IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 MACA.No. 165 of 2003(P) & CROSS OBJECTION NO.70/2004 --------------------------------------------------------------------------------------- OPMV.631/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/RESPONDENT NO.3: ------------------------------------------------- *K.K.TOMY JOSEPH, AGED 40 YEARS, S/O.JOSEPH, KALLANIKKAL HOUSE P.O.PAYYANIDAM, MANNARKKAD, PALAKKAD DISTRICT.( D I E D) - ADDL.APPELLANTS 2 TO 5 IMPLEADED: BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE, BY ADV.SRI.MILLU DANDAPANI. *ADDL.A2 TO A5 IMPLEADED: A2. JAYA TOMY, AGED 42 YEARS, W/O.LATE K.K,TOMY JOSEPH, KALLANIKKAL HOUSE, (PO) PAYYANEDAM, MANNARGHAT, PALAKKAD. A3. SACHIN TOM, AGED 22 YEARS, S/O.LATE K.K.TOMY JOSEPH, KALLANIKKAL HOUSE, (PO) PAYYANEDAM, MANNARGHAT, PALAKKAD. A4. THEJUS TOM, AGED 19 YEARS, S/O.LATE K.K.TOMY JOSEPH, KALLANIKKAL HOUSE, (PO) PAYYANEDAM, MANNARGHAT, PALAKKAD. A5. SANDRA TOMY, AGED 16 YEARS, D/O.LATE K.K,TOMY JOSEPH, KALLANIKKAL HOUSE, (PO)PAYYANEDAM, MANNARGHAT, PALAKKAD. (MINOR, REPRESENTED BY 1ST PETITIONER, MOTHER SMT. JAYA TOMY) (*ADDL.APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DTD. 8/1/09 IN I.A.NO.3491/2008) Kss ..2/- ...2.... MACA NO.165/2003 RESPONDENT(S): PETITIONER & RESPONDENTS 1, 2 4 & SUPPL.RESPONDENT NO.5: ------------------------------------------------------------------------------------------------------------------------------- 1. T.AYISHA, W/O.ABDUL RAZACH, THOTTASSERY HOUSE, NARUKODE, P.O.CHETHALUR, THACHANATTUKARA, PALAKKAD DISTRICT. 2. ABDUL RAZACH, S/O.MOHAMMED, THOTTASSERY HOUSE, NARUKODE, P.O.CHETHALUR, THACHANATTUKARA, PALAKKAD DISTRICT (FATHER OF THE DECEASED BOY). 3. SUNNY JOSEPH, S/O.VARKEY JOSEPH, KALLANIKKAL HOUSE, P.O.PAYYANIDAM, MANARKKAD, PALAKKAD DISTRICT. (DRIVER OF KRP 3190 CAR). 4. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, P.O.MANNARKKAD, PALAKKAD DISTRICT. (INSURER OF KRP 3190 CAR) (POLICY NO.101205/31/01/11/02046/95-96) 5. ABDUL AZEEZ, PALLIKURUP, PALAPUTTA HOUSE, PALAKKAD DISTRICT. R1 & R2 BY ADV. SRI.P.SAMSUDIN R4 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL AND CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.601/2003 IN MACA NO.165/2003 DISMISSED 19/05/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 165 OF 2003 & CROSS OBJECTION 70 OF 2004 = = = = = = = = = = = = = = = Dated this the 19th day of May, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ottapalam in O.P.(MV)631/97. The Tribunal awarded a compensation of Rs.94,500/- and exonerated the insurance company from the liability and made respondents 2 and 3 jointly and severally liable for the claim. It is against the said finding R3 has come up in appeal. R5 has chosen to remain exparte before the Tribunal and continuous to remain unserved even now and therefore I dispense with the notice for him as the matter requires reconsideration by the Tribunal from where notice can be taken to him to decide the matter. The claimant has also come up with a cross objection challenging the adequacy of the compensation awarded by the Tribunal. 2. Heard the counsel for both the sides. It is the case of the appellant that he had transferred the vehicle in M.A.C.A. 165 OF 2003 -:2:- favour of the 5th respondent in the claim petition much prior to the accident and therefore on the date of accident he was not the owner of the vehicle. Learned Tribunal just made a passing observation that a registered owner is always liable and therefore did not consider the question on the ownership of the vehicle at all. I am afraid that the said approach is erroneous. Under the provisions of the Sale of Goods Act a movable property can be sold by handing over possession on receipt of consideration. When consideration is received and the object is given possession of it amounts to divestiture of title and therefore the ownership will get changed. Again a reference to S.2(30) of the M.V.Act which defines an owner not only takes in a registered owner but also an owner who is in possession of the vehicle. This Court had consistently taken the view that in order to decide the question of ownership the paramount consideration is not the change of registration for the reason the change of registration is only a subsequent act after sale. Therefore if the appellant is able to establish the fact that he had sold the vehicle for valid M.A.C.A. 165 OF 2003 -:3:- consideration and parted with the possession of the vehicle then the 5th respondent will be the owner of the vehicle and as the third respondent was not the owner on the date of the accident he shall not be liable to pay any compensation. But though respondents 3 and 5 had been served they did not produce any evidence at all to prove that fact. So I am inclined to grant an opportunity to the 3rd respondent namely the appellant to adduce evidence in support of the contention of the same. Since the matter is going back I also direct the learned Tribunal to consider the question of adequacy of compensation. Therefore the appeal and cross objections are disposed of as follows. 3. The award under challenge is set aside and the matter is remitted back to the Tribunal with a direction to permit all concerned to produce documentary as well as oral evidence in support of their contentions regarding the sale of the vehicle and thereafter let the matter be decided in accordance with law. The Tribunal is also bound to consider the adequacy of compensation. In order to have a fair trial M.A.C.A. 165 OF 2003 -:4:- the appellant herein is directed to take out notice to the 5th respondent in the claim petition for the appearance so that the matter can be disposed of in the presence of all. Parties are directed to appear before the Tribunal on 1.7.2010 and endeavour shall be made to dispose of the matter within a period of three months from the date of appearance of the parties. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge. M.A.C.A. 165 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = M.A.C.A. No. 165 OF 2003 = = = = = = = = = = = J U D G M E N T 19th May, 2010.