IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 MFA (WCC).No. 7 of 2010() ------------------- WCC.181/1994 of W.C.C., PALAKKAD .................... APPELLANT(S): 1ST OPPOSITE PARTY: ------------------------------------------------------------- P.KUNJIMOHAMMED, S/O.ABDURAHIMAN, POOZHIKKUTHU HOUSE, KARUVAMBRAM, MANJERI. BY ADV.MR.P.SAMSUDIN RESPONDENT(S): APPLICANTS:OPPOSITE PARTIES 2 AND 4: -------------------------------------------------------------------------------------------- 1. MOOLATH ALAVI, S/O.KUTTY HASSAN, THIRUVALI AMSOM, S/O.PATHIRIYAL DESOM, P.O.PATHIRIYAL, ERNAD TALUK. 2. KOTTAKKADAN PATHUMMA, W/O.MOOLATH ALAVI, THIRUVALI AMSOM, S/O.PATHRIYAL DESOM, P.O.PATHIRIYAL, ERNAD TALUK. 3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, NILAMBUR ROAD, MANJERI. 4. SRI.T.AHAMMED KOYA, S/O.MOYIN, THATTAYIL HOUSE, P.O.ANAKKAYAM, MALAPPURAM. R3 BY ADV. MR. V.P.K.PANICKER R4 BYADV. MR.P.VENUGOPAL (1086/92) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.78/2010 IN MFA (WCC) NO.7/2010 CLOSED 08/03/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... M.F.A.No.7 OF 2010 ............................................. Dated this the 8th day of March, 2010. J U D G M E N T This appeal is preferred against the award of the Workmen's Compensation Commissioner, Palakkad in W.C.C.No.181/1994. A cleaner of a bus died in an accident and his parents moved an application as dependants for compensation under the Workmen's Compensation Act. Now it is seen that the father is dead and mother is surviving. So, naturally the mother can be considered as the sole legal heir and dependant of the son. The Workmen's Compensation Commissioner found that the appellant herein is the registered owner of the vehicle and therefore conferred the liability on him. The alleged transferee owner is R3 in the original proceedings and on his death, his son R4 therein is impleaded. So, virtually the questions for consideration are who is the owner of the vehicle on the date of accident and whether it is R1 or R4 representing R3. Another interesting question raised is whether there is any employer employee relationship between the deceased cleaner and R1 in the : 2 : M.F.A.No.7 OF 2010 case. 2. The learned counsel for the appellant would argue before me that an agreement has been entered into on 28.9.1991 between the first respondent and the third respondent in the petition before the Court below. The Court below found that since first respondent is the registered owner, he is liable to pay the compensation. Now a perusal of Ext.D3 agreement would reveal that the vehicle was agreed to be sold for a consideration of Rs.3,50,000/= by the first respondent in the case to the third respondent and there was a payment of advance of Rs. two lakhs and the balance consideration has to be paid by the end of December. It is also seen that there is a recital in the document that the third respondent in the petition would be liable for all the acts or expenses that take place after the execution of the agreement. I am informed that the third respondent is now represented by his legal representative, the 4th respondent. The Court below had not considered the agreement-Ext.D3. So far as the Sale of Goods Act is concerned, it has to be stated that when a vehicle is transferred by receipt of : 3 : M.F.A.No.7 OF 2010 consideration and handing over of its possession that amounts to divestiture of title and that the change of registration is only a subsequent event that takes place after the sale. So, it is not the transfer of registration that proves the sale but the real sale. 3. The learned counsel for the respondents had brought to my notice a decision of the Apex Court reported in Jose v. Chacko (2001 (3) KLT 633). In that case the Hon'ble Apex Court held that since the vehicle stands in the name of the registered owner, he cannot escape from the liability. But it was a case where the transferee was not made as a party either in the lower Court or in the High Court, but was impleaded as a party before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that it cannot conduct an enquiry at that stage and therefore held that the registered owner has to pay the amount and, if law permits, direct the registered owner to proceed against the owner in possession in appropriate proceedings. 4. But so far as this case is concerned, the transferor and the transferee are in the party array. If the transferor : 4 : M.F.A.No.7 OF 2010 is able to prove the sale in favour of the transferee, then the transferee becomes the absolute owner of the property. In such circumstances, one cannot fasten the liability on the original owner. But I am informed that there is a dispute regarding the very execution of the agreement. So, it is a matter that requires evidence. The terms and conditions of the agreement is at lest binding on the parties. If the agreement is proved, then the terms and conditions also will stand proved. By virtue of the terms and conditions, the transferee has undertaken to satisfy all the liabilities that arise after the date of agreement. So, these are all matters which requires consideration. Similarly whether there is any employer employee relationship also is a matter that has to be considered for the reason that the claim is filed under the provisions of the Workmen's Compensation Act. 5. Therefore the award under challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner with a direction to consider the matter afresh and decide the ownership and then dispose of the matter in accordance with law after affording equal : 5 : M.F.A.No.7 OF 2010 opportunities. The Workmen's Compensation Commissioner shall issue notice to all the parties and then proceed with the matter in accordance with law. The amount deposited shall remain in deposit till a final decision is taken in the matter. The junction of the insurance company is not necessary as the policy does not cover the risk of the cleaner. Disposed of accordingly M.N. KRISHNAN, JUDGE cl : 6 : M.F.A.No.7 OF 2010