Kerala High Court
Jamaludeen vs Ganga on 23 March, 2021
1
MACA.No.3325 OF 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943
MACA.No.3325 OF 2015(C)
AGAINST THE AWARD IN OPMV 1108/2010 DATED 13-01-2015 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL ,KOLLAM
APPELLANT/S:
JAMALUDEEN, AGED 58 YEARS
S/O.ALIYARUKUNJU RAFEEK MANZIL,
CHANDANATHOPPU,KOTTAMKARA, KOLLAM.
BY ADVS.
SRI.V.JAYAPRADEEP
SRI.V.JAYADHAR
RESPONDENT/S:
1 GANGA, AGED 32 YEARS, W/O.SANTHOSH KUMAR, THADATHIL
PUTHEN VEEDU,EDAVATTOM, NANTHIRICKAL, VELLIMON
P.O.KOLLAM - 691 511.
2 SANGEETHA, AGED 6 YEARS, D/O.SANTHOSH KUMAR, -DO-
(REPRESENTED BY THE IST RESPONDENT).
3 RAMANI, AGED 53 YEARS, M/O.SANTHOSH KUMAR, -DO-
4 P.K.KALA, D/O.MOHANAN, AMMODANAM, CHERUMOOD, VELLIMON
P.O,KOLLAM - 691 511
5 NOWSHAD, S/O.ABDUL AZEEZ, CHARUVILA PUTHEN
VEEDU,MAKALUVILA JUNCTION, EDAVATTOM CHERY,PERINAD
VILLAGE, KOLLAM - 691 601.
R1 to 3 BY ADV. SRI.MANOJ RAMASWAMY
BY ADV. SMT.SANJANA R.NAIR
R5 BY ADV. SRI.K.B.ARUNKUMAR
R4 BY ADV. SMT.RENY ANTO
BY ADV. SRI.K.SIJU
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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MACA.No.3325 OF 2015
C.S.DIAS, J.
======================
MACA No.3325 of 2015
======================
Dated this the 23rd day of March, 2021.
JUDGMENT
The appellant was the additional third respondent in
OP(MV) 1108/2010 on the file of the Motor Accidents Claims
Tribunal, Kollam. The respondents 1 to 3 were the
claimants and the respondents 4 and 5 were the
respondents 1 and 2 in the claim petition. The parties are,
for the sake of convenience, referred to as per their status in
the claim petition.
2. The petitioners had filed the claim petition under
Sec.166 of the Motor Vehicles Act, 1988, inter alia, averring
that on 20.4.2010 while Sri.Santhosh Kumar (deceased) -
the husband of the first petitioner and father of the
petitioners 2 and 3 - was riding a scooter bearing
registration No.KL-02/C-1215 along the Kundara-
Anchalummoodu public road, a Bajaj pick-up van (offending
vehicle) bearing registration No.KL-2/J 1994 hit the scooter
MACA.No.3325 OF 2015
of Sri.Santhosh Kumar. Even though Santhosh Kumar was
taken to the Sanker's Hospital, Kollam, he succumbed to his
injuries on the same day. The deceased was a sawmill
worker by profession and earning an amount of Rs.7,500/-
per month. The petitioners were depending on Sri.Santhosh
Kumar for their livelihood. Hence the respondents 1 to 3
were jointly and severally liable to pay the compensation
amount, which the petitioners quantified at Rs.5,00,000/-.
3. The first respondent - the original owner of the
offending vehicle - filed a written statement contending that
she was an unnecessary party to the proceedings because
she had sold the offending vehicle to the additional third
respondent on 3.6.2003. The additional third respondent
had transferred the ownership of the offending vehicle to his
name, which is reflected in page No.10 of the registration
book of the offending vehicle. The accident took place on
20.4.2010. Therefore, the first respondent may be
exonerated from the case.
4. The second respondent - the driver of the vehicle -
MACA.No.3325 OF 2015
did not contest the proceedings and was set ex parte.
5. The additional third respondent filed a written
statement contending that the accident occurred on
20.4.2010, but he had transferred the vehicle to one Sunil
Kumar on 20.12.2013. It was further pleaded that at the
time of transfer of the vehicle, the vehicle was having a
hypothecation with Aswathy Finance. Nevertheless, the
vehicle was sold to Sunil Kumar with the hypothecation.
The third respondent had no relationship or acquaintance
with the second respondent. He would produce documents
to prove that the vehicle was sold at the appropriate stage.
Hence, the claim petition be dismissed.
6. The petitioners marked Exts A1 to A5 in evidence.
The additional third respondent was examined as RW1 and
Ext B1 was marked through him. Ext X1 the case diary of
the Police was marked as a third party Exhibit.
7. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition, in part, by permitting the petitioners to
MACA.No.3325 OF 2015
realise an amount of Rs.8,68,000/- with interest @ 9% per
annum from the second respondent and additional third
respondent.
8. Aggrieved by the impugned award passed by the
Tribunal, the additional third respondent is in appeal.
