Dr. N. Marichamy v. K. Subburaj & others — 1996 DIGILAW 615 (MAD)

Judgment : 1. C.R.P.Nos. 64 to 68 are directed against the order passed in I.A.Nos. 130 to 134 of 1987 in M.C.O.P.Nos.26 to 30 of 1987. Respondents 1 to 8 herein are the petitioners in the main M.C.O.P. Nos.26 to 30 of 1987, filed for compensation. Respondents 11 and 12 are the proposed parties. 10th respondent is the Insurance Company. Petitioner in the said I.As. is one Dr.N.Marichamy, who is the 2nd respondent in the main H.C.O.Ps. Respondents 1 to 8 are the petitioners in the main M.C.O.P.s who claimed a compensation of Rs. 1,00,000 against the 2nd respondent in the M.C.O.Ps. on account of the death caused to one Krishnamurthy Gounder in a motor vehicle accident. In the said main petition for compensation petitioners have alleged that Dr.N. Marichamy was the owner of the vehicle involved in the accident. Marichamy contested the claim and filed a detailed counter-affidavit. According to him, he sold the vehicle in question on 18. 1985 for a cash consideration of Rs. 47,500 to one Muthusamy, who took delivery of the said vehicle on 18. 1985 itself. The records relating to the said vehicle were also handed over to him. Muthusamy has also executed necessary documents in favour of Dr.Marichamy showing that the vehicle in question was purchased by him. The accident took place on 7. 1986, nearly eleven months after the vehicle was sold to Muthusamy. Dr. Marichamy now understands that one R.Vasudevan, S/o.K.Rangasamy Chettiar, Vasantha Dyeing, 8/7 Thondanpalayam, Bhavani was the owner of the vehicle in question at the time of the accident. It is also stated that the said R.Vasudevan got release of the vehicle from the Police custody on 7. 1986 after the inspection by the Motor Vehicles Inspector. All these facts were mentioned in the reply notice sent by Dr. Marichamy to the notice sent by the lawyer appearing for the claimants 1 to 8. But the said Muthusamy and R.Vasudevan were not impleaded as parties to those proceedings. The 10th respondent Insurance Company disowned its Liability on the ground that the petitioner herein sold the vehicle prior to the accident. Therefore according to the petitioner unless the abovesaid two persons, viz., Muthusamy and R.Vasudevan are impleaded as parties respondents in the main petitions the claimants would be put to irreparable loss and hardship. The 10th respondent Insurance Company disowned its Liability on the ground that the petitioner herein sold the vehicle prior to the accident. Therefore according to the petitioner unless the abovesaid two persons, viz., Muthusamy and R.Vasudevan are impleaded as parties respondents in the main petitions the claimants would be put to irreparable loss and hardship. It was therefore pleaded that Muthusamy and Vasudevan should be directed to be impleaded as party to these proceedings. Claimants in the main M.C.O.Ps. submitted by filing a counter that the petition filed by Dr .Marichamy under Order 1, Rule 10 (2) CPC to implead S. Muthusamy and R.Vasudevan as respondents in the M.C.O.Ps. is unsustainable in law. The proposed parties are fictitious persons and they are hand in glove with the petitioner to defeat the claim of the claimants. According to the respondents the averments contained in the petition filed by Dr.Marichamy are tell-tale and the documents are fabricated. On the date of the accident, as per the records, the car in question was standing in the name of the petitioner and he was having the insurance cover and all the allegations contra are false and irrelevant. According to them the provisions of Order 1, Rule 10 (2) C.P.C. would not be applicable to the summary proceedings. According to them, this application was filed after the closure of the application filed under Section 92-A and the particulars furnished with regard to the above said two persons are insufficient. 2. In the counter filed by the 12th respondent it was submitted that the petition filed by Dr.Marichamy is untenable and therefore, it is liable to be dismissed in limine. It is stated that provisions of Order 1, Rule 10, CPC. cannot be made applicable to these proceedings. According to the 12th respondent the owner of the vehicle was Dr.Marichamy himself. He wanted to implead the other two persons to create confusion. It was further submitted that the petitioner can prove that he was not the owner of the vehicle at the time of the accident and it is not incumbent upon him to prove who are the real owners at the time of accident. It was therefore pleaded that the application filed by Marichamy is liable to be dismissed. 3. On hearing the parties concerned, the lower court came to the conclusion that the applications filed under Order 1, Rule 10, CPC is not maintainable. It was therefore pleaded that the application filed by Marichamy is liable to be dismissed. 