IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1929 MACA.No. 1533 of 2007() ----------------------- OPMV.160/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/IST RESPONDENT -------------------------------------- T.HANEEFA, S/O.MOHAMMEDKUTTY, THENAMKULATHIL HOUSE, NADUVATTOM P.O. KUTTIPPURAM, TIRUR TALUK. REPRESENTED BY POWER OF ATTORNEY HOLDER, MOHAMMED BASHEER T., AGED 24 YEARS, S/O.MOHAMMED KUTTY, RESIDING AT DO. DO. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): PETITIONERS AND RESPONDENTS 2 AND 3 -------------------------------------------------- 1. K.P.SUKUMARAN, KEEZHPADATH HOUSE, P.O.AYNKALAM, THAVANOOR, PONNANI TALUK. 2. K.KAUSALYA, W/O.SUKUMARAN, RESIDING AT DO. DO. 3. VADAKKE VALAPPIL HAMSA, S/O.ALI, CHAMRAVATTAM P.O., TIRUR TALUK. 4. NATIONAL INSURANCE CO.LTD., MAVOOR ROAD, P.O.CALICUT, (INSURER). BY ADV. SRI.V.GOPIKRISHNAN FOR R1,R2. SRI.LAL GEORGE FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON 16/10/2009 DELIVERED THE FOLLOWING: ORDER ON I.A. 1801 OF 2007 ON M.A.C.A. NO: 1533 OF 2007 DISMISSED. SD/- (M.L.JOSEPH FRANCIS) JUDGE 16.10.2009 // TRUE COPY // PA TO JUDGE K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 1533 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th Day of October, 2009. JUDGMENT Joseph Francis J. The appellant herein was the first respondent in O.P. (M.V.) No: 160 of 2001 on the file of the Motor Accidents Claims Tribunal, Tirur and the respondents 3 and 4 are the respondents 2 and 3 respectively in the O.P. The O.P. was filed by the respondents 1 and 2 herein claiming a sum of Rs.1,75,000/- as compensation for the death of their minor daughter Nikhila. 2. The facts of the case are briefly as follows: On 17.1.1999, the 2nd respondent along with her daughter Nikhila was walking towards south through eastern side of Tirur B.P. Angadi road. When they reached at police lane, at about 11 a.m., a jeep bearing no. KL 10B 8075 came from north side and M.A.C.A . NO: 1533 OF 2007 :2: knocked down Nikhila causing grievous injury to her. The injured, as a result of the accident, died at Government Hospital, Tirur. The accident occurred due to the rash and negligent driving of the 3rd respondent, who was driving the offending vehicle, at the time of the accident. 3. The appellant is the registered owner and 4th respondent is the Insurance Company. 4. The appellant contends that, as a matter of fact, the appellant had sold the vehicle to one Yahutty on 28.8.1998 itself, and, since the appellant was out of India, there was no chance for him to contest the claim. So, the award was passed by the Tribunal on 29.3.2004. The appellant and the 3rd respondent remained exparte. The learned Tribunal allowed the petition and allowed the petitioners to recover a sum of Rs.1,59,000/- as compensation with 6% interest from 24.3.2001, till the date of realisation and cost of Rs.1,500/- from the respondents 1 to 3. The Insurance Company was directed to pay the amount awarded. It was further held that the M.A.C.A . NO: 1533 OF 2007 :3: Insurance Company is entitled for reimbursement from respondents 1 and 2 in the O.P. (M.V). 5. The appellant filed an application for setting aside the ex parte. The learned Tribunal set aside the ex parte only for the purpose of deciding the dispute between the appellant and the Insurance company. After the ex parte was set aside, the appellant filed a written statement contending that he had sold the jeep to Yahutty and there was no violation of the condition of the policy. The learned Tribunal considered only one point as to whether the Insurance Company was entitled to recover the amount of compensation paid by it from the appellant. Since the mutation was not effected in the registry and the name of the appellant was still in the Registration Certificate, the learned Tribunal held that the Insurance Company is entitled to recover the amount of compensation from the appellant also. 6. Against that award the first respondent filed this appeal. 7. We heard the learned counsel for the appellant and the M.A.C.A . NO: 1533 OF 2007 :4: learned counsel for contesting respondents. 8. Learned counsel for the appellant submitted that the appellant sold the offending jeep as per Ext.B3 agreement and it was not proper to hold that the appellant was the owner of the vehicle at the time of the accident. 9. There is no dispute that the accident occurred on 17.1.1999. According to the appellant, he had sold the jeep to one Yahootty on 28.8.98 as per Ext.B3 agreement. As per that agreement, the appellant sold the jeep No:KL 10B 8075 to Yahootty, for a consideration of Rs.1,92,500/-. Admittedly, the registration certificate of the jeep was not transferred in the name of Yahootty after the jeep was transferred to him as per Ext.B3 agreement. There is also no dispute that the appellant continued to be the registered owner of the jeep even after Ext.B3 agreement. It is an admitted fact that on the date of accident the jeep was insured in the name of the appellant and not in the name of Yahootty. There is no evidence to show that any intimation was given to the Insurance Company regarding the transfer of the vehicle. M.A.C.A . NO: 1533 OF 2007 :5: 10. Learned counsel for the appellant submitted that the sale of the vehicle is governed by the provisions of Sale of Goods Act and the transfer of vehicle is complete upon payment of consideration and delivery of the vehicle irrespective of the fact that it has been registered or not. 11. The definition of the term owner under Section 2 (19) of the Motor Vehicles Act, 1939 (in short M.V. Act, 1939) reads as follows: “Owner” means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle, which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement”. 