IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 MACA.No. 1208 of 2006() ----------------------- OPMV.1302/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/1ST RESPONDENT --------------------------------------- VIJAYAN, S/O. VELAYUDHAN, AGED 46 YEARS, MURIYAPURACKAL HOUSE, THALIKULAM, THRISSUR DISTRICT, NOW RESIDING AT MURIYAPURACKAL HOUSE, NATTIKA P.O., THRISSUR DISTRICT. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT(S): PETITIONER & RESPONDENTS 2 & 3 ---------------------------------------------- 1. PRABHAKARAN, S/O. SREEDHARAN, KADAMPUZHA HOUSE, P.O.METHALA, ANCHAPPALAM, KODUNGALLUR. 2. SHAJI, S/O. AYYANKUNJI, KALATHIPARAMBIL HOUSE, PUTHENPALLY BEACH, P.O.AZHIKODE. 3. NEW INDIA ASSURANCE CO. LTD., SSN SHOPPING COMPLEX, THRIPRAYAR P.O., NATTIKA, THRISSUR. *4. JOINT RTO, GURUVAYUR. * ADDITIONAL R4 SUO MOTU IMPLEADED VIDE ORDER DATED 24.11.2009. ADV. SRI.A.C.DEVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- M.A.C.A. No. 1208 of 2006 --------------------------------------------- Dated, this the 23rd day of December, 2009 J U D G M E N T P.R.Ramachandra Menon, J. A pedestrian, while proceeding along the road, was stated as knocked down by a motor cycle bearing No. KER 8480 on 29.04.2000; which was sought to be compensated by filing a claim petition before the Tribunal against the owner, rider and insurer. The owner of the vehicle disputed the negligence and contended that the amounts claimed were exorbitant; however conceding that the vehicle was insured by the 3rd respondent. The insurer contended inter alia, that the rider was not having valid driving licence and there was clear violation of statutory/policy condition. 2. On the basis of the evidence adduced, consisting of the oral testimony of PW1/claimant, supported by Exts.A1 to A8 and Ext.B1 Policy, the Tribunal held that the accident was because of the negligence on the part of the rider of the motor cycle; that the claimant was entitled to get a total sum of Rs.25,262/- with interest at the rate of 6% per annum from the date of the petition and further that the insurer, after satisfying the said liability to the claimant/3rd party would be entitled MACA No.1208 of 2006 2 to be get it recovered from the owner and rider of the vehicle, in view of the proven violation of statutory/policy condition. 3. It appears that the insurer, after satisfying the liability to the 3rd party, proceeded with steps to have it recovered from the owner, resorting to coercive steps under the Kerala Revenue Recovery Act. It was at this point of time, that the owner of the vehicle chose to approach this Court by filing the above appeal, contending that he was never the owner of the vehicle in question at any point of time and that Ext.A1 policy was actually in respect of vehicle bearing No.'KER 8440' which was contrary to the number of the vehicle shown in the claim petition (KER 8480). A copy of the registration certificate dated 11.05.2006 issued by the additional registering authority, Thrissur in respect of the vehicle bearing No.'KER 8480' was also produced as 'Annexure A' along with I.A. 1675/2006 (showing the name of the registered owner as one Hamsa Thoppil, S/o.Kunju Mohammed, Thoppil House, Valappad, Thrissur) in support of the said contention. 4. It is revealed from the proceedings that the above appeal was admitted by this Court, also granting interim stay as prayed for. Subsequently, observing the fact that the accident was only because of the negligence on the part of the second respondent/rider who had refused to appear before this Court even after ordering personal MACA No.1208 of 2006 3 appearance on 09.01.2009, this Court passed an order on 29.05.2009 for recovering the due amount from the second respondent/rider and to report the matter to the Court by the revenue authorities concerned. But since the outcome of the said order was not known, this Court directed the concerned MACT to conform whether the recovery was made from the second respondent. In response to the said order, the MACT, Irinjalakuda, as per letter dated 26.10.2009 addressed to the Registrar (Subordinate Judiciary) of this Court has confirmed that recovery has been made from the second respondent/rider and a copy of the relevant proceeding dated 20.02.2008 of the Tahsildar, Kodungallur was also forwarded to this Court. As such, the appeal preferred by the owner of the vehicle, when confronted with the Revenue Recovery steps, has actually become infructuous. 