Joy v Dolly, Benny Joseph, Oriental Insurance Company & James Mathew (MACA No. 11 of 2016) – against the award in OPMV 888/2011 and 889/2011, MACT Muvattupuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939** **MACA.No. 11 of 2016 ()** **-----------------------** **AGAINST THE AWARD IN OPMV 888/2011 of MACT MUVATTUPUZHA DATED 07-01-2015** **APPELLANT(S)/2ND RESPONDENT:** **---------------------------** **JOY, AGED 46 YEARS,** **S/O.MARKOSE, KANAPPILLY VEEDU, KULAPPARA BHAGAM, MANNATHOOR KARA, THIRUMARADY VILLAGE** **BY ADV. SRI.GEORGE SEBASTIAN** **RESPONDENT(S)/PETITIONER AND RESPONDENTS 1,3 AND 4:** **---------------------------------------------------** **1. DOLLY** **W/O. JAMES, KIZHAKKEKKARA HOUSE, POPIRAVOM KARA,** **PIRAVOM VILLAGE-686 664** **2. BENNY JOSEPH,** - **S/O.JOSEPH NARITHOKKEL HOUSE, PANAMKUTTY P.O,** - **IDUKKI, PIN 685 562** **3. ORIENTAL INSURANCE COMPANY, REPRESENTED BY THE DIVISIONAL MANAGER,** **DIVISIONAL OFFICE, T.H TOWER, MARKET P.O, PIN 686 673** **4. JAMES MATHEW KIZHAKKEKKARA HOUSE, PIRAVOM 686 664** **R3 BY ADV. SRI.M.JACOB MURICKAN R3 BY ADV. SRI.JOHN DANIEL (OLAPPURA) R1-R2 BY ADV. SRI.JIBU P THOMAS R1-R2 BY ADV. SRI.K.RAJESH KANNAN R2 BY ADV. SRI.JACOB ABRAHAM R BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-06-2017, ALONG WITH MACA. 12/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------M.A.C.A.Nos.11 & 12 of 2016 ---------------------------------------------Dated this the 7[th] day of June, 2017 ## **JUDGMENT** These appeals are preferred against the award in O.P.(MV) Nos.888/2011 and 889/2011 of the Motor Accidents Claims Tribunal, Muvattupuzha by the rider of the motor cycle. The petitioner in the above case sustained injuries in a motor accident on 14.7.2011 at 12.30 at BPC p.m junction, Piramadom. In O.P.(MV)No.888/2011, the learned tribunal awarded 19,200/- as compensation with 8% interest and cost₹ and in O.P.(MV) No889/2011, 30,960/- as compensation with₹ interest and cost. In both cases, the 3[rd] respondent was directed to deposit the amount within thirty days and realise the award amount from the appellant and his assets. 2. The injured's case in the tribunal was that on 4.7.2011, one James Mathew was riding a motorcycle No.KL- M.A.C.A.No.11/2016 &con.case 2 17/6083 along the Muvattupuzha - Pampakuda public road and one Dolly was the pillion rider. When they reached at BPC College junction, Piramadom another motor cycle No.KL6/9342 driven by the appellant came in a rash and negligent manner at high speed and hit against the injured's vehicle as a result they sustained serious injuries and immediately they were removed to hospital. The 1[st] respondent contended that the accident was due to the negligence of the rider of the other vehicle. He sold the vehicle to one Joseph, S/o. Varkey, Vazhekudiyil House, Parathodu, Idukki on 20.2.2006 and the 2[nd] respondent is in possession of the vehicle and the vehicle was reregistered in his name. The second respondent in his written objection contended that he was travelling as a pillion rider and the accident was due to the negligence of the other vehicle. In the criminal case, accused was acquitted by the trial Court and no liability to pay compensation. The 3[rd] respondent insurance company M.A.C.A.No.11/2016 &con.case 3 admitted the insurance of both vehicles and contended that the second respondent was the rider of KL-6/9342, who was not holding valid driving licence. Both cases were tried jointly. To substantiate the claim, the injured in O.P.(MV) 889 of 2011 was examined as PW1 and his documents were marked as Exts.A1 to A11. The respondents were examined as RW1 and RW2 and their documents were marked as Exts.B1 to B5. 3. The learned counsel appearing for the appellant contended that mere absence of licence will not absolve the insurance company from their liability. The insurance company has not produced any documents to prove that the absence of licence had contributed to the accident. Compensation amount shall be realised from the registered owner of the vehicle alone and the appellant has no liability to pay compensation. 