The Oriental Insurance Company Limited v. P.T. Gopinathan and P.P. Sekharan

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. 434 of 2008 -----------------------OPMV.431/2003 of M.A.C.T. TIRUR APPELLANT/APPELLANT/2ND RESPONDENT: ------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, TIRUR, NOW REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## RESPONDENTS/PETITIONER AND 3RD RESPONDENT: -------------------------------------------- 1. P.T.GOPINATHAN, S/O. L.KRISHNAN EZHUTHACHAN, PONMANTHODIYIL HOUSE, NADUVATTOM PO. KUTTIPPURAM. 2. P.P.SEKHARAN, S/O. KUNHIPALAN, PARAPPODIYATH HOUSE, NADUVATTOM P.O., KUTTIPPURAM. BY ADV. SRI.T.G.RAJENDRAN BY ADV. SRI.C.J.SOLOMAN 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. =====================** M.A.C.A. NO. 434 2008 **=====================** Dated this the 22[nd] day of March 2012 ## JUDGMENT ## **Pius C.Kuriakose,J.** Insurance Company challenges in this appeal the finding entered by the Motor Accidents Claims Tribunal that the company is liable to indemnify the first respondent, the injured. In the original petition filed before the Motor Accidents Claims Tribunal, the first respondent described himself as the owner of the autorikshaw, which had been insured with the appellant company and capsized leading to injuries on the appellant. It was also stated in the original petition that the autorikshaw was being driven by one Jayarajan who was arrayed as the first respondent in the O.P. In fact in the original petition, only the above MACA 434/2008 -2- said Jayarajan and the appellant company were arrayed as respondents . The appellant company took up a contention that as the claimant/injured himself was the owner and insured, the company is not liable to indemnify at all. Such a contention was raised by the company on the authority of the judgment of the Supreme Court in **Dhanraj v. New India Assurance Co. Ltd.[2004(3)K.L.T.813(SC)]** . Facing such a situation, the first respondent sought to amend the original petition so as to incorporate an averment that the autorikshaw had been sold by the first respondent on 6/1/2001 in faovur of the 2[nd] respondent herein one P.P.Sekharan. The agreement for sale executed by the first respondent in favour of the 2[nd] respondent on 6/1/2001 was produced along with the amendment application which also sought impleadment of the second respondent herein as the supplemental 3[rd] respondent in the O.P. Even though the application for MACA 434/2008 -3- amendment and impleadment was strongly opposed by the Insurance Company, the learned Tribunal allowed the application and accordingly the second respondent herein was impleaded as supplemental third respondent in the O.P. An additional statement of objections was filed by the Insurance Company upon such amendment and it was contended that even if it is assumed that the document of transfer Ext.B2 was a genuine one and also that the possession continued that the first respondent, the injured himself continued to be the insured. The learned Tribunal under the impugned award would accept the case of the first respondent that ownership of the autorikshaw stood transferred in favour of the second respondent and on the basis of the evidence adduced by the parties would award a total compensation of Rs.1,31,300/- under various heads. In this appeal, the challenge is not against the quantum of compensation, but the same is against the finding that the MACA 434/2008 -4- appellant company is liable to indemnify the first respondent. There is challenge also against the amendment allowed **.** It is urged that in any view of the matter, the first respondent continued to be the insured as admittedly in the books of the motor vehicles department, the registered ownership continued with the first respondent. The nontransferring of the policy was fatal to the claim petition. 2. We have heard the submissions of Mr. Mathews Jacob, learned senior counsel for the appellant and Mr. Unnikrishnan Alapatt for the contesting respondents. 3. Mr. Mathews Jacob, Senior counsel submitted that the amendment to the extent it enabled the first respondent- claimant to displace himself completely from the unambiguous admissions contained in the original petition to the effect that he himself was the owner of the vehicle was per se illegal and should not have been allowed. The present claim based on Ext.B2 that physical MACA 434/2008 -5- possession of the autorikshaw was transferred to supplemental 3[rd] respondent cannot be sustained as even at the time of the accident, it was the first respondent who was travelling by the autorikshaw. Apart from producing Ext.B2, no attempt was made to prove Ext.B2 as a genuine transaction by examining the 2[nd] respondent/supplemental 3[rd] respondent who was admittedly a local man available in the locality. Strong reliance was placed by Mr.Mathews Jacob on the judgment of the Supreme Court in **Dhanraj's case(supra)** and it was