## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE M.N.KRISHNAN**
**TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930**
**MACA.No. 356 of 2007(B)**
**---------------------OPMV.148/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA**
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## **APPELLANT/2ND RESPONDENT:**
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## **V. VARGHESE, S/O. CHACKO VARGHESE, THUNDIYIL VEEDU, VENKARINJI P.O.,KOLLAMADA VILLAGE PATHANAMTHITTA DISTRICT.**
**BY ADV. SRI.S.MUHAMMED HANEEFF**
## **RESPONDENTS: CLAIMANT AND RESPONDENTS 1 AND 3:**
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## **1. DILEEP, S/O. VASU, CHEKKOTHAPARAMBIL HOUSE, MADUKKA KARA, MADUKKA P.O., KOTTAYAM DISTRICT.**
**2. VISWANATHAN @ VISWAPPAN, PATHIYARATHODIYIL HOUSE, MADUKKA KARA, KOTTAYAM DISTRICT.**
**3. THE ORIENTAL INSURANCE CO. LTD., KOTTAYAM.**
**4. SHAKEER, S/O. SHAIDUMUHAMMED, THAIPPARAMBIL VEETTIL, KANJIRAPPALLY P.O., KOTTAYAM DISTRICT.**
- **DELETED.**
**R4 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 9.7.07 IN I.A.1422/07**
**BY ADV. SRI.P.BABU KUMAR FOR R2 SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 GOVERNMENT PLEADER R2 BY ADV. SRI. N. RATHEESH.**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2008, ALONG WITH MACA NO. 362 OF 2007 MACA NO. 359 OF 2007 MACA NO. 357 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **ORDER ON I.A.2482 OF 2007 IN M.A.C.A. NO. 356 OF 2007**
**DISMISSED**
**16/9/08**
**SD/- M.N. KRISHNAN, JUDGE.**
**[ True Copy ]**
**P.A. TO JUDGE.**
## **M.N. KRISHNAN, J.**
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## **J U D G M E N T**
All these appeals are preferred against the common awards passed by the Motor Accidents Claims Tribunal, Pala in O.P.(MV)Nos.148/99, 448/96, 189/99 and 147/99 respectively. The appellant before this Court is the registered owner of the vehicle. The Tribunal found that an accident has taken place with 11 persons on bode in a goods carrying vehicle. It is found that on account of the negligent driving of the driver, the vehicle overturned resulting in serious injuries. The present appellant did not bother to contest the case before the Tribunal. The first respondent in the claim petitions namely the driver contested the case denying the factum of his negligence. It was found against him. The Tribunal also found that from the evidence of RW1, the administrative officer of the insurance company coupled with Ext.B1 policy that the vehicle insured is a goods
**M.A.C.A. NOs. 356, 357, 359 & 362 OF 2007**
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carrying vehicle which was covered only by an Act only policy which does not cover the risk of passengers travelling in the said vehicle. It is aggrieved by that decision the appellant has come up in appeal with the contention that he was not the owner of the vehicle and subsequently also with the contention that the insurance company is bound to indemnify.
2. So far as the first question regarding the dispute regarding the ownership it has to be stated that the accident had taken place as early as in the year 1996 and he had been served with notice and he did not even file a vakalath or enter appearance disputing the ownership of the jeep. Along with the memorandum of appeal he had produced Annexure which would show that he had sold the vehicle for Rs.16,000/- and as a part of consideration of Rs.8,000/-. It is also a settled proposition of law that in order to have an effective complete sale of vehicle there must be total payment of consideration with divestiture of title. Merely producing some document in the appellate stage after a
**M.A.C.A. NOs. 356, 357, 359 & 362 OF 2007**
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period of 11 years after the accident cannot be considered as a ground enough to give an opportunity to the persons to contest the case. There cannot be any dispute that he is the registered owner of the vehicle. He should have been more vigilant and careful. As per the terms of the agreement entered into between him and the real purchaser if there is liability cast on the alleged purchaser and if the law so permits he can initiate action on the basis of the agreement in appropriate forum but not in this case. Learned counsel would contend he must be given an opportunity to implead that person and contest the case. I am not inclined to grant an opportunity at this stage after a period of 12 years when the poor claimants are driven from pillar to post to derive compensation and on the strength of an appeal he had obtained a stay which makes it clear that the intention of the appellant is only to protract further which I do not want to entertain or encourage. Therefore I am not accepting that contention for the prayer for remand.
**M.A.C.A. NOs. 356, 357, 359 & 362 OF 2007**
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3. The next question is regarding the liability of the insurance company. The insurance company has raised a contention that being a goods vehicle and as the vehicle was used as a passenger vehicle carrying 11 persons it is not liable to indemnify for the reason that the Act only policy did not cover the said passengers. It is a settled proposition of law that S.147 of the M.V. Act which stood prior to the amendment they were in pari meteria and it did not cover the risk of the owner of the goods or representative of the owner of the goods travelling in the vehicle. It was only by subsequent amendment under the Act 54 of 1994 it had become compulsory insurable, that the owner of the goods and the representative of the owner of the goods are to be covered by the policy. This has been well settled in the decision of the Apex Court reported in _**Asha Rani's case, New India Assurance Co. Ltd. v. Asha Rani (2003 (1) KLT 165)**_ .
## **M.A.C.A. NOs. 356, 357, 359 & 362 OF 2007**
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4. Now the crucial question for determination is whether these persons were travelling as owner of the goods or representative of the owner of the goods. A First Information Statement was given by one Mr.Rajeev which would indicate that 11 persons travelled in the jeep. His statement reveal that they were returning from Sabarimala and he never stated that they were travelling in the goods vehicle in the capacity as the owner of the goods or representative of the owner of the goods. Learned counsel for the appellant would contend before me that such a statement given by Mr.Rajeev is not binding on the other claimants at all but it has to be remembered that it was exhibited as a document by the claimants in the claim application and therefore they cannot ignore the same. Further it has to be stated that in charge sheet also it is revealed that CW1 to 11 therein were the passengers of the vehicle at the time of the accident. Therefore a belated attempt in order to bring the insurance company also to the liability cannot be accepted as there is no credible evidence
**M.A.C.A. NOs. 356, 357, 359 & 362 OF 2007**
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to that effect. It is all the more so when there is not even a pleading in the petition that they were travelling in the vehicle as owner of the goods or representative of the owner of the goods. It is a settled position of law that parties cannot be permitted to adduce evidence beyond the pleadings. So even if evidence is adduced against the pleadings the only way the Court can deal with this is to ignore the same and refer to the pleaded case in the claim petition. So I do not find any mistake committed by the learned Tribunal in holding that the claimants have miserably failed to prove that they were travelling as owner of the goods or representative of the owner of the goods. It is further amplified when in the First Information Statement it is seen that they were returning from Sabarimala and not proceeding to Sabarimala. So all these facts would only reaffirm the finding rendered by the Tribunal. A registered owner is an owner who is always liable even if the inclusive definition under Sec.2(30) of the M.V.Act is taken into consideration. Unless and until there is concrete evidence to
**M.A.C.A. NOs. 356, 357, 359 & 362 OF 2007**
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show that there is some other person in possession, there cannot be any finding against him at all. Therefore, I do not find any merit in these contentions and the appeals lack merit and therefore they are dismissed.
Since huge amount is involved I grant a period of three months time for the appellant in this case to discharge the liability and in case of failure to do so the claimants are at liberty to proceed with the revenue recovery proceedings which is already initiated and pending.
## **M.N. KRISHNAN, JUDGE.**
ul/-
