MFA No. 1157 of 2001 (D)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR** **FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929** **MFA.No. 1157 of 2001(D)** **-----------------------------------OPMV.949/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** **....................** ## **APPELLANT- 2ND RESPONDENT:** ## **-------------------------------------------** ## **M. BALAKRISHNAN, S/O. KRISHNAPILLAI, SUPERVISOR, HABITUAL TECHNOLOGY GROUP, 30/2113, WARRIAM ROAD, KOCHI.** **BY ADV. SRI.T.RAJESH** ## **RESPONDENTS - PETITIONER - RESPONDENTS 1 & 3:** **-------------------------------------------------------------------------** **1. DEVASSY FRANCIS, KOMBANAL HOUSE, THALAKODU P.O., KOTHAMANGALAM.** **2. SOMAN, S/O. NARAYANAN, THALAYATTU HOUSE, RAKKADU P.O., (VIA) VALAKOM, MOOVATTUPUZHA.** **3. UNITED INDIA INSURANCE CO. LTD., MOOVATTUPUZHA REPRESENTED BY ITS BRANCH MANAGER.** **BY ADV. SMT.K.C.BEENA** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. PADMANABHAN NAIR, J.** = = = = = = = = = = = = = = = = = = = ## **M.F.A. NO.1157 OF 2001** **= = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of February, 2008** ## **J U D G M E N T --------------------** **Appellant, who is stated to be the owner of a vehicle involved in a motor accident, has filed this appeal challenging the award passed in O.P(MV) No.949 of 1997 on the file of the Motor Accidents Claims Tribunal, Moovattupuzha, by which he was asked to pay a compensation of Rs.16,000/- to the the petitioner, first respondent herein.** **2. Short facts necessary for the disposal of the appeal are as follows: First respondent filed a petition claiming compensation impleading one Soman, appellant and also the third respondent Insurer. It was averred that at 3.30 p.m. on 4.4.1997 while the first respondent was walking along the Aluva-Munnar public road, a Scooter bearing Reg. No.KCF-6721 ridden by the second respondent came in a rash or negligent manner and hit against the person of the first respondent and he sustained injuries. He claimed a compensation of Rs.1,50,000/- alleging that the accident occurred due to the** **M.F.A. NO. 1157 OF 2001** ## **-: 2 :-** **negligent riding of the Scooter by the second respondent. The second respondent, who was impleaded as the rider of the Scooter did not appear and contest. Appellant filed a written statement contending that he was not the owner of the vehicle on the date of accident. It was contended that he sold the vehicle to one Nazar on 27.3.1997 who in turn sold the same to the second respondent, who is impleaded as the rider of the vehicle. Negligence alleged was denied. Quantum of compensation claimed was also disputed. Third respondent Insurer filed a written statement denying the negligence alleged against the rider of the Scooter. It was contended that the second respondent was not holding a valid and effective driving licence. The quantum of compensation claimed was also disputed.** **3. On the side of the first respondent, he was examined as P.W.1 and Exhibits A1 to A8 proved and marked. On the side of the appellant R.Ws.1 to 5 were examined, Exhibits B1, X1 and X1(a) proved and marked.** **4. The Tribunal found that the accident occurred due to the negligence of the rider of the Scooter, second respondent. Tribunal further found that the first respondent** ## **M.F.A. NO. 1157 OF 2001** ## **-: 3 :-** **is entitled to get a compensation of Rs.16,000/-. Since the appellant and second respondent did not produce the driving licence, Tribunal drew an adverse inference against the owner and rider. The contention of the appellant that he was not the owner of the vehicle at the relevant time was negatived and an award was passed. Challenging that award, this appeal is filed.** **5. Relying on the oral evidence of P.W1, Exhibit A3 report of the Assistant Motor Vehicle Inspector and Exhibit A4 charge sheet, the Tribunal found that the accident occurred due to the negligence of the second respondent, rider of the Scooter. That is a finding of fact based on good evidence. Tribunal found that the first respondent is entitled to get a compensation of Rs.16,000/-. So I do not find any reason to interfere with the quantum of compensation awarded by the Tribunal. Tribunal found that the second respondent had no driving licence at the time of the accident. It also found that the contention of the appellant that he transferred the vehicle was not established. Appellant produced a plain copy of the agreement. He examined himself and three independent witnesses were examined to prove the transfer.