition. The counsel for the petitioner prayed that he may be given an opportunity to produce Annexure-A1 sale agreement before the Tribunal, so that, he could prove that he was not the owner at the time of the accident. The counsel for the respondents 1, 3 and 4 contended that the Tribunal was right in fixing the _MACA No.1572 of 2014_ 6 liability on the original respondents 1 and 2, as there was violation of policy condition, absolving the 3[rd] respondent from the liability. As the accident happened due to the rash and negligent driving of the 1[st] respondent, the owner and driver of the vehicle, are primarily liable. 6. The counsel for the appellant also relied on the decision reported in _**Jaffer P. Aboobacker v. Vishnu P. and Others (2016 (4) KHC 221),**_ to content for the proposition that under Section 175 of the Motor Vehicles Act, there is a bar of jurisdiction of Civil Courts to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. In the said decision it was stated that, “on a reading of Section 175 of the Act, it is categoric and clear that all disputes arising in respect of the accident and subject matter of the claim petition, are to be decided by the Tribunal itself. Moreover, such dispute is prohibited thereunder, from being considered by a Civil Court also. Therefore, the contention put forth by the petitioner that the _MACA No.1572 of 2014_ 7 petitioner is not liable in any manner on account of the damages caused in the accident, can only be decided by the Tribunal. More predominantly, if such an issue is not decided by the Tribunal, petitioner is not having any other forum to put across such a contention and prove his innocence in the matter of accident”. The learned counsel also relied on the decision reported in _**Baby Varghese v. Anitha Roy (2015 (3) KLT 78)**_ to contend for the proposition that in transfer of ownership and possession by way of agreement, mere fact is that the sale of vehicle is already effected and the possession is handed over could not by itself absolve the liability of registered owner, if he has not ensured compliance of statutory provisions like reporting and transfer of vehicle within 15 days of transfer to the registering authority and ensuring that the vehicle is insured before it is used. On going through the above mentioned decision of this Court, I am of the considered opinion that the question as to who is liable to pay the compensation? has to be decided by the tribunal afresh. _MACA No.1572 of 2014_ 8 In the result, the appeal is allowed in part and the question, who is liable to pay the compensation which was raised as Issue No.2 alone is set aside and remitted to the Tribunal for fresh consideration. The appellant shall file necessary impleading application to implead the additional 4[th] respondent in this appeal before the Tribunal and if such an application is filed, the application shall be allowed and the appellant herein as well as the other contesting parties shall be given opportunity to adduce evidence to substantiate their rival claims. The Tribunal shall dispose of the petition on this question alone, within a period of 4 months from the date of receipt of a copy of this judgment. The parties shall appear before the Tribunal on 12.07.2022. The original Sale Agreement produced in the _MACA No.1572 of 2014_ 9 appeal and marked as Annexure – A1 shall be returned to the appellant, after retaining photocopy of the same in the files. sd/ BASANT BALAJI, JUDGE ss