MACA.No. 221 of 2008 (OPMV.808/2003 of ADL.D.C. & MACT, THODUPUZHA)

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 22ND DAY OF MARCH 2012/2ND CHAITHRA 1934 MACA.No. 221 of 2008 ( ) -----------------------OPMV.808/2003 of ADL.D.C. & MACT,THODUPUZHA APPELLANT/1ST RESPONDENT: ------------------------------------- KABEER MUHAMMED, KOCHUPARAMBIL HOUSE PATHANAMTHITTA. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S)/PETITIONER/RESPONDENTS 2 AND 3: --------------------------------------------- 1. HAKKIM, S/O.KONTHALAM PERUNILATHIL HOUSE, MANNAKKALA BHAGOM, ADIMALY KARA ADIMALY VILLAGE. 2. T.J. TOMY, PULLATTU KUNNEL CHAMMALAMATTOM, KARADYPPARA. ADIMALY. 3. NATIONAL INSURANCE COMPANY LTD. CHERUPUZHAPAM BUILDINGS, MAIN ROAD, PALA KOTTAYAM. BY ADV. SRI.P.JAYASANKAR BY ADV. SRI.M.M.MATHEW (MANNOOR ETTONNIL) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------- MACA. No. 221 of 2008 ----------------------------------------------Dated this the 22[nd] day of March, 2012 ## **J U D G M E N T** ## **Ramakrishna Pillai, J.** The registered owner of the offending vehicle involved in a road traffic accident occurred on 8-6-2003 has come up in appeal aggrieved by the direction of the learned Tribunal giving liberty to the insurer to recover the compensation from him after effecting payment. 2. In the memorandum of appeal it is stated that the Tribunal ought to have found that the appellant has sold the vehicle to a third party even before the date of the accident and the said fact was intimated to the registration authorities. It was further contended that the Tribunal ought not have fixed liability upon the appellant on the failure of the driver to produce the driving license. 3. We have heard the learned counsel for the appellant and the learned counsel for the second and third MACA. 221/08 -2- respondents. We have also perused the impugned award. The claim petition was preferred by the first respondent seeking a compensation of `1,50,000/- for the injuries sustained by him. The averment was that while he was travelling on the pillion of a motorcycle he was hit down by a maruthi car driven by the second respondent. 4. The contention taken by the appellant before the Tribunal was that there was no negligence on the part of the second respondent who was driving the car. The further contention was that he had sold the vehicle involved in the accident to one C.I. Joy on 18-2-2000 and the factum of transfer had already been intimated to the concerned authority as well as the Insurer. 5. The third respondent while admitting the policy contended that the second respondent who was the driver was not having driving license at the time of the accident. After trial the Tribunal awarded compensation of MACA. 221/08 -3- `1,20,200/- together with interest at the rate of 6% per annum from the date of filing of the petition. As it is found that the second respondent was not having a valid driving license the third respondent was given opportunity to recover the amount from the appellant who was the registered owner after effecting the payment. 6. When the matter was taken for hearing the learned counsel for the appellant submitted that the second respondent was holding a valid driving license to drive light motor vehicles on the date of the accident. A laminated driving license bearing the name and photograph of the second respondent was made available to us for perusal. It is seen from the facing sheet that the driving license is dated 7-6-2010 and it is for driving non-transport vehicles. The validity period is from 20-04-2010 to 19-04-2015. On the reverse side the date of first issue is shown as 18-091985. It is further noted that he was licensed to drive MACA. 221/08 -4- throughout India, vehicle of the following descriptions: Motorcycle with gear with effect from 18-09-1985, LMV from 15-10-2001. 7. However we notice that the residence of the person made mention of in the facing sheet of the driving license produced before us is at Pala within Kottayam District as on 7-6-2010, i.e.,the date of issue. But the authority who has affixed signature on the reverse side is the Assistant Licensing Authority, Idukki. This creates a doubt in our mind regarding the genuineness of the same. As the same does not inspire confidence we are not inclined to accept it. 8. We put a specific query to the learned counsel for the appellant as to whether the appellant would be able to prove that the 2[nd] respondent was holding a valid driving license on the date of the accident by summoning the relevant records from the licensing authority concerned, the learned counsel for the appellant answered in the MACA. 221/08 -5- affirmative. 9. The further submission made by the learned counsel for the appellant was that the appellant be given an opportunity to substantiate the fact that the vehicle had been transferred to a third party on the date of the accident. However, we notice that the appellant does not have a case that mutation has been effected in the registration certificate regarding the alleged transfer. It is useful to extract the definition given to 'owner' in Section 2(30) of the Motor Vehicles Act. “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.” We are also reminded of the decision of the apex court in Jose v. Chacko, 2001(3) KLT 633(SC) wherein it is stated that though evidence on record showed that ownership of a MACA. 221/08 -6- vehicle had been transferred the registered owner still continued to remain liable to third parties so long as his name continued in the records of the R.T.O. Viewed in that profile the admission of further evidence to prove that the vehicle has been transferred on the strength of an agreement to a third party will not improve the case of the appellant and a remand for that purpose would be an exercise of futility. 10. However, we see considerable force in the submission made by the learned counsel for the appellant that the appellant be given an opportunity to establish that the second respondent was holding a valid driving license at the time of the accident so that the appellant could be exonerated from making the payment to the Insurance Company. Thus a remand was prayed for. We do notice that though notice was served on the second respondent who was the driver, he did not care to produce the driving MACA. 221/08 -7- license at the proper time. 11. The prayer for remand was seriously opposed by the learned counsel for the third respondent Insurance Company as they would be denied of a valuable right which has accrued to them. However, in the light of the submission that the second respondent was holding a valid license to drive light motor vehicles at the time of the accident we are of the view that one opportunity can be given to the appellant to substantiate his case by producing extracts or by summoning the relevant records from the authorities concerned to establish that the second respondent was having a valid driving license on the date of the accident. In the result, we allow the appeal. The direction in the impugned award giving liberty to the third respondent Insurance Company to recover the amount from the appellant after payment is hereby set aside. O.P.(MV) MACA. 221/08 -8- 808/03 on the file of the MACT, Thodupuzha is remanded to the Tribunal subject to the following conditions: i) The appellant shall pay a sum of `5000/- to the Kerala High Court Advocates' Welfare Fund Trust and shall produce receipt before the registry within two weeks. ii) The appellant shall pay a sum of `5000/- towards cost to the third respondent Insurance Company through their counsel. iii) The amount of compensation quantified and the direction to the 3[rd] respondent Insurance Company to make the payment to the claimants shall stand. iv) The appellant shall be given an opportunity to establish that the 2[nd] respondent was holding a valid driving license on the date of the accident by producing the relevant extracts from the authority concerned or by summoning the original records in the custody of the reporting authority pertaining to the license if any of the 2[nd] MACA. 221/08 -9- respondent. On the basis of the evidence so adduced the learned Tribunal shall pass a revised award giving appropriate direction. v) The learned Tribunal shall pass revised award within one month from the date of appearance of parties. vi) The parties shall enter appearance before the Tribunal on 30-4-2012. ## **(PIUS C.KURIAKOSE, JUDGE)** **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-