OP (MAC) No. 71 of 2016 (O) – High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 3RD DAY OF AUGUST 2016/12TH SRAVANA, 1938** **OP (MAC).No. 71 of 2016 (O)** **---------------------------(I.A.NO.2556/2016 IN OP(MV).NO.10/2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM)** **--------------------** ## **PETITIONER/1ST RESPONDENT:** **------------------------------------------------** **JAFFER.P.ABOOBACKER, S/O.ABOOBACKER, NOOR MANZIL, PINARMUNDA, PERINGALAI, KUNNATHUNADU, ALUVA, PIN: 683 101.** **BY ADV. SMT.T.A.LUXY** **RESPONDENT(S)/PETITIONER, RESPONDENTS 1 TO 3 AND THE ADDITIONAL 4TH RESPONDENT SOUGHT TO BE IMPLEADED:** **---------------------------------------------------------------------------------** ## **1. VISHNU P.,** **S/O.RENUKA M.D., MANNUVALLIL HOUSE, UDEYAMPERUR POST, MANKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM-682 017** **2. THE NEW INDIA ASSURANCE COMPANY LTD., REGIONAL OFFICE, OPP. MAHARAJAS COLLEGE GROUND, M.G.ROAD, ERNAKULAM, PIN: 682 011, REPRESENTED BY ITS MANAGER.** **3. JEEVANDAS, S/O.THAMPI, KALATHINTHARA HOUSE, MALEKAD VIA, UDEYAMEPOOR, PIN: 682 307.** **2/-** **-2-** **OP(MAC).NO.71/2016** ## **4. JEEVANLAL,** **S/O.THAMBI, KALATHINTHARA HOUSE, MALEKAD VIA, UDEYAMPEROOR, PIN: 682 307.** **R1 BY ADVS. SRI.K.JANARDHANAN SRI.K.J.MANU RAJ SMT.P.C.JEEVA** **R2 BY SRI.A.A.ZIYAD RAHMAN** **R3 & R4 BY ADV. SRI.K.N.GOVINDANKUTTY MENON** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 03-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **OP (MAC).No. 71 of 2016 (O)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS ----------------------------------------** - **P1 TRUE COPY OF THE CLAIM PETITION NUMBERED AS OP(MV) 10/2013.** - **P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER** - **P3 TRUE COPY OF THE STATEMENT GIVEN BY THE 1ST RESPONDENT BEFORE THE POLICE IN CRIME NO.7440/2012 OF KOCHI CITY TRAFFIC POLICE STATION** - **P4 TRUE COPY OF THE STATEMENT MADE BY THE 3RD RESPONDENT BEFORE THE POLICE IN CRIME NO.7440/2012 OF KOCHI CITY TRAFFIC POLICE STATION.** - **P5 TRUE COPY OF THE WRITTEN STATEMENT DATED 15/3/2016 FILED BY THE 3RD RESPONDENT** - **P6 TRUE COPY OF THE I.A 2556/2016 FILED BY THE PETITIONER SEEKING TO IMPLEAD THE JEEVANLAL, THE 4TH RESPONDENT** - **P7 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER** - **P8 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 1ST RESPONDENT** - **P9 TRUE COPY OF THE REGISTRATION PARTICULARS OBTAINED FROM THE MOTOR VEHICLE DEPARTMENT IN RESPECT OF MOTOR CYCLE BEARING REG NO.KL-40-B-7688.** - **P10 TRUE COPY OF THE ORDER DATED 31/5/2016 IN I.A 2556/2016 IN OP(MV) 10/2013 PASSED BY THE MOTOR ACCIDENT TRIBUNAL, ERNAKULAM.** **RESPONDENT(S)' EXHIBITS: NIL** **------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **O.P.(MAC) No.71 of 2016 ----------------------------------------------Dated this the 3[rd] day of August, 2016** ## **JUDGMENT** This Original Petition is filed under Article 227 of the Constitution of India, challenging Ext.P10 order dated 31.05.2016 passed in I.A.No.2556 of 2016 in O.P.(MV) No.10 of 2013 on the files of the Motor Accidents Claims Tribunal, Ernakulam, whereby the Tribunal dismissed the petition for impleading the 4[th] respondent herein as the additional 4[th] respondent in the Claim Petition before the Tribunal. Material facts for the disposal of the original petition are as follows: 2. Petitioner is the 1[st] respondent in O.P.(MV) No.10/2013 on the files of the Motor Accidents Claims Tribunal, Ernakulam [hereinafter called 'the Tribunal']. Claim petition is filed by the 1[st] respondent seeking compensation for the injuries sustained by him in a motor accident on 11.08.2012, when the motor cycle on which the 1[st] respondent was travelling as a pillion rider, hit on an electric post. Petitioner appeared and filed a written statement contending that the said vehicle was sold by him on 20.05.2011. The **O.P.(MAC) No.71 of 2016** 2 Insurance Company denied the liability as the vehicle was covered by an “Act only Policy”, which does not cover the pillion rider. On enquiry, petitioner got the materials such as police reports, 'kaichittu' based on which the motor cycle was released after the accident, statements of respondents 1, 3 and 4 herein, registration particulars of the motor cycle etc., to indicate that at the time of accident, motor cycle was under the ownership and possession of the 4[th] respondent. 3. Matters being so, petitioner filed I.A.No.2556/2016 seeking impleadment of the 4[th] respondent in the party array. However, the Tribunal vide Ext.P10 order dismissed the said application by holding that the 4[th] respondent is not a necessary party to the proceedings. It is thus challenging Ext.P10 order, petitioner has filed this Original Petition. 4. Respondents 3 and 4 have filed a counter affidavit to the Original Petition contending that the 3[rd] respondent was in no way connected with the case except that on the basis of a 'kaichittu' (receipt) signed by him, police had released the vehicle after the incident to the 4[th] respondent who is the brother of the 3[rd] respondent. According to the said respondents, though the 4[th] respondent was in possession of **O.P.(MAC) No.71 of 2016** 3 the vehicle, the registered owner of the vehicle is the petitioner as per the records of the Motor Vehicles authority. That being the position, petitioner is liable for all liabilities arising out of the accident including compensation if any. Therefore, it is contended that, the Tribunal was right in rejecting the impleading application filed by the petitioner seeking to implead the 4[th] respondent. 