K.O. Sabu v. C.M. Mathew and George Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939** **MACA.NO. 290 OF 2011 ( ) -------------------------** **AGAINST THE AWARD IN O.P.(M.V.)NO.1155/1998 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 26-10-2010** **-----------------------** **APPELLANT(S)/1ST RESPONDENT: ---------------------------** **K.O.SABU, KANDALLOOR HOUSE, MEPPURATH HOUSE, THURUTHIKKADU, MALAPPILLY, PATHANAMTHITTA.** **BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** **RESPONDENT(S)/PETITIONER AND 2ND RESPONDENT: --------------------------------------------** **1. C.M.MATHEW, AGED 49 YEARS, S/O. MATHAI, CHARAROOPARAMBIL HOUSE, VALAKUZHY P.O., PIN-689 544, EZHUMATTOOR MURI & VILLAGE, PATHANAMTHITTA DISTRICT.** **2. GEORGE THOMAS, S/O. A.T.GEORGE, ARANGATTU HOUSE, MARAMON P.O., PIN-689 549, THIRUVALLA, PATHANAMTHITTA DISTRICT.** **R1 BY ADV. SRI.T.K.KOSHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.290 of 2011 ---------------------------------Dated this the 20[th ] day of June, 2017** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.1155 of 1998 of the Motor Accidents Claims Tribunal, Pathanamthitta by the 1[st] respondent owner of the motorcycle. The learned Tribunal awarded an amount of Rs.27,700/- with 7.5% interest from the date of petition and cost of Rs.1,500/- and the owners of the vehicle are directed to satisfy the award within 30 days from the date of award. Being aggrieved by that, the owner in possession of the vehicle approached this court with this appeal. 2. The claimant's case is that on 26.12.1996 at 12 noon, while he was walking towards Pushpagiri hospital through stadium road, Thiruvalla a motorcycle bearing registration No.KL-B-6332 which was driven by the appellant in a rash and negligent manner, hit him as a result, he sustained serious fractures and immediately he was removed to hospital where he was treated as ## M.A.C.A. No.290 of 2011 2 inpatient. In this incident, the Thiruvalla police registered a crime and after investigation, laid charge in the Judicial First Class Magistrate Court, Thiruvalla. The appellant (1[st] respondent) filed a written objection and contended that his vehicle never involved in any accident as alleged by the claimant. The injured foisted a false case against him by influencing one Chandranpillai, who is a Police Constable attached to Thirualla Police station, who was living in enmical terms with the appellant. On the date of accident, the appellant was residing at Ranni, at his wife house, and the injured is not entitled to get any amount as compensation. Hence, the Judicial First Class Magistrate, Thiruvalla acquitted him in the criminal case. The 2[nd] respondent was declared as ex-parte. 3. The learned Tribunal held that both respondents are jointly and severally liable to pay compensation of Rs.28,000/- to the petitioner. Against that, the appellant preferred M.A.C.A. No.1180 of 2007 before this Court and this court set aside the award of the learned tribunal and remanded the case for fresh ## M.A.C.A. No.290 of 2011 3 disposal. After remand, the claimant was examined as PW1 and his documents were marked as Exts.A1 to A6. The appellant was examined as RW1 and his document was marked as Ext.B1. The learned Tribunal, after analysing the evidence awarded the claim. 4. Learned counsel appearing for the appellant contended that when there was no accident as alleged by the claimant, the award of compensation itself is unsustainable in law. At the time of accident, the appellant was not in station and therefore, it is clear that he was falsely implicated in this case. There is a delay of 10 days in preferring the FIR and a delay of one year in completing the investigation. Moreover, the injured, in Ext.A1 statement, deposed that a scooter was involved in the accident but in his evidence, it was stated that a motor bike hit against him. These inconsistent versions with regard to the vehicles itself reveals the falsity of the occurrence. It is also submitted that the 2[nd] respondent is the owner of the vehicle, the appellant (1[st] respondent) had its possession only, therefore the liability to pay M.A.C.A. No.290 of 2011 4 compensation by the appellant is unsustainable in law. 5. Learned counsel appearing for the 1[st] respondent (injured) submitted that the vehicle number was correctly stated by the injured. Immediately after the incident, the injured was removed to Pushpagiri hospital and it is the duty of the appellant to inform about the accident to the police but that was not done by him, for that, a case under Sec.134(a) of the Motor Vehicles Act, 1988 was registered against him. Since the injured was admitted in the hospital he could not contact the police officials and thereby occurred a delay of 10 days, which is immaterial. 