3. On hearing the parties concerned, the lower court came to the conclusion that the applications filed under Order 1, Rule 10, CPC is not maintainable. Accordingly, the said applications were dismissed. It is against those orders, the present revisions were preferred by the said Dr.Marichamy. 4. According to the learned counsel appearing for the petitioner herein on the date when the accident took place, the petitioner was not the owner of the vehicle in question. It was already sold and transferred to one Muthusamy for Rs.47,500. The petitioner also understands that the vehicle is now with one R.Vasudevan. Therefore according to the petitioner in order to help the claimants he attempted to bring on record the above said two persons viz. Muthusamy and Vasudevan as parties to the main M.C.O.Ps. as otherwise even if the claimants obtain an order in their favour, it may not be possible for them to recover the compensation amount. Therefore, it was submitted that the lower court was not correct in not impleading the above said two persons as parties to the proceedings pending before the Motor Accidents Claims Tribunal. .5. The learned counsel appearing for the Insurance Company also supported the petitioner stating that if the vehicle was already transferred as alleged by the petitioner then the proper course would be to implead those two persons in whose name the vehicle in question was sold and transferred. Therefore, for the benefit of the claimants the learned counsel appearing for the Insurance Company submitted that those two proposed parties mentioned by the petitioner herein should also be impleaded as parties in the proceedings pending before the Tribunal. 6. I have also heard the learned counsel appearing for the claimants. Though originally they filed a counter stating that it is not necessary to implead the proposed parties as suggested by the petitioner herein, but ultimately learned counsel for the claimants agreed with the line of arguments advanced by the Insurance Company that in case if the compensation is awarded and the vehicle is transferred as alleged by Marichamy it would be helpful for the claimants to realise the compensation amount from the proposed parties. 7. I have heard the counsel appearing on all three sides. 7. I have heard the counsel appearing on all three sides. The point for consideration is whether the proposed parties can be impleaded as parties to the main proceedings under Order 1, Rule 10 C.P.C. 8. The fact remains that even though according to the petitioner herein the vehicle in question was transferred to one Muthusamy, the Registration Certificate still stands in the name of the petitioner, but it is the case of the petitioner that actually the vehicle was transferred in favour of one Muthusamy and thereafter the said Muthusamy transferred the vehicle in the name of P.Vasudevan and the said Vasudevan took delivery of the vehicle from the Police custody. 9. In Bhagwvathi Devi and Ors. v. M/s.L.S.Goal and Ors ., 1983 ACJ 123, the Supreme Court while considering the provisions of Section 25 of CPC and Section110 of the M.V.Act, 1939 held that, "in view of the observations of this Court in State of Haryana v. Darshana Devi , 1979 ACJ 205, we are of the view that the Tribunal constituted under the M.T.Act is a civil court for the purposes of Section 25 of C.P.C. We are satisfied that the cases before us are fit cases for being transferred from the file of the MA.C. Tribunal, Mordabad to the file of the M.A.C. Tribunal, Delhi." 10. In Oriental Insurance Company Ltd. v. Rajamani and others , 1992 ACJ 354, a Division Bench of this Court, while considering Section 95 of M.V.Act held that "In view of Section 31 of M.V.Act when a vehicle was transferred, sale price had been paid and possession of the vehicle was taken by the transferee prior to the date of accident, but the registration certificate continued to be in the name of the transferor, in such a case the transfer of the vehicle is complete and change of registration is not a condition precedent for transfer of ownership. The transferor was not held liable." 