** ## **M.F.A. NO. 1157 OF 2001** ## **-: 4 :-** **Exhibits X1 and X1(a) are the records of the criminal case. R.W.3 is the Investigating Officer in the criminal case. He deposed that the vehicle was released to one Jomon, R.W.4. R.W.4 deposed that he released the vehicle as per the request of the second respondent Soman. Tribunal rejected the case on the ground that the insurance policy as well as the RC particulars show the appellant as the owner of the Scooter. The case put forward by the appellant was that he sold the vehicle long back to one Nazar, who in turn sold the same to the second respondent. The mere fact that the policy was taken in the name of the erstwhile owner of the vehicle alone is not a ground to take a decision that he is the owner of the vehicle at the time of the accident. It is trite law that a motor vehicle is a movable, the sale of which is governed by the provisions of the Sale of Goods Act. In Aliyar Kunju v. Subari Khan (1984 KLT 268) this Court held as follows:** **“On analysing the provisions of the Motor Vehicles Act, 1989, it can be seen that it is not the registration certificate of a motor vehicle which confers ownership on the owner. On the other hand, the registration certificate follows the ownership and not vice versa. The transfer of ownership of a vehicle is a** ## **M.F.A. NO. 1157 OF 2001** ## **-: 5 :-** **matter governed not by the provisions of the Motor Vehicles Act but by the provisions of the Sale of Goods Act. Motor vehicle being a movable, transfer of ownership takes effect from the date of the sale and not from any other date. As between the transferor and the transferee, the sale is complete before the transfer of the registration certificate”.** **6. Learned counsel appearing for the appellant argued that appellant may be given an opportunity to examine Nazar to whom the appellant originally sold the vehicle. It is to be noted that in spite of the specific contention put forward by the appellant that he sold the vehicle to one Nazar, who in turn sold the same to the second respondent, the second respondent did not appear and contest. Considering all aspects of the matter, I am of the view that one more opportunity can be granted to the appellant to establish that he is not liable to pay the compensation awarded. So for that limited purpose, the case has to go back. I am also setting aside the finding of the Tribunal that the rider second respondent was not holding a valid driving licence. It is for the second respondent to prove that he was holding a valid driving licence. It is also to be noted that the accident** ## **M.F.A. NO. 1157 OF 2001** ## **-: 6 :-** **occurred after the amendment of the Motor Vehicle Act, 1988 and hence there will be an automatic transfer of the policy also.** **7. In the result, the appeal is allowed in part. The findings of the Tribunal that the accident occurred due the negligence of the second respondent and first respondent is entitled to get a compensation of Rs.16,000/- are confirmed. But the findings of the Tribunal that the appellant is liable to pay the compensation awarded and the second respondent was not holding a valid driving licence at the time accident are set aside. The matter is remanded to the Tribunal for considering those issues afresh in accordance with law after giving the parties an opportunity to amend pleadings and adduce evidence, if so advised.** **8. Parties shall appear before the Motor Accidents Claims Tribunal, Muvattupuzha, on 10.3.2008.** **Civil Miscellaneous Petition No.1652 of 2002 shall stand dismissed.** ## **K. PADMANABHAN NAIR, JUDGE.** **vsv** ## **M.F.A. NO. 1157 OF 2001** ## **-: 7 :-** **K. PADMANABHAN NAIR, J. ===================== M.F.A. NO.1157 OF 2001 ===================== J U D G M E N T ------------------------------------------8TH FEBRUARY, 2008**