4. The learned counsel appearing for the 2[nd] respondent contended that the owner of the vehicle is the M.A.C.A.No.11/2016 &con.case 4 person in possession of the vehicle alone. The question of liability of the registered owner of the vehicle and the owner in possession of the vehicle under the provisions of the Motor Vehicles Act 1988 (for short Act) for the tortuous act is specific and that reimbursement of any amount from the registered owner is unsustainable in law. 5. According to Section 2(30) of the Act, “owner” is defined 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 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;” The procedure for transfer of ownership of any motor vehicle registered has been explained u/s.50 of the Act, which reads as follows: “50. Transfer of ownership. (1) Where the ownership of any motor vehicle registered under this Chapter is transferred,- (a) the transferor shall,(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be M.A.C.A.No.11/2016 &con.case 5 prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and (ii) * * * * (b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration. (2) xxxxxxx (3) xxxxxxx (4) xxxxxxx (5) xxxxxxx (6) On receipt of a report under sub-section (1), or an application under subsection (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration. (7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority." 6. In the trial Court, the appellant admitted that he is in possession of the vehicle. The 2[nd] respondent has no dispute with regard to the possession of the vehicle by the appellant. Now the question is whether the 2[nd] respondent has transferred the vehicle to the appellant in time. In the written objection filed in the trial court, the M.A.C.A.No.11/2016 &con.case 6 appellant admitted that he purchased the offending motorcycle about six months prior to the accident and that he was having exclusive right and possession over the motorcycle at the time of accident. The above oral evidence adduced by the appellant was appreciated by the trial Court and opined that mere ownership had not been changed in the records of RTO, which did not mean that the ownership of the vehicle had not been transferred. The appellant submitted that the real owner of the vehicle was one Mr. Benny Joseph, the 2[nd] respondent herein, who was the first respondent in the tribunal. The appellant submitted that he never admitted the ownership of the vehicle, but only possession of the vehicle. He admitted that he had not adduced any evidence in the trial court with regard to proving the ownership of the vehicle. The vehicle had been transferred on valid consideration when it was entrusted to the appellant and he continues to be in possession of that vehicle. Neither the transferor nor the M.A.C.A.No.11/2016 &con.case 7 transferee took any steps to change the ownership in the Registration Certificate of the Vehicle. The omission of the 2[nd] respondent Benny Joseph ought to have been deemed to be continuous as the owner for the practical purpose of the Act after sale of the vehicle on 20.2.2006. 7. Full Bench of the Apex Court in _**Purnya Kala Devi V. State of Assam and another (2015 (1) SCC (Crl) 304)**_ held as follows: “........................ legislative intention in including in the definition of “owner” a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hirepurchase agreement to the effect that a person in control and possession of the vehicle should be construed as the “owner” and not alone the registered owner.” 8. Therefore, the decision rendered by the Apex Court in _**Purnya Kala Devi's case** (supra)_ is squarely applicable to the facts of this case with regard to the definition of 'owner' in 2(30) of 1988 Act. The definition of owner means a person in possession of a M.A.C.A.No.11/2016 &con.case 8 vehicle either under an agreement of lease or agreement of hypothecation or under a hire-purchase agreement to the effect that a person in control and possession of the vehicle. The legislative intention is that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The trial court failed to appreciate that position. ## 9. In _**P.P. Mohammed**_ v. _**K. Rajappan and others**_ [(2008) 17 SCC 624] apex court held that, _where ownership of the vehicle stood transferred, person in actual possession of the vehicle as well as the person in whose name the vehicle stood in RTO records, held, would be liable to the third party who was injured in the accident.”_ . While appreciating the legislative intention, the liability of the owners shall be fixed at the rate of 50:50 each. The 3[rd] respondent insurance company shall reimburse the amount from the appellant and the 2[nd] respondent equally within three months from the date of receipt of a copy of this judgment. The insurance company M.A.C.A.No.11/2016 &con.case 9 is at liberty to withdraw 50% of the total liability of the appellant from the amount deposited in this appeal. **P.D. RAJAN, JUDGE.** acd