11. In Pannalal v. Sri Chandnal and Ors , 1980 ACJ 233 wherein the Supreme Court while considering the provisions of Section31 of the M.V.Act held that, "under the provisions of Section 31, the transfer of ownership is permitted, but the statute casts an obligation on the transferee to report to the registering authority concerned regarding the transfer of the vehicle along with a certificate of registration and then got the registration transferred in his name. It was therefore the duty of the plaintiff to have applied to the registering authority under Section 31 of the M.V. Act and got the registration transferred in his name. It has been found by the courts below that all the registration papers as also the memo of sale were handed over to the plaintiff. In these circumstances therefore if the plaintiff did not choose to move the registration authority he cannot be heard to say that he is entitled for refund of the purchase money or to claim damages. The decision of the court below, is therefore correct and do not warrant any interference by this Court." .12. In Sardar Singh v. U.P. State Road Transport Corporation , AIR 1992 All. 33 wherein the Allahabad High Court while considering the provisions of Sections 169 and 166 of the M.V. Act, 1988 and Order 26, Rule 4 of C.P.C. held that, "the following provisions of the First Schedule to the C.P.C.1908 shall so far as may be applied to the proceedings before the Claims Tribunal viz. Order 5 Rule 9 to 13 and 15 Rules 3 to 10, Order 24, Rules 2 to 21, Order 17 and Order 23 Rules 1 to 3. In view of the aforesaid Rule 21 of the W.P. Rules the provisions of O.26 of C.P.C. providing for commission to examine the witnesses are not applicable. The provisions of Section169 of the Act as stated above provides that the enquiry shall be made by the Tribunal under Section 168 subject to the rules that may be made in this behalf. Rule 21 of the rules made in this behalf does not provide the provisions of Order 26 to be applicable. No doubt the Tribunal is not a civil court rather it is persona designata. It may have certain powers of the civil court for the purposes of taking evidence on oath, etc., But that itself would not constitute it to be a civil court. Only those provisions of the Code have been made applicable which are specifically provided under different provisions of the Act and rules framed in this behalf. .. There are some cases of some other High Courts. In P.Shanmugham v. Madras Motor General Insurance Co. Ltd., AIR 1974 Mad. 363 the reference was made about Rule 18 of the Madras Motor Accident Claims Tribunal Rules. .. There are some cases of some other High Courts. In P.Shanmugham v. Madras Motor General Insurance Co. Ltd., AIR 1974 Mad. 363 the reference was made about Rule 18 of the Madras Motor Accident Claims Tribunal Rules. But in our State we have had different rules and our Rule 28 admits no exception and R-21 does not provide for Order 26 of the Code to be applicable." 13. In A.A. Haja Muniuddin v. Indian Railways , 1993 ACJ 235 wherein while considering the provisions of the Railway Claims Tribunal Act, 1987 and Order 33 of C.P.C. the Supreme Court held that Order 33 C.P.C. is applicable to the proceedings under the Railway Claims Tribunal Act, 1987. According to the Supreme Court the access of justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee." 14. In Basappa v. Srinivasa Reddy , AIR 1982 Karnt. 30 a Division Bench of Karnataka High Court held that, "petition filed under Section 110-A of M.V.Act, 1939 is not a plaint. The provisions of the C.P.C. cannot be invoked in considering claim petitions." 15. In Annamma Philip v. Accidents Claims Tribunal , Kozhikode and Ors, 1981 ACJ 25 wherein while considering the provisions of Section 110 Rule 6 and Rule 21 of the M.V.Act and rules the Kerala High Court held that, "though the provisions of Order 1, Rule 10 C.P.C. as such have not been specifically made applicable. There is no prohibition in the Act and the rules framed thereunder that a person cannot be brought on record subsequent to the filing of the application and the principle of inherent power to remedy injustice to apply to quasi-judicial authorities." 16. The Madras High Court in Union of India v. P.Kailasam, 1974 ACJ 488 has upheld the contention that under Order 1, Rule 10 (2) C.P.C. the Motor Accidents Claims Tribunal was competent to implead parties to enable it to effectively and completely adjudicate upon and settle all the questions involved in the claim." 17. The Madras High Court in Union of India v. P.Kailasam, 1974 ACJ 488 has upheld the contention that under Order 1, Rule 10 (2) C.P.C. the Motor Accidents Claims Tribunal was competent to implead parties to enable it to effectively and completely adjudicate upon and settle all the questions involved in the claim." 17. In Bijoy Kumar Mahaseth v. Dinanath Jha and others, 1981 ACJ 250 , the Patna High Court while considering the provisions of Section110-A of the M.V.Act, 1939 and Order 1 Rule 10 of CPC held that, "the delay in impleading the mother of the deceased after the expiry of six months accompanying with an explanation that she could not be impleaded due to wrong advise of the counsel. Claims Tribunal allowed the mother to be impleaded. The Patna High Court held that it was within the power of the Tribunal to condone the delay." 