argued that the situation of the owner being compensated by the Insurance company cannot be countenanced in law. Mr. Mathews Jacob, learned senior counsel highlighted that as the owner it is the first respondent/claimant who is vicariously liable for the negligence of the driver and in that view of the matter the present award amounts to awarding compensation for somebody who is responsible for the negligence. MACA 434/2008 -6- Mr.Mathews Jacob would draw our attention to the definition of the word owner in Section 2(30) of the Motor Vehicles Act and submitted that in view of the admitted position that the first respondent continues to be the registered owner, the present award cannot be sustained. The learned senior counsel also drew our attention to the judgment of the Supreme Court in **Jose. v. Chacko [2001 (3)K.L.T.633(SC)** and submitted that even if it is assumed that Ext.B2 is a genuine document, then also the situation that the policy was never transferred in favour of the 2[nd] respondent will be of consequence as admittedly the registration was never mutated in the books of the motor vehicles department. 4. Per contra, Shri Unnikrishnan Alapatt would support the impugned award. He also drew our attention to the definition of the word owner in Section 2(30) and submitted that it is clear from Ext.B2 that the vehicle is subjected to MACA 434/2008 -7- a hire purchase transaction. When the vehicle is subjected to a hire purchase transaction, person in possession qualifies as owner. Therefore, according to Mr.Unnikrishnan Alapatt, the 2[nd] respondent-Sekharan qualifies as the owner. Ext.B2 contains express recitals regarding transfer of possession of the vehicle to the 2[nd] respondent. In the face of Ext.B2, it is absolutely unnecessary for the 2[nd] respondent to give oral evidence as any oral evidence to be given by him could not have been contrary to what is recorded in Ext.B2 regarding transfer of possession. Mr.Unnikrishnan submitted that the order allowing amendment has become final and was accepted by the Insurance company inasmuch as the company filed an additional statement of objections accepting the amendment. It is not open to the company to challenge the order of amendment in the present appeal. The admission in the original petition filed before the Tribunal MACA 434/2008 -8- that the first respondent was the owner was an admission made with reference to ownership in the R.C.book and not the actual ownership . The learned counsel referred to the provisions of the Sale of Goods Act and submitted that in the case of goods like Motor Vehicles what is more important is possession. Possession has been and is with the 2[nd] respondent. Mr.Unnikrishnan also submitted that the application was filed not only under Section 166 of the Motor Vehicles Act but also under Section 140 of the Act. According to him, even if this Court is inclined to interfere with the award, then also the award be converted as one under Section 140 of the Moor Vehicles Act and the compensation payable under Section 140 of the Act which is based on no-fault liability principle be awarded. 5. Having given our anxious consideration to the rival submissions addressed at the Bar, we are of the view that the appellant is on strong grounds. The version of the MACA 434/2008 -9- respondents that possession of the autorikshaw in question stood transferred to the 2[nd] respondent a month prior to the accident does not in spire any confidence in our minds. Had it been so, nothing prevented the first respondent from stating so in the original petition. According to us, the amendment sought for resulted in serious prejudice to the appellant company and should not have been allowed by the learned Tribunal. Even if Ext.B2 is assumed to be a genuine document, the evidence available on record including circumstantial evidence will probabilise the version of the appellant company that the first respondent retained possession of the autorikshaw. It is not difficult for us to accept the argument of the learned senior counsel that the first respondent continued to be the owner. So this is a case where the learned Tribunal under the impugned award has directed the appellant company to indemnify the owner of the offending vehicle notwithstanding the obvious MACA 434/2008 -10- position that he was vicariously liable for the negligence which is the cause of the accident. The argument of Mr.Unnikrishnan that the award should be converted as one under Section 140 also cannot unfortunately be accepted, as such a course is against the principles laid down by the Supreme Court in **Dhanraj's case(supra)** . The impugned award has to be interfered with. We set aside the same. The appeal is allowed. The amount deposited by the appellant company be released to the appellant company forthwith. ## **Sd/-** **PIUS C.KURIAKOSE, JUDGE** **Sd/A.V.RAMAKRISHNA PILLAI, JUDGE** **ks.** **True copy P.s.to Judge** MACA 434/2008 -11-