5. Heard learned counsel for the petitioner and the respective counsel appearing for the respondents. Perused the documents on record and the pleadings. 6. The thrust of the contention advanced by learned counsel for the petitioner is that, at the time of accident, petitioner had no manner of control over the offending vehicle. Possession of the vehicle was transferred by the petitioner when the vehicle was sold. Therefore, petitioner did not have any manner of liability since he was not the actual owner at the time of accident. It is also contended that, merely because necessary application was not preferred before the Motor Vehicles authority to transfer the registration of the vehicle to the name of the 4[th] respondent, was not an enabling circumstance for the 4[th] respondent to seek transfer of the 4 **O.P.(MAC) No.71 of 2016** vehicle to his name. 7. Learned counsel has also invited my attention to a judgment of this Court in _**'Sreekumar v. Abdeen & others**_ ' [2013 (3) KLT 542], wherein this Court had occasion to consider a similar circumstance, taking into account judgments of the Apex Court as well as this Court, and held that in view of Sec.175 of the Motor Vehicles Act, 1988, the _inter se_ dispute in respect of transfer of the vehicle is to be decided by the Tribunal. It was also held that, if it is found that there was a transfer of the vehicle prior to the accident, may be the registered owner continues to be liable to the third parties, but the registered owner is entitled to recover the amount from the real owner. Sec.175 of the Motor Vehicles Act read thus: _“ -_ _**175. Bar of Jurisdiction of Civil Courts.** Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.”_ **O.P.(MAC) No.71 of 2016** 5 8. Therefore, on a reading of Sec.175 of the Act, it is categoric and clear that all disputes arising in respect of the accidents 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 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, and seek to indemnify, if the Tribunal finds that as a registered owner, petitioner is liable to pay the compensation to the 1[st] respondent. 9. So also, Sec.174 of the Act deals with recovery of money from insurer as arrear of land revenue, which read thus: _“_ _**174. Recovery of money from insurer as arrear of land Revenue.** - Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a Certificate for the amount to the Collector and the Collector shall proceed_ 6 **O.P.(MAC) No.71 of 2016** _to recover the same in the same manner as an arrear of land revenue.”_ 10. Therefore, on a reading of Sec.174 of the Act, it is specific and clear, Tribunal is also vested with powers to issue recovery certificate to the Collector in the event of an application made to it by the person entitled to the amount. On a compound reading of Secs.174 and 175, it is conclusively clear that, petitioner is entitled as of right to implead the alleged owner of the vehicle and make his efforts to establish, he sold the vehicle to the 4[th] respondent and therefore liable to compensate the victim of the accident. 11. However, learned counsel for the 1[st] respondent has invited my attention to a Division Bench judgment of this Court in _**'Baby Varghese v. Anitha Roy and others'**_ [2015 (3) KHC 281 (DB)], wherein this Court had occasion to consider transfer of ownership and possession of a vehicle. True, considering the said question, this Court held that, mere fact that sale of vehicle is already effected and possession is handed over would not by itself absolve the liability of the registered owner, if he has not ensured compliance of statutory provisions like reporting transfer of vehicle within 15 7 ## **O.P.(MAC) No.71 of 2016** days of transfer to the Registering Authority and ensuring that vehicle is insured before it is used. No doubt, same also may be a question to be considered by the Tribunal. But the principles of law laid down thereunder is not a bar for the Tribunal to implead the alleged transferor in the proceedings in order to decide the dispute between the petitioner as well as the said respondent in respect of the ownership and possession of the vehicle at the time of accident. Learned counsel for the petitioner also submitted that, petitioner has produced the documents in respect of the accident, secured from the concerned Police station, before the Tribunal. On a reading of Ext.P10 order, it is categoric and clear that Tribunal has considered the sole question of registered ownership of the vehicle in order to dismiss the application. The Tribunal overlooked Sections 174 and 175 of the Act. Therefore, in my considered opinion, Ext.P10 order suffers from the vice of illegality and irrationality, warranting interference. 12. In that view of the matter, I set aside Ext.P10 order passed by the Tribunal in I.A.No.2556 of 2016 in O.P.(MV) No.10 of 2013 and allow the said Interlocutory Application, thereby implead the 4[th] respondent in the proceedings before 8 **O.P.(MAC) No.71 of 2016** the Tribunal. Since the subject matter is pending before the Tribunal from the year 2013, there will be a direction to the Tribunal to complete the proceedings with respect to the filing of written statement etc. etc. within a period of two months and dispose of the claim petition at the earliest. In order to enable the Tribunal to proceed with the matter, the parties are directed to appear before the Tribunal on 18.08.2016 at 11 a.m. If any of the parties are not appearing, the Tribunal shall proceed in accordance with law and comply with the directions contained above. The Original Petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/04.08.2016