IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 WA.No. 113 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.2135/2009 Dated 27/07/2010 .................... APPELLANT(S): PETITIONER ------------------------ SHRIRAM TRANSPORT FINANCE COMPANY LTD., 40/786, CHITTOOR ROAD, ERNAKULAM, REPRESENTED BY ITS DIVISIONAL MANAGER SIBI SEBASTIAN. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS -------------------------- 1. THE REGIONAL TRANSPORT OFFICER, ALAPPUZHA. 2. THE DEPUTY TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM. 3. SURESH, SURESH NIVAS, NORTH ARIYAD.P.O., ALAPPUZHA. R1 & R2 BY G.P. SRI. K.C. SHANTHOSH KUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2011, ALONG WITH WA 114 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR, & BHABANI PRASAD RAY, JJ. -------------------------------------------- W.A. Nos. 113 & 114 of 2011 -------------------------------------------- Dated this the 2nd day of February, 2011 JUDGMENT Ramachandran Nair, J. Connected Writ Appeals are filed by a Financing company challenging the judgment of the learned single Judge whereby motor vehicle tax in respect of vehicle financed by the appellant was ordered to be recovered from them. We have heard counsel appearing for the appellant, Government Pleader for the State and motor vehicle authorities and counsel appearing for the registered owner of the vehicle. 2. Admittedly the appellant had financed the purchase of vehicle by the third respondent in W.A.No. 113 of 2011. Arrears of motor vehicle tax stood paid upto 31.12.2004 in respect of stage carriage bearing registration No. KL 13/A 5319. The case of the third respondent is that he filed Form G after garaging the vehicle for the first quarter of 2005. However, before the end of the quarter the appellant demanded surrender of the vehicle to them on account of 2 default in payment of instalments of the loan availed by the third respondent. Third respondent took a towing permit from the motor vehicle department on 11.3.2005 and shifted the vehicle with this permit on 14.3.2005 to the custody of the appellant. This much is admitted by the appellant. The case of the third respondent is that the vehicle was never released by the appellant to the third respondent and all through he has been furnishing Form G periodically even during the period the vehicle was with the financier. However, the case of the motor vehicle department is that based on several Form Gs furnished by the third respondent physical verification was made in the place of garage shown by the third respondent in the Form G furnished that is the godown of the appellant on 25.3.2006. However, the motor vehicle inspector reported that the vehicle was not garaged as claimed by the third respondent in Form G furnished. The case of the appellant is that vehicle was released on 20.6.2005 and acceptance of delivery was also made by the third respondent by issuing Ext.P1 delivery note. Third respondent denies having taken over delivery of the vehicle from the appellant. 3. During hearing of these Writ Appeals, we asked the appellant- 3 company to produce statement of accounts to mainly verify whether on the date of delivery of the vehicle, as claimed by the appellant, the third respondent had made any payment. It is seen from the statement of loan account furnished by the company that the third respondent has remited Rs. 1,15,000/- which is substantial portion of the loan amount and he has taken delivery of the vehicle after discharging the outstanding liability substantially. Counsel for the third respondent, however, denied before us having made payment, and having taken over possession of the vehicle. We are of the view that denial by the third respondent is factually incorrect and the statement in the Form G furnished by him that the vehicle was with the financier is absolutely a bogus statement. We have to necessarily draw this conclusion because the credit made in the loan account of the third respondent itself shows that he has cleared substantial amount of loan and as a matter of course when substantial payment is made, vehicle is released to the owner, and without release of the vehicle third respondent cannot be expected to make payment of such huge amount. Further primary liability for motor vehicle tax is on the registered owner, who admittedly the third respondent is. Tax amount could be recovered from the person having 4 control and possession of the motor vehicle only if vehicle possession is proved. In this case, though the vehicle was surrendered to the financier, the appellant herein, the third respondent discharged substantial portion of the loan amount on 20.6.2005 and he has taken over control and possession of the vehicle. Even though this fact is denied by the third respondent, and he has filed Form G declarations even for subsequent periods, we do not think the claim made by the third respondent that the vehicle continued to be with the appellant can be believed. Therefore we feel arrears of motor vehicle tax has to be primarily recovered from the registered owner, the third respondent, in terms of Section 3 of the Motor Vehicle Taxation Act. We therefore allow the Writ Appeals by vacating the judgment of the learned single Judge with direction to RTO to proceed for recovery against third respondent in WA No. 113 of 2011. (C.N.RAMACHANDRAN NAIR) Judge. (BHABANI PRASAD RAY) Judge. kk 5