6. Now the question is whether the RC owner of the vehicle or the present owner in possession of the vehicle is liable to pay compensation. The liability of the owner of the vehicle has been explained under different provisions of the Motor Vehicles Act. Section 2(30) of the Act defines "owner" in the following terms: "2(30). "owner" means a person in whose name a motor vehicle stands registered, and where such person is a M.A.C.A. No.290 of 2011 5 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." 7. In the light of the above law, I have examined whether the appellant was falsely implicated in this case. It is seen from Ext.A1, FIR that on 26.12.1996 at 12 noon, the incident occurred at Pushpagiri road which is 2 Kms away from the Thiruvalla Police station. The crime was registered on 04.01.1997 at 11.00 a.m. The Police Head Constable attached to Thiruvalla Police station visited Pushpagiri hospital. The injured explained that, immediately after the incident, he was under the belief that, the information about the accident will be given to the Thiruvalla Police station by the hospital authorities. On 04.1.1997 at 9.30 a.m., on the basis of the information received, the police officials visited the hospital and recorded the statement of the injured. In his statement, it is specifically stated that the vehicle KL-B-6332 scooter ## M.A.C.A. No.290 of 2011 6 hit on his left leg. Ext.A2 is the scene mahazar prepared by the Sub Inspector of Police, Thiruvalla. The place of occurrence is specifically mentioned therein. Independent witness present there attested Ext.A2 mahazar. Ext.A3 is the vehicle mahazar of the alleged vehicle KL-B-6332, which shows that an Enfield motorcycle was involved in that accident. Engine number and Chasis number are specifically mentioned therein and the 2[nd] respondent is the RC owner of the vehicle. The insurance certificate issued by Oriental Insurance Company Ltd. shows that it expired on 17.07.2000. Ext.A4 is the charge sheet, Ext.A5 is the wound certificate and Ext.A6 is the Medical certificate issued from Pushpagiri hospital. A perusal of the above documents show that the vehicle KL-B-6332 driven by the appellant hit against the injured and he sustained injuries in the motor accident. 8. The delay was properly explained by the injured to the police officer who recorded the statement. It is true that there is delay in submitting the final report. Even though, the appellant raised a contention that the M.A.C.A. No.290 of 2011 7 delay in recording the statement and registering the case was deliberate due to personal enmity of one Chandranpillai, Head Constable attached to Thiruvalla Police station, no complaint was preferred against that Police officer either before Court or before his higher officials. In the absence of such evidence, that contention is unsustainable in law and I reject that contention. It is true that there is difference in the statement and in the final report about the involvement of the vehicle. In Ext.A1 FIR and the statement attached to it, it was stated by the injured that a scooter was involved in the accident. But, in the final report, after proper investigation, the Sub Inspector found that KL-B-6332 is an Enfield bike and not a scooter. The learned Tribunal perused Exts.A1 to A4, the vehicular documents, furnished by the petitioner and concluded that the accident occurred due to the rash and negligent driving of the appellant. I have no dispute with regard to that point and I uphold that finding. 9. Apex Court in **P.P. Mohammed** v. **K. Rajappan and others** [(2008) 17 SCC 624] held that: ## M.A.C.A. No.290 of 2011 8 “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.”