12. The definition of owner under section 2 (30) of the M.V. Act, 1988 reads as follows: “Owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle, which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement”. M.A.C.A . NO: 1533 OF 2007 :6: 13. Under the M.V. Act, 1939, registration of the vehicle was not the principal consideration for treating a person as the owner of the vehicle and hence, in accordance with the principles embodied in sale of goods, ownership of the vehicle could have changed from one hand to another with the purchase of the vehicle and, if a person, on having purchased a vehicle, had acquired possession and control thereof, he or she could have been regarded as the owner of the vehicle. Under the definition of owner, as given in section 2 (30) of the M.V.A Act, 1988, if a registered owner parts with the possession of the vehicle in favour of the person, who has purchased the vehicle, the registered owner still remains the owner of the vehicle even if he ceases to have control and possession to the vehicle. 14. In the decision reported in P.V. Said Mohammed V. Rema and Others (1995(2) KLJ 259), it was held that it is clear that under the Old Act, ownership of a vehicle rested mainly on the strength of possession of the vehicle, but the change in the definition is not sufficient to change the tortious liability of the actual owner of the M.A.C.A . NO: 1533 OF 2007 :7: vehicle. This is because the liability to pay the compensation to victims of motor accidents is not creation of the Motor Vehicles Act. 15. In the decision reported in Najeeb V. Babu (1994(2) K.L.T. S.No.15, Case No:20, it was held that till the transfer of ownership is entered in the certificate of registration, one has to take it that the person in whose favour such certificate of registration is issued is the owner, unless otherwise established by legal evidence. In the present case, the alleged purchaser Yahootty is not a party to the proceedings and therefore interse, liability between the appellant and Yahootty cannot be fixed in this proceedings. 16. The decision reported in 2005 ACJ 275 (Kerala) (Ashraf V. Fathima), was a case in which the registered owner of a motor cycle had transferred the vehicle to another person and thereafter, the vehicle changed several hands. But, the registration certificate of the vehicle was not transferred in the name of the transferee of the vehicle. The policy of insurance also continued to be in the name of the registered owner of the vehicle. When the transferee of the motor cycle was M.A.C.A . NO: 1533 OF 2007 :8: riding that vehicle, an accident occurred and a person died. The motor cyclist had no licence to drive the vehicle. It was held by this Court that the Insurance company is liable to pay the compensation to the claimants but it can recover the amount from the insured and not from the defacto owner. The court held as follows: “Therefore, despite transfer, the Insurance company is liable to pay compensation to the third party and that benefit can be made available to the third parties and not to the registered owner of the vehicle. Transferor's liability to third parties and the public also continues till the obligation is transferred. Section 50 of the Motor Vehicles Act casts mandatory obligation on the owner to change the registration on transfer of vehicle. Registered owner holds out to the public that he is the owner of the vehicle. Third parties may be unaware of transfer unless it is entered in the registration book. Otherwise plea of bogus transfer will be made to escape from liability to third parties. Here, alleged transfer is not proved before the Tribunal. Since the person driving the vehicle was not having driving license, as held by the Apex Court the Insurance company is liable M.A.C.A . NO: 1533 OF 2007 :9: to pay the amount and then recover it from the insured. Here the insured is still the registered owner as admittedly, appellant, registered owner did not inform the matter of transfer to the insurance company and insurance is not transferred. The insurance company cannot recover it from the defacto owner because there is no contractual agreement between the defacto owner and the insurance company. The insurance company can recover it only from the insured.” 17. In this case, the appellant continues to be registered owner of the offending vehicle. and as such he is liable to pay the compensation, as he is the registered owner of the offending vehicle. Also Shri. Yahutty is not a party either in the Tribunal or before this Court. 18. Ext.A1 is th copy of F.I. R. in crime No.23 of 1999 of Tirur Police station, which was registered against the second respondent, the jeep driver. Ext.A2 is the copy of scene mahazar showing that the accident was on the eastern margin of the road. Ext.A3 is the copy of A.M.V.I. report which would show that there was no mechanical defect M.A.C.A . NO: 1533 OF 2007 :10: for the vehicle and there was no damage. Ext.B2 is the copy of charge sheet showing that the second respondent was charge sheeted under Section 66 read with section 192 of the Motor Vehicles Act. Ext.B2 further shows that the taxi jeep was used for carrying banana. Ext.B1 is the copy of the Insurance policy produced by the third respondent. 19. Since the vehicle was used as goods vehicle for carrying banana, in violation of policy condition, the Insurance Company is entitled for reimbursement. 20. In this case, a five year old girl died in the accident. The petitioners are the parents of the girl. The multiplier applicable in the case of the child below 15 years is 15 and the annual income of the girl, who is not a earning member is taken as Rs.15,000/-. After deducting 1/3, the compensation payable for loss of dependency is arrived at Rs.1,50,000/-. Rs.9,500/- is awarded by the Claims Tribunal as compensation for pain and suffering, loss of estate, love and affection and funeral expenses etc. Thus in total the compensation is assessed as Rs.1,59,500/-. On considering the facts and circumstance of the case, M.A.C.A . NO: 1533 OF 2007 :11: we are of the view that the compensation awarded is just and reasonable. Therefore, we find no reason to interfere with the award passed by the Tribunal. Accordingly, the appeal is dismissed. There is no order as to costs. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/