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2011 DIGILAW 3403 (MAD)

S. Gopalakrishnan v. Vijaya Pictures

2011-07-25

R.SUBBIAH

body2011
Judgment :- 1. This appeal is filed by the claimant in M.C.O.P.No.1261 of 1986, aggrieved over the award dated 04.05.1990 passed by the Motor Accidents Claims Tribunal (Chief Judge, Court of Small Causes), Madras. 2. The case of the appellant/claimant before the Tribunal was that on 02.10.1985, while he was travelling as a passenger in an auto-rickshaw bearing registration No.TMM 3533 from T.Nagar towards Kodambakkam, a car bearing registration No.ADM 2175 from Habibullah Road came in a rash and negligent manner and dashed against the said auto and as a result of which, the auto capsized and the appellant sustained grievous injuries. Hence, he filed a claim of Rs.one lakh as against the owner of the car, namely, the 1st respondent herein and the insurer, the 2nd respondent insurance company. 3. The 1st respondent, owner of the car, filed a counter stating that they were not the owners of the car bearing registration No.ADM 2175 at the time of the accident. The said vehicle was sold and delivered to one Sarath Babu, son of Subba Rao on 15.10.1982 and on the same day, the 1st respondent obtained a letter from the said sarath Babu, acknowledging the sale and delivery