IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 MACA.No. 2335 of 2007 - F ----------------------- OPMV.1723/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/RESPONDENT NO.1: --------------------------------------- SHAJI, AGED 35, S/O.ANTONY, KOCHUTHOPPIL VEEDU, THANNI, MAYYANAD P.O., KOLLAM. BY ADV. MR.S.GIRISH MR.J.SANTHOSH RESPONDENTS/CLAIMANT AND 2ND AND 3RD RESPONDENT: ------------------------------------------------------------------ 1. ABDUL KALAM, KOORIPOIKA, PUTHEN VEEDU, VELICHIKKALA, KOLLAM. 2. UNNI, PLAVILA VEEDU, AYATHIL, KOLLAM. 3. DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., HOSPITAL ROAD, KOLLAM. ADV. SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.No. 2335 of 2007- F ORDER ON I.A.NO.3335/2008 IN M.A.C.A.NO.2335/2007 DISMISSED. 16.3.2009 SD/-M.SASIDHARAN NAMBIAR, JUDGE. // TRUE COPY // P.A TO JUDGE. M.SASIDHARAN NAMBIAR, J. --------------------------- M.A.C.A.No.2335 of 2007- F ----------------------------- Dated this the 16th day of March, 2009 J U D G M E N T 1st respondent in O.P.(MV).No.1723/1999 on the file of the Motor Accidents Claims Tribunal, Kollam is the appellant. 1st respondent is the claimant. Respondents 2 and 3 are respondents 2 and 3 before the Motor Accidents Claims Tribunal. 1st respondent filed a petition claiming a compensation of Rs.50,000/- alleging that on 4.9.1999 at about 2.00 pm while he was standing on the northern road margin of Kollam- Thiruvananthapuram National High Way near Pallimukku, a goods auto bearing registration No.KL2/D-2182 driven by the 2nd respondent came in a rash and negligent manner and hit on his body and he was thrown away and sustained serious injuries and appellant and 2nd respondent are liable to pay the compensation being the owner and driver and 3rd respondent is liable as the insurer. Appellant filed a written statement contending that though he was the owner of the vehicle on 5.6.1996, he sold the vehicle to one Sebastian, S/o. John of Eravipuram, after receiving the entire consideration by executing a sale deed dated 5.6.1996 M.A.C.A.No.2335 of 2007- F 2 and thereafter the pick up van was under the absolute possession and enjoyment of Sebastian and second respondent was driving the vehicle under him and therefore, appellant is not liable. It was also contended that the amount claimed is excessive and in any case as the vehicle was insured with third respondent, third respondent is liable to pay the compensation. Second respondent remained absent. Third respondent resisted the claim contending that the insurer did not inform the accident and did not make available the vehicular documents and in any case second respondent was not having a valid and effective driving licence at the material time and therefore for violated policy conditions, third respondent is not liable to indemnify the insurer. 2. Motor Accidents Claims Tribunal on the evidence of Exts.A1 to A7 found that 1st respondent sustained injuries in the motor accident and the accident was caused due to the negligent driving of the vehicle by the second respondent. A compensation of Rs.16,900/- was fixed inclusive of Rs.5,000/- for pain and suffering and Rs.6,000/- for loss of amenities and Rs.3,000/- for loss of earnings for two months. It was found that the second respondent was not having a valid driving licence at the time of M.A.C.A.No.2335 of 2007- F 3 the accident and therefore there was violation of the policy conditions and hence the insurer is entitled to be reimbursed by the insured for the compensation payable to first respondent. An award was passed directing the appellant to deposit the compensation and on his failure third respondent was directed to deposit and realise the same from the appellant. First respondent has filed this appeal challenging the award. 3. Learned counsel appearing for the appellant and third respondent were heard. 4. Learned counsel appearing for appellant relying on a photocopy of the registered sale deed executed on 5.6.1998 whereunder he had transferred the vehicle in favour of Sebastian, S/o. Joan argued that as the entire sale consideration was received and he transferred the vehicle on 5.6.1996, from 5.6.1996 onwards appellant was not the owner and Sebastian was the owner and therefore, appellant has no liability to pay the compensation and therefore the award is to be set aside. Learned counsel also argued that in any case the Motor Accidents Claims tribunal should have passed an award against the second respondent-driver who caused the accident by his negligent M.A.C.A.No.2335 of 2007- F 4 driving and the liability of the owner is only vicarious. Learned counsel also argued that when third respondent admitted the insurance policy, they are liable to pay the compensation, and once paid the amount cannot be realised from the appellant. 5. Learned counsel appearing for the third respondent relying on the decision of Apex Court in Jose v. Chacko (2001 (3) KLT 633) argued that appellant who is admittedly the registered owner of the vehicle is liable to pay compensation to a third party and he cannot avoid the liability on the ground that there was a transfer by execution of a sale deed and delivery of the vehicle without transfer of the Registration Certificate. Learned counsel also argued that when there is no evidence to prove that second respondent was holding a valid driving licence on the date of accident and it is proved that there was no valid driving licence to the second respondent, Tribunal rightly permitted the insurance company for realisation of the amount from the appellant and there is no reason to interfere with the award. 6. Though learned counsel appearing for appellant relying on a certified copy of a true copy produced before the Motor M.A.C.A.No.2335 of 2007- F 5 Accidents Claims Tribunal argued that from 5.6.1996 onwards he is not the owner of the vehicle involved in the accident and therefore he has no liability to pay the compensation, in view of the decision of the Apex Court in Jose's case (supra) the submission of learned counsel can only be rejected. Appellant has no case that he is not the registered owner of the vehicle involved in the accident, on the date of the accident. There is also no case that there was any change of ownership in the Registration Book before the date of the accident. The effect of the registered certificate and liability of the registered owner is settled by Apex Court in Jose's case (supra). Hence, being the registered owner, irrespective of the transfer in favour of Sebastian as claimed, the appellant is liable to reimburse the compensation paid to first respondent. 7. But there is force in the submission of the learned counsel that Motor Accidents Claims Tribunal should have passed an award as against second respondent also. The finding of the Motor Accidents Claims Tribunal is that the accident was caused due to the negligent driving of the second respondent. Liability of the appellant, as the registered owner is the vicarious liability. M.A.C.A.No.2335 of 2007- F 6 Primarily the driver is liable. Therefore, Motor Accidents Claims Tribunal should have directed respondents 1 and 2 in the O.P. (MV) to pay the compensation. As insurance policy is admitted, Motor Accidents Claims Tribunal rightly directed the third respondent to deposit the amount and permitted third respondent to realise the same from the appellant. The compensation awarded is just and proper and warrants no interference. The appeal is allowed in part. While confirming the award passed by Motor Accidents Claims Tribunal, it is made clear that the second respondent is also liable to pay the compensation. Though learned counsel appearing for appellant submitted that he has deposited 50% of the amount and therefore the balance 50% is to be paid by the second respondent. I cannot agree with the submission. Both the appellant and second respondent are liable to pay the compensation. M.SASIDHARAN NAMBIAR, JUDGE. bkn/-