Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943 MACA.No.3325 OF 2015(C) AGAINST THE AWARD IN OPMV 1108/2010 DATED 13-01-2015 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOLLAM APPELLANT/S: JAMALUDEEN, AGED 58 YEARS S/O.ALIYARUKUNJU RAFEEK MANZIL, CHANDANATHOPPU,KOTTAMKARA, KOLLAM. BY ADVS. SRI.V.JAYAPRADEEP SRI.V.JAYADHAR RESPONDENT/S:
1 GANGA, AGED 32 YEARS, W/O.SANTHOSH KUMAR, THADATHIL PUTHEN VEEDU,EDAVATTOM, NANTHIRICKAL, VELLIMON P.O.KOLLAM - 691 511. 2 SANGEETHA, AGED 6 YEARS, D/O.SANTHOSH KUMAR, -DO- (REPRESENTED BY THE IST RESPONDENT). 3 RAMANI, AGED 53 YEARS, M/O.SANTHOSH KUMAR, -DO- 4 P.K.KALA, D/O.MOHANAN, AMMODANAM, CHERUMOOD, VELLIMON P.O,KOLLAM - 691 511 5 NOWSHAD, S/O.ABDUL AZEEZ, CHARUVILA PUTHEN VEEDU,MAKALUVILA JUNCTION, EDAVATTOM CHERY,PERINAD VILLAGE, KOLLAM - 691 601. R1 to 3 BY ADV. SRI.MANOJ RAMASWAMY BY ADV. SMT.SANJANA R.NAIR R5 BY ADV. SRI.K.B.ARUNKUMAR R4 BY ADV. SMT.RENY ANTO BY ADV. SRI.K.SIJU
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.S.DIAS, J.
====================== MACA No.3325 of 2015 ====================== Dated this the 23rd day of March, 2021.
JUDGMENT
The appellant was the additional third respondent in OP(MV) 1108/2010 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents 1 to 3 were the claimants and the respondents 4 and 5 were the respondents 1 and 2 in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition.
2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, inter alia, averring
that on 20.4.2010 while Sri.Santhosh Kumar (deceased) - the husband of the first petitioner and father of the petitioners 2 and 3 - was riding a scooter bearing registration No.KL-02/C-1215 along the Kundara- Anchalummoodu public road, a Bajaj pick-up van (offending vehicle) bearing registration No.KL-2/J 1994 hit the scooter of Sri.Santhosh Kumar. Even though Santhosh Kumar was taken to the Sanker's Hospital, Kollam, he succumbed to his injuries on the same day. The deceased was a sawmill worker by profession and earning an amount of Rs.7,500/- per month. The petitioners were depending on Sri.Santhosh Kumar for their livelihood. Hence the respondents 1 to 3 were jointly and severally liable to pay the compensation amount, which the petitioners quantified at Rs.5,00,000/-.
3. The first respondent - the original owner of the offending vehicle - filed a written statement contending that she was an unnecessary party to the proceedings because she had sold the offending vehicle to the additional third
respondent on 3.6.2003. The additional third respondent had transferred the ownership of the offending vehicle to his name, which is reflected in page No.10 of the registration book of the offending vehicle. The accident took place on 20.4.2010. Therefore, the first respondent may be exonerated from the case.
4. The second respondent - the driver of the vehicle - did not contest the proceedings and was set ex parte.
5. The additional third respondent filed a written statement contending that the accident occurred on 20.4.2010, but he had transferred the vehicle to one Sunil Kumar on 20.12.2013. It was further pleaded that at the time of transfer of the vehicle, the vehicle was having a
hypothecation with Aswathy Finance. Nevertheless, the vehicle was sold to Sunil Kumar with the hypothecation. The third respondent had no relationship or acquaintance with the second respondent. He would produce documents to prove that the vehicle was sold at the appropriate stage. Hence, the claim petition be dismissed.
6. The petitioners marked Exts A1 to A5 in evidence. The additional third respondent was examined as RW1 and Ext B1 was marked through him. Ext X1 the case diary of the Police was marked as a third party Exhibit.
7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioners to realise an amount of Rs.8,68,000/- with interest @ 9% per annum from the second respondent and additional third respondent.