. ## 10. In **Said Mohammed** v. **Rema [1995 KHC** ## **310]** , this Court held as follows: “4. Before we deal with the contention now raised by the learned counsel, we may point out that this court has held on successive occasions that the liability to pay compensation in accident cases is that of the transferee owner of the vehicle if the registered owner had transferred its ownership before the accident. A Division Bench consisting of Paripoornan, J. (as His Lordship then was) and one of us(Thomas, J.) has observed in Kunjuraman v. Saramma (1986 KLT 742) that “the actual owner can be different from the registered owner and if it is proved that the registered owner has transferred the ownership to a different person the tortious liability will have to be borne by the transferee despite non transfer of the registration.” Though without reference to the above decision, another Division Bench of this court (John Mathew and Balakrishnan, JJ.) has taken the same view in Swaminathan v. Jayalakshmi Amma (1987 (2) KLT 292). Yet another Division Bench (Bhat, J. as His Lordship then was and Guttal, J.) has also taken the same view in United India Insurance Co.Ltd v. Jameela Beevi (1991 (1) KLT 832). xxx xxx xxx 6.S.2 of the Act which contains various definitions starts with a preface that every definition is subject to alteration or change in accordance with the context. This is evident from employment of ## M.A.C.A. No.290 of 2011 9 the words “unless the context otherwise requires” in the prefatory portion of the Section. The definition is, therefore, not exhaustive in regard to every context. If a particular context warrants departure from the contours of a definition, legislature permitted such departure to be made. The context here is such that mulcting the registered owner with the pecuniary liability of the tortious act of somebody else's servant or employee would result in manifest injustice to him. When a registered owner is not the real owner of the vehicle on the date of accident that registered owner has no vicarious liability for paying compensation, for, the driver of the vehicle would then have been acting in the course of the employment of the actual owner. So in the present context, a departure from the definition has to be resorted to. We, are, therefore, not inclined to entertain these appeals and accordingly we dismiss them in limine.” ## 11. Apex Court in _**Pushpa Aias Leela and others**_ v. ## _**Shakuntala and others**_ [(2011) 2 SCC 240] held as follows: “9.The question of the liability of the recorded owner of the vehicle has to be examined under different provisions of the Act. Section 2(30) of the Act defines "owner" in the following terms: "2(30) "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;" (Emphasis added) 10. Then, section 50 of the Act lays down the procedure for transfer of ownership. It is a long section and insofar as relevant it is reproduced below: "50. Transfer of ownership. (1) Where the ownership of ## M.A.C.A. No.290 of 2011 10 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 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." xxx xxx xxx xxx 12. The question of the liability of the recorded owner of a vehicle after its sale to another person was considered by the apex Court in **Dr. T.V. Jose** vs. **Chacko P.M., (2001) 8 SCC 748** . In paragraphs 9 and 10 of the decision, the Court observed and held as ## M.A.C.A. No.290 of 2011 11 follows: "9. Mr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No.9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas. 10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant ## M.A.C.A. No.290 of 2011 12 continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to do so." (Emphasis added) 13. Notwithstanding the sale of vehicle, neither the transferor nor the transferee took a step for the change of the name of the owner in the certificate of registration of the vehicle. In such a situation, the person whose name is shown in the records of the registering authority as the owner of the truck was equally liable for ## M.A.C.A. No.290 of 2011 13 the payment of compensation amount along with the person in possession of the vehicle. 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 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." 14. In this case, the learned Tribunal awarded a total compensation of Rs.27,700/- with 7.5% interest thereon from the date of petition till realization with M.A.C.A. No.290 of 2011 14 proportionate cost. I find no illegality in the above finding. Both the registered owner and the present owner are equally liable to pay the award amount within 30 days from the date of receipt of a copy of this judgment failing which the claimant is at liberty to realise it from them as per law. This M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS / True Copy / P.A. To Judge M.A.C.A. No.290 of 2011 15 **Apex Court T.V. Chacko v. Chacko P.O. 2001 8 SCC 478 settled the law as follows: The transferee of ownership by payment of consideration and delivery of vehicle permissible under law. But the transfer's name on the records of the registering authority not changed.**