18. According to the facts arising in South India Insurance Co. Ltd. v. Lakshmi and others , 1971 ACJ 122 in a claim for compensation it was revealed that the vehicle involved in the accident had been transferred by the insured before the accident but the registration still continued to remain in his name. The Insurance Company repudiated its liability on the ground that the policy lapsed upon the physical transfer of the vehicle. But it was contended on behalf of the claimants that the transfer of vehicle did not take effect in so far as third parties were concerned until the transfer was duly registered with the Registry as envisaged in Section 31 of the M.V. Act, 1939. On these facts it was held that a policy of Insurance came to an end when a vehicle was physically transferred by the owner. Section 31 of the M.V. Act could not have the effect of keeping the policy alive qua third parties when the change of registry under Section 31 was not a condition precedent for the transfer of ownership of the vehicle. Section 31 merely imposes an obligation both on the transferor and the transferee of the vehicle to notify the transfer. Non-compliance of Section31 did not invalidate the transfer. 19. Section 31 merely imposes an obligation both on the transferor and the transferee of the vehicle to notify the transfer. Non-compliance of Section31 did not invalidate the transfer. 19. In Jamuna Bai v. Appa Rao and others , AIR 1981 A.P 186 wherein the A.P. High Court held that for the victims of the motor vehicle accident who are mostly ignorant and illiterate and whose number is ever growing, it is not easy some times to trace and identify the viniculum juris and find out the true owner. It was further held that Parliament has therefore given the power to the Claims Tribunal to entertain application for compensation even after the statutory period of six months provided that there are sufficient cause that prevented a claim being made within six months. Where the claimant has come to know about the real owner of the vehicle only after the insurance policy was filed in the court and it is only thereafter steps can be taken to add the real owner as a party respondent. Ultimately, it was held that there was sufficient justification for the Tribunal to entertain the application though filed beyond six months from the date of the accident." 20. In Shella Vianti and others v. R.V.Krishnachand and others, 1984 ACJ 1 while considering the provisions of Order 22, C.P.C., the Punjab & Haryana High Court held that though Order 1 Rule 10 C.P.C. does not in terms apply to the proceedings before the Tribunal, there is no prohibition in resorting to the principles contained therein. The technicalities of that rule are not to be taken note of by the Tribunal and it is only the spirit that has to be applied with the object of accuring the ends of justice. 21. According to the facts arising in the present case the 2nd respondent in the man M.C.O.P. Petition filed a petition to implead two persons as parties to these proceedings under Order 1 Rule 10 C.P.C. According to the petitioner, who is the 2nd respondent in main M.C.O.P. the vehicle in question was already transferred in the name of S.Muthusamy prior to the accident and the said Muthusamy in turn transferred the vehicle to one Vasudevan. But the fact remains that the registration certificate still stands in the name of the petitioner herein. But the fact remains that the registration certificate still stands in the name of the petitioner herein. By way of caution the petitioner herein filed the above said petition for impleading the above said two persons. In case if compensation is awarded the claimants must know who is the owner of the vehicle at the time of accident. In case if the transfer is held to be valid, then the proposed parties would be liable to pay the compensation. As otherwise the petitioner herein would be liable to pay the compensation. Under these circumstances on a careful consideration of the facts to arising in this case in the light of the judicial pronouncements sited supra, I am of the opinion that the petition filed under Order 1, Rule 10, CPC is maintainable and the proposed parties should be impleaded as parties to the main M.A.C.T. O.P. Proceedings as otherwise the claimants would suffer irreparable injury and hardship which cannot be compensated at a later stage. In view of all these reasonings the Tribunal was not correct in dismissing the applications filed under Order 1, Rule 10, C.P.C. in the abovesaid M.C.O.Ps. Therefore the order passed by the Tribunal in dismissing I.A.Nos.130 to 134 of 1987 in M.C.O.P.Nos. 26 to 30 of 1987 stands set aside. I.A.Nos.130 to 134 of 1987 are allowed and the proposed parties are directed to be impleaded as party-respondent in the main M.C.O.Ps. 22. In the result, the C.R.Ps. stand allowed. No costs.