T.S. Jayaprakash v. The New India Assurance Company Ltd. & Others (MACA.No. 1077 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 14TH DAY OF FEBRUARY 2017/25TH MAGHA, 1938** **MACA.No. 1077 of 2016 ()** ## **-------------------------** **(AGAINST THE AWARD DATED 31-07-2015 IN OPMV 1045/2005 of II-ADDITIONAL MACT, THIRUVANANTHAPURAM)** ## **APPELLANT/RESPONDENT NO.1:** **------------------------------------------------** **T.S. JAYAPRAKASH ADVOCATE, AGED 55 YEARS, S/O. V.S.SREEDHARAN NAIR, RESIDING AT CHITHIRA, DIAMOND HILL, VELLAYAMBALAM, THIRUVANANTHAPURAM, HAVING ALSO HIS OFFICE AT TC 24/568, NEAR GUEST HOUSE, THYCAUD, THIRUVANANTHAPURAM.** **BY ADVS.DR.S.GOPAKUMARAN NAIR (SR.) SRI.P.CHANDRASEKHAR SRI.P.SREEKUMAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SRI.P.A.MOHAMMED SHAH SRI.K.NANDAKUMAR SMT.MARY RESHMA GEORGE SRI.P.K.ABDU RAHEEM SMT.P.M.MAZNA MANSOOR** ## **RESPONDENT(S)/RESPONDENTS/CLAIMANTS 2 TO 4 & RESPONDENTS 2 & 3:** **---------------------------------------------------------------** **1. K. RADHA LEKSHMI AMMA W/O. V.BHASKARA PILLAI (DECEASED APPLICANT), AGED 77, TC 2/3029, SREELAKSHMI, PANACHAMOOD LANE, PATTOM, THIRUVANANTHAPURAM-695004.** **2. B.R.SYAM AGED 51 YEARS, S/O. DECEASED APPLICANT OF -DO- -DO-** - **B.R. RAJI AGED 47 YEARS, -DO- -DO-** - **R.CHRISTUDAS S/O. RAJAPAN, BATHEL HOUSE, THANIMOODU, MANJALUMOODU P.O., ARUMANA VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU-629151.** **MACA.No. 1077 of 2016 ()** **-2-** ## **5. THE NEW INDIA ASSURANCE COMPANY LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KOTTARATHIL BUILDING (ANNEXES), PALAYAM, THIRUVANANTHAPURAM-695034.** **R1 -R 3 BY ADV. SRI.J.S.AJITHKUMAR R5 BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMG** C.K.ABDUL REHIM & SHIRCY V, JJ. ----------------------------------------------MACA.No.1077 of 2016 ----------------------------------------------Dated this the 14th day of February, 2017 ## JUDGMENT ## Abdul Rehim,J. The above appeal is instituted by the 1[st] respondent in OP(MV).No.1045/2005 before the IInd Addl. MACT, Thiruvananthapuram. Respondents 1 to 3 herein are the additional petitioners/additional claimants 2 to 4 before the Tribunal. In the accident in question, which occurred on 23.3.2003, the 1[st] petitioner (original claimant) before the Tribunal sustained very severe injuries and he died during pendency of the claim petition before the Tribunal. Addl. Claimants 2 to 4 got impleaded and prosecuted the claim petition in their capacity as legal heirs and dependents of the deceased. The appellant herein was impleaded in the claim petition as registered owner of the vehicle involved in MACA.1077/2016 2 the accident. The 2[nd] respondent before the Tribunal (the 4[th] respondent in the appeal) was the person driving the vehicle at the time of the accident. The 3[rd] respondent therein (the 5[th] respondent in the appeal) was impleaded as insurer of the vehicle. From the evidence on record the Tribunal found that, the vehicle in question was not under coverage of any valid insurance policy issued by the Insurance Company impleaded, and respondents 1 and 2 before the Tribunal were held liable for payment of the amount of compensation awarded. Having found that they are the registered owner and driver of the vehicle which caused the accident, the Tribunal further directed the appellant herein to make deposit of the amount before the Tribunal, within a period of two months. It is aggrieved by the said award the appellant is approaching this court. 2. Contention of the appellant is mainly that, he was successful in proving before the Tribunal that the ownership and possession of the vehicle in question was transferred to MACA.1077/2016 3 the 2[nd] respondent much prior to the date of the accident. Therefore the Tribunal went highly erred in fixing the liability on the appellant, merely because he continued to be the registered owner, is the contention. Further contention raised is that, having found that respondents 1 and 2 before the Tribunal are jointly and severally liable to pay the compensation, the Tribunal was not justified in directing the appellant to make deposit of the amount. 