5. However, considering the fact that the appellant had made a specific averment in the memorandum of appeal as well as in the affidavit in support of the different I.A.s, that he was never owner of the motor cycle at any point of time, this Court directed the learned Government Pleader to obtain the particulars of the vehicle bearing No.'KER 8480' and also 'KER 8440'; pursuant to which, copies of the registration particulars have been procured and placed for consideration of this Court. It is revealed that the vehicle bearing No.'KER 8440' is a 'Yesdi 250 CC' motor MACA No.1208 of 2006 4 cycle standing in the name of one E.C.Thomas. It is brought out from the records forwarded from the office of the ARA, Thrissur, in respect of the vehicle 'KER 8480' (Kelvinator 50 CC Avanti Moped) that, it was originally registered in the name of one Hamsa Thoppil, Thrissur, which was later transferred to the name of N.S.Pushpasayankan, S/o. Sanku, Nelliparambil House, P.O.Vadakkumury, Thrissur, with effect from 23.09.1993 and was later transferred to one Salamudeen, S/o. Kader, Panikkaveettil House, Padyam, with effect from 07.12.1994. This very much tallies with the document produced as 'Annexure A' by the appellant along with I.A. 1675/2006 in the appeal. But the vehicle was subsequently stated as transferred to the name of the appellant with effect from 24.01.1995 as reported by the Joint RTO, Guruvayur which endorsement is not there in 'Annexure A' produced by the appellant. This clearly reveals that the averments made by the appellant, that he was never the owner of the vehicle in question at any point of time, was not at all correct or proper which required further investigation to ascertain the truth and to find whether he has filed a false affidavit before this Court. 6. In the above circumstance, this Court, 'suo motu' impleaded the Joint RTO, Guruvayoor as the additional 4th respondent and directed him to produce the 'back records' pertaining to the transfer of the vehicle in the name of the appellant or to file an affidavit, if they are not available. MACA No.1208 of 2006 5 Pursuant to the said direction, the Joint RTO Guruvayur (additional 4th respondent) has filed an affidavit confirming the transfer of the vehicle in the name of the appellant with effect from 24.01.1995 and that the transfer was effected on 04.02.1995. It is also stated that connected 'back file' of the transfer of ownership was not available in the office; the same having been destroyed or otherwise dealt with, being of more than 14 years old; particularly, when the Kerala Destruction of Records Act, 1961 and the Rules thereunder stipulated that there was no necessity to keep the file in the office for more than 10 years. This being the position, this Court is not in a position to ascertain whether the transfer was made pursuant to the application preferred by the appellant himself. 7. We also take note of the fact that the learned counsel appearing for the appellant, pursuant to the views expressed by this Court in the course of the proceedings had asserted that the appellant was very much ready to face any enquiry to be ordered or pursued by this Court, to ascertain the true state of affairs. Learned counsel had also brought it to the notice of this Court that the appellant was very much present before this Court on two or three occasions, though his personal presence was not required by the Court. In any view of the matter, since the relevant records are stated as not available, this Court does not propose to proceed with the matter any further, as the same cannot be taken to any MACA No.1208 of 2006 6 logical conclusion. This Court also takes notice of the fact that the second respondent/rider, who refused to appear before this Court despite issuing notice by speed post for personal appearance, has satisfied the due amount pursuant to the recovery proceedings ordered against him by this Court as per interim order dated 29.05.2009. 8. Yet another aspect to be noted is that the number of the offending motor cycle (Kelvinator 50 cc Avanti Moped) was correctly shown by the insurer as 'KER 8480' itself in the earlier Policy issued in 1993-94, in favour of the then insured N.S.Pushpasayankan. But when the policy was issued by the very same insurer in respect of the year 1994-95, in the name of the very same insured, the number of the vehicle was wrongly typed as 'KER 8440'. The above mistake was carried forward, even when the transfer of the insurance policy was endorsed in favour of Vijayan - the appellant as well (in respect of the period from 02.02.1995 to 25.10.1995) showing the number of the vehicle as 'KER 8440' instead of 'KER 8480'. The number was wrongly shown as 'KER 8440' in the Policy issued for the year 1996-97 and also for 1999-00 as borne out by the proceedings dated 22.10.2009 of the concerned branch of the 3rd respondent/insurer; copies of which have been placed for consideration of this Court, by the learned counsel for the insurer which mistake has contributed much to the present litigation. MACA No.1208 of 2006 7 In the above facts and circumstances, this Court, giving the benefit of doubt to the appellant, holds that no further proceedings need be pursued in the matter and accordingly the appeal is closed. We however direct the Commissioner of Transport, Government of Kerala, Thiruvananthapuram to explore the feasibility of intimating the transferer as well as the transferee of the factum of transfer when made so that bogus transfer if any can be detected. The Registry shall forward a copy of this judgment to the Commissioner of Transport, Government of Kerala, Thiruvananthapuram for appropriate action. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc