P. Venunathan (deceased) v. District Executive Officer, Kerala Motor Transport Workers Welfare Fund Board and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945** ## **WP(C) NO. 25368 OF 2011** ## **PETITIONER/S:** P.K.VENUNATHAN (DIED), PULLOSSERIL HOUSE, KANJIRAMATTOM, KANJIRAMATTOM P.O.,, ERNAKULAM DISTRICT. BY ADVS. SRI.M.R.NANDAKUMAR SRI.JOSWIN THAMBI KUNNATH ## **RESPONDENT/S:** 1 DISTRICT EXECUTIVE OFFICER KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD,, SRM ROAD, ERNAKULAM-18. 2 THE SUB REGIONAL TRANSPORT OFFICER TRIPUNITHURA-682301. 3 SURESH S/O.DIVAKARAN POKKETH HOUSE, PERUMBAVOOR-683542. 4 SURESH S/O.KRISHNANKUTTY, 7/61 VELLAPPILLY HOUSE, PALLARIMANGALAM,, KOTHAMANGALAM-686691. BY ADV SRI.P.RAMAKRISHNAN SC KMTWF BOARD, SRI.ARUN AJAY SANKER, SR.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 25368 OF 2011** 2 ## J U D G M E N T It has been brought to notice that petitioner during the pendency of the writ petition had died. On the oral request of the petitioner’s counsel, legal heirs of the deceased petitioner, the list of which would be filed in due course, are permitted to plead and represent the deceased petitioner. 2. The deceased petitioner is stated to have purchased a LMU Goods Carriage TATA 407 vehicle bearing Regn.No.KL-03-F-2002 from the third respondent, (Suresh, S/o.Divakaran) by virtue of sale agreement dated 6.11.2009, Ext.P1, and thus was the custodian and owner of the vehicle. Registered owner of the vehicle was the fourth respondent, (Suresh, S/o.Krishnankutty, 7/61 Vellappilly House, Pallarimangalam, Kothamangalam). Petitioner is stated to have changed registration of the vehicle in his name. With the aim in mind to make payment of Kerala Motor Transport Workers Welfare Fund contribution **WP(C) NO. 25368 OF 2011** 3 of workers under the Kerala Motor Transport Workers Welfare Fund Scheme, petitioner approached the first respondent to make payment from November, 2009, but he was told that welfare fund contribution for the previous period was also due, and that in view of the provisions of Section 10 of the Kerala Motor Transport Workers Welfare Fund Act, 1985, ('Act', for short) there would be a charge on the vehicle and all liabilities had to be cleared, irrespective of the fact whether the liability was of the previous owner or not. It was in these circumstances, petitioner has approached this Court with the following prayers: “i) Declare that the petitioner's liability to pay welfare fund contribution to the 1[st] respondent arises only after he purchased the vehicle by virtue of Exhibit P1. ii) Issue a writ of mandamus or any other appropriate writ, order or directions directing the 1[st] respondent to issue NOC to the petitioner accepting Motor Workers Welfare Fund Contribution from 11/2009 onwards. iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing to the 1[st] respondent to proceed against the 3[rd] and 4[th] respondents for liability, if any in respect of Motor Workers **WP(C) NO. 25368 OF 2011** 4 Welfare Fund Contribution of vehicle bearing registration No.KL-03-F-2002.” 3. This Court while admitting the writ petition on 28.9.2011 passed the following order: “Admit. Sri.P.Ramakrishnan, learned Standing Counsel takes notice for R1. Issue urgent notice returnable in 10 days to other respondents. There will be an interim order directing the first respondent to receive, if tendered by the petitioner, the arrears of contribution payable under the Kerala Motor Transport Workers Welfare Fund for the period commencing from 6.11.2009 and to issue a clearance certificate on a provisional basis. The question whether the petitioner is liable to pay contribution for the period prior to 6.11.2009 will be decided at the time of final hearing.” This Court has not been apprised whether the aforesaid order dated 28.9.2011 was complied with or not. 4. On the other hand, learned counsel appearing on behalf of the first respondent submitted that as per Section 8A of the Act, registered owner of the vehicle cannot be **WP(C) NO. 25368 OF 2011** 5 permitted to remit tax of the vehicle until and unless arrears of the welfare fund contributions are cleared. It was in these circumstances, first respondent had apprised the petitioner to clear the arrears of welfare fund contribution for the period prior to the sale agreement dated 6.11.2009. 5. I have heard the learned counsel for the parties and appraised the paper book. 6. Section 10 of the Act by substituting a new Section in place of the earlier one, was amended on 7.6.2005. The amended provision reads as follows: “10. Mode of recovery of moneys due from the employer, employee and self-employed person- (1) The amount of arrears for which demand notice has been issued under subsection (1) of Section 8, shall be recovered together with interest thereon at the rate of 9 per cent per annum in the same manner as an arrear of public revenue due on land. (2) Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, where an employer transfers his vehicle before paying any amount due under this Act in respect of the vehicle, the liability **WP(C) NO. 25368 OF 2011** 6 wherefore accrued before the date of the transfer, such amount shall be a charge on the vehicle so transferred”. 7. The facts as projected by the petitioner shows that petitioner purchased the vehicle vide agreement dated 6.11.2009, Ext.P1, from the third respondent, who allegedly purchased the same from the fourth respondent on the basis of a sale agreement entered into between respondent Nos.3 and 4. Even if the parties had set their hands together to honor the liability of the previous dues, there would be a charge of arrears on the vehicle, irrespective of the fact that the vehicle had exchanged hands and ownership. The aforementioned view is upheld by another Bench of this Court in Ummar v. Joint Regional Transport Officer & Others [2014 (4) KHC 303] . 8. It is the prerogative of the petitioner/his legal heirs to clear the dues of welfare fund contributions and claim the amount either from the third respondent or the fourth respondent, in accordance with law, but cannot **WP(C) NO. 25368 OF 2011** 7 ward off the liability of previous dues by taking the aid of agreement dated 6.11.2009, Ext.P1. Petitioner is at liberty to clear the dues and seek recovery of the amount from the erstwhile owners of the vehicle, in accordance with law. With the aforementioned observations, the writ petition would stand dismissed. Sd/AMIT RAWAL JUDGE jg 8 ## **WP(C) NO. 25368 OF 2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** P1 : TRUE COPY OF AGREEMENT DATED 6.11.2009. P2 : TRUE COPY OF REGISTRATION CERTIFICATE.