8. Aggrieved by the impugned award passed by the Tribunal, the additional third respondent is in appeal.
9. Heard Smt.Jayapradeep V, the learned counsel
appearing for the appellant, Sri.Manoj Ramaswamy, the learned counsel appearing for the respondents 1 to 3, Sri.K.Siju, the learned counsel appearing for the fourth respondent and the Sri.K.B Arun Kumar, the learned counsel appearing for the fifth respondent.
10. The question that emanates for consideration in this appeal is whether the impugned award passed by the Tribunal is erroneous or not.
11. Ext A1 FIR and Ext X1 case diary of the Police substantiates that the accident had taken place on
20.4.2010. In Ext X1, the Police have charge-sheeted the second respondent for offences punishable under Secs 279 and 304(A) of the Indian Penal Code for having committed the accident. Ext A4 proves that the deceased had expired on 20.4.2010 as a result of the accident. Ext A5 proves that the petitioners are the dependents of the deceased.
12. The pivotal point contended before this Court is that the additional third respondent is not the owner of the offending vehicle.
13. Admittedly, the first respondent was impleaded as
the owner of the vehicle. She filed a written statement contending that the vehicle was sold by her to the additional third respondent on 3.6.2003 and the ownership was transferred to the additional third respondent, as reflected on page 10 of the registration book of the offending vehicle. Accordingly, the additional third respondent was impleaded as a party in the claim petition by order in IA 3226/2013 dated 24.5.2013.
14. Even though the additional third respondent filed a
written statement contending that he had sold the vehicle to one Sunil Kumar, as per Ext B1 on 20.12.2013, undisputedly the ownership was not transferred in the registration book of the offending vehicle. Ext B1 receipt produced by the
additional third respondent is not sufficient to prove the alleged transfer, even though the transaction is governed by the Sale of Goods Act. Nonetheless, in view of the mandate under Sec.50 of the Motor Vehicles Act, 1988, the additional third respondent was obliged to inform the registering authority about the alleged transfer. So long as the same was not done, the additional third respondent cannot be permitted to contend that he had sold the vehicle much prior to the accident and that the alleged transferee had not effected the transfer of ownership in the registration book. Moreover, the Tribunal after analysing the evidence of RW1, and verifying Ext B1, came to the conclusion that there is no sufficient address to identify the said Sunil Kumar.
15. The entire onus of proof was on the additional third respondent to establish by cogent evidence that he sold the vehicle to Sunil Kumar on 24.5.2013. On a closer scrutiny of Ext B1, it is seen dated 24.5.2003. Although, the third respondent later contended that by an inadvertent mistake the date was wrongly pleaded in the written statement, the Tribunal refused to grant leave to amend the pleadings.
Even if the said amendment was permitted, it is inconsequential because the additional third respondent failed to prove the transfer, failed to furnish the details of the alleged transferee, failed to implead the alleged transferee as a party in the claim petition and effect transfer of ownership of the offending vehicle as per the mandate under the law.
16. On an overall re-appreciation of the pleadings and materials on record, I am of the considered opinion that, the additional third respondent is the owner of the offending vehicle as reflected in the registration book. In such circumstances, the finding of the Tribunal that the respondents 2 and 3 are liable to pay compensation to the petitioners is in accordance with law and justifiable. I do not find any error or illegality in the impugned award warranting interference by this Court. In light of the aforesaid finding, I also hold that the consequential orders namely Annexures A4, A6 and A8 are also in accordance with law. In the result, the appeal fails and is dismissed, confirming the impugned award passed by the Tribunal. The parties shall bear their respective costs. Sd/- C.S.DIAS SKS/23.3.2021 JUDGE APPENDIX APPELANTS ANNEXURES A1- CERTIFIED COPY OF THE SALE LETER ACCEPTED BY THE LEARNED TRBUNAL. A2-CERTIFIED COPY OF THE WRITTEN STATEMENT
A3-TRUE COPY OF THE REVIEW PETITION IA 3584/2015 IN OP MV A4-CERTIFIED COPY OF THE ORDER DATED 23.9.2015 IN I.A. 3584/2015 IN OPMV 1108/2020 A5-TRUE COPY OF THE IA 3586/2015 DATED 12.6.2015 FOR CORRECTION A6-CERTIFIED COPY OF THE ORDER DATED 23.9.2015 IN IA 3586/2015 IN OPMV 1108/2010 A7-TRUE COPY OF THE PETITION DATED 31.8.2015 IN IA 5007/2015 IN OPMV 1108/2010
A8-TRUE COPY OF THE DISMISSAL ORDER DATED 23.9.2015 IN IA