9. Heard Smt.Jayapradeep V, the learned counsel
appearing for the appellant, Sri.Manoj Ramaswamy, the
learned counsel appearing for the respondents 1 to 3,
Sri.K.Siju, the learned counsel appearing for the fourth
respondent and the Sri.K.B Arun Kumar, the learned counsel
appearing for the fifth respondent.
10. The question that emanates for consideration in
this appeal is whether the impugned award passed by the
Tribunal is erroneous or not.
11. Ext A1 FIR and Ext X1 case diary of the Police
substantiates that the accident had taken place on
20.4.2010. In Ext X1, the Police have charge-sheeted the
second respondent for offences punishable under Secs 279
and 304(A) of the Indian Penal Code for having committed
MACA.No.3325 OF 2015
the accident. Ext A4 proves that the deceased had expired
on 20.4.2010 as a result of the accident. Ext A5 proves that
the petitioners are the dependents of the deceased.
12. The pivotal point contended before this Court is
that the additional third respondent is not the owner of the
offending vehicle.
13. Admittedly, the first respondent was impleaded as
the owner of the vehicle. She filed a written statement
contending that the vehicle was sold by her to the additional
third respondent on 3.6.2003 and the ownership was
transferred to the additional third respondent, as reflected
on page 10 of the registration book of the offending vehicle.
Accordingly, the additional third respondent was impleaded
as a party in the claim petition by order in IA 3226/2013
dated 24.5.2013.
14. Even though the additional third respondent filed a
written statement contending that he had sold the vehicle to
one Sunil Kumar, as per Ext B1 on 20.12.2013, undisputedly
the ownership was not transferred in the registration book
MACA.No.3325 OF 2015
of the offending vehicle. Ext B1 receipt produced by the
additional third respondent is not sufficient to prove the
alleged transfer, even though the transaction is governed by
the Sale of Goods Act. Nonetheless, in view of the mandate
under Sec.50 of the Motor Vehicles Act, 1988, the additional
third respondent was obliged to inform the registering
authority about the alleged transfer. So long as the same
was not done, the additional third respondent cannot be
permitted to contend that he had sold the vehicle much prior
to the accident and that the alleged transferee had not
effected the transfer of ownership in the registration book.
Moreover, the Tribunal after analysing the evidence of RW1,
and verifying Ext B1, came to the conclusion that there is no
sufficient address to identify the said Sunil Kumar.
15. The entire onus of proof was on the additional third
respondent to establish by cogent evidence that he sold the
vehicle to Sunil Kumar on 24.5.2013. On a closer scrutiny of
Ext B1, it is seen dated 24.5.2003. Although, the third
respondent later contended that by an inadvertent mistake
MACA.No.3325 OF 2015
the date was wrongly pleaded in the written statement, the
Tribunal refused to grant leave to amend the pleadings.
Even if the said amendment was permitted, it is
inconsequential because the additional third respondent
failed to prove the transfer, failed to furnish the details of
the alleged transferee, failed to implead the alleged
transferee as a party in the claim petition and effect transfer
of ownership of the offending vehicle as per the mandate
under the law.
16. On an overall re-appreciation of the pleadings and
materials on record, I am of the considered opinion that, the
additional third respondent is the owner of the offending
vehicle as reflected in the registration book. In such
circumstances, the finding of the Tribunal that the
respondents 2 and 3 are liable to pay compensation to the
petitioners is in accordance with law and justifiable. I do
not find any error or illegality in the impugned award
warranting interference by this Court. In light of the
aforesaid finding, I also hold that the consequential orders
MACA.No.3325 OF 2015
namely Annexures A4, A6 and A8 are also in accordance
with law.
In the result, the appeal fails and is dismissed,
confirming the impugned award passed by the Tribunal. The
parties shall bear their respective costs.
Sd/-
C.S.DIAS
SKS/23.3.2021 JUDGE
MACA.No.3325 OF 2015
APPENDIX
APPELANTS ANNEXURES
A1- CERTIFIED COPY OF THE SALE LETER ACCEPTED BY THE LEARNED
TRBUNAL.
A2-CERTIFIED COPY OF THE WRITTEN STATEMENT
A3-TRUE COPY OF THE REVIEW PETITION IA 3584/2015 IN OP MV
1108/2010 DATED 12.6.2015
A4-CERTIFIED COPY OF THE ORDER DATED 23.9.2015 IN I.A. 3584/2015
IN OPMV 1108/2020
A5-TRUE COPY OF THE IA 3586/2015 DATED 12.6.2015 FOR CORRECTION
A6-CERTIFIED COPY OF THE ORDER DATED 23.9.2015 IN IA 3586/2015
IN OPMV 1108/2010
A7-TRUE COPY OF THE PETITION DATED 31.8.2015 IN IA 5007/2015 IN
OPMV 1108/2010
A8-TRUE COPY OF THE DISMISSAL ORDER DATED 23.9.2015 IN IA
5007/2015 IN OPMV 1108/2010