3. While considering the contentions raised it is not in dispute that the vehicle in question was not covered under any valid insurance policy at the relevant time of the accident. Therefore nobody can challenge exoneration of the 3[rd] respondent Insurance Company from the liability. Contention raised by the appellant before the Tribunal was that, the 2[nd] respondent before the Tribunal was the ownercum-driver of the vehicle at the time of the accident. In support of such a contention the appellant had produced Ext.B1 agreement before the Tribunal which was executed MACA.1077/2016 4 between the appellant and the 4[th] respondent herein. The said agreement would indicate that the appellant had transferred the vehicle in question to the 4[th] respondent with effect from 13.10.2001. The recital of the agreement is also to the effect that, from the date and time of the agreement at all liability with respect to the vehicle, including criminal cases etc; would stand shifted to the 4[th] respondent. It is pertinent to note that the 4[th] respondent remained exparte before the Tribunal. The execution of Ext.B1 agreement was not disputed by the 4[th] respondent. The appellant had produced Ext.B4, which is the certified copy of a notice issued by the investigating officer in Crime No.504/2003 of City Traffic Police station, Thiruvananthapuram, which is the case registered with respect to the accident in question. The said notice was seen issued to the 4[th] respondent requiring him to furnish details with respect to the person who was driving the vehicle on the date of the accident on 23.3.2003; and also MACA.1077/2016 5 requiring for production of the documents pertaining to the vehicle in question. Ext.B5 is the certified copy of the reply submitted by the 4[th] respondent to Ext.B4 notice. In the said reply he has admitted that the vehicle is in his ownership and possession, by virtue of an agreement and that he was driving the vehicle at the time of the accident. Ext.B6 is the 'Kychit' executed by the 4[th] respondent for getting release of the vehicle from the police custody. All the above said documents relating to the police case would amply prove that, at the time of the accident the 2nd respondent was holding ownership and possession of the vehicle based on Ext.B1 agreement. But the Tribunal, while evaluating the evidence, observed that Ext.B1 is an unregistered agreement and the appellant had failed to examine the witnesses or the scribe of Ext.B1 agreement, in order to prove its genuineness. It is further observed by the Tribunal that no proof was adduced with respect to payment of the balance sale consideration and with respect to the MACA.1077/2016 6 return of the security cheque. Therefore it is found that, ownership of the car in favour of the 2[nd] respondent is not proved through cogent evidence. We are of the considered opinion that the above said findings are not legal and proper, as long as the 2[nd] respondent before the Tribunal remained exparte. The uncontroverted evidence adduced by the appellant to prove the transfer of ownership and possession ought to have been accepted by the Tribunal. This is especially in view of the documents produced as Exts.B4 to B6, which pertains to the police case registered with respect to the accident in which there is a clear admission from the side of the 2[nd] respondent with respect to ownership and possession of the vehicle. 4. But the pertinent question need to be considered is as to whether the appellant can be exonerated from the liability as long as he continues to be registered owner of the vehicle. In a Division Bench decision of this hon'ble court in **Baby Varghese vs. Anitha Roy and others** MACA.1077/2016 7 **(2015(3) KHC 281)** equivalent to **2015 (3) KLT 78** it was held that, the mere fact that the sale of vehicle was already effected and possession was handed over would not by itself absolve liability of the registered owner, if he has not ensured compliance of the statutory provisions like reporting the transfer of vehicle within 15 days to the Registering Authority and ensuring that vehicle is insured before it is used. This court, had referred to a decision of the hon'ble Supreme Court wherein liability of a registered owner even after sale of the vehicle was considered with reference to definition of the term 'owner' contained in section 2(30) of the Motor Vehicles Act. The apex court held that requirement of an intimation is mandated by section 15 and the requirement of the vehicle to be insured is mandated under section 46 of the Act. On consideration of those provisions as well as the earlier legal precedents it was specifically held that contexts of the case require different meaning of the definition for the word 'owner'. A MACA.1077/2016 8 deviation is called from the definition, in cases where the statutory provisions and procedures are observed and not in a case where the provisions are violated. In cases where the transferees did not perform their obligations under the statute to report the transfer of the vehicle within 15 days of the transfer and also to get the vehicle insured before its use or permitted to be used in a public place, it cannot be said that the definition of the owner requires a different meaning or interpretation, is the findings. Therefore it is unequivocally observed that the person who is continuing to be the registered owner is liable to indemnify the claim of a third party, if he has not ensured compliance of the statutory provisions like reporting transfer of vehicle within 15 days of transfer to the Registering Authority and also ensuring insurance of the vehicle. The above proposition has got its reliance on decisions of the Supreme Court in **Mohammed P.P vs. Rajappan and others (2008 KHC 7287)** equivalent to **2008(17) SCC 624** and **Pusha alias** MACA.1077/2016 9 **Leela and others vs. Shakuntala and others (2011 KHC 4037)** equivalent to **AIR 2011 SC 682.** 5. Based on the above findings the appellant could not succeed in assailing the impugned award to the extent it has not exonerated him from the liability for payment of the compensation. But the question remains as to whether the Tribunal was justified in not permitting the appellant in recovering the amount of compensation from the 2[nd] respondent in case if he was compelled to pay the compensation to the claimants. In that context, it is also relevant as to whether the direction issued by the Tribunal to the appellant to make deposit of the compensation is sustainable or not. Learned senior counsel appearing for the appellant raised a contention that in view of the bar of jurisdiction of the Civil Courts contained in section 175 of the Motor Vehicles Act 1988, inter-se disputes between the respondents regarding the transfer of vehicle and the consequent liability ought to have been decided by the MACA.1077/2016 10 Tribunal. In this regard decision rendered by the learned Judge of this court in **Sreekumar vs. Abdeen (2013 (3) KLT 542)** was pressed into service. It is found that in view of section 147, the Tribunal was empowered to issue recovery certificate whenever it is found that the amount is due from 'any person'. Since the term 'any person' contained in section 174 of the Act includes the registered owner who had transferred the vehicle prior to the accident and since section 175 of the Act ousts jurisdiction of the Civil Court to decide any question relating to any claim which can be adjudicated by the Tribunal, it is held that the Tribunal alone has jurisdiction to adjudicate on dispute between the registered owner and the de-facto owner regarding ownership of the vehicle involved in the accident. The dictum contained in **Sreekumar's case (** supra) was followed in yet another decision of this court in **Jaffer P.Aboobacker vs. Vishnu P. and others (2016 (4) KHC 221)** equivalent to **(2016(3) KLT SN 107).** It is MACA.1077/2016 11 reiterated that a combined reading of section 174 and 175 would make it specifically clear that the Tribunal is vested with powers to implead the owner of the vehicle to whom the registered owner had transferred possession and to make efforts to establish that he had sold the vehicle and to adjudicate on the question regarding the liability inter-se between such parties. 6. Considering the legal position remaining settled as above and also based on the findings rendered hereinabove, it is clear that the appellant herein had transferred ownership and possession of the vehicle to the 2[nd] respondent prior to the accident. We are of the opinion that the impugned award requires modification to that extent on the context of the factual situation emerging . Therefore, while upholding the impugned award to the extent it make the appellant jointly and severally liable to pay the amount of compensation to the claimants, we make it clear that on such payment the appellant will be entitled MACA.1077/2016 12 to recover the amount from the 2[nd] respondent before the Tribunal who is the 4[th] respondent in this appeal. The appeal is allowed to the above extent. C.K.ABDUL REHIM, JUDGE SHIRCY V, JUDGE Pmn/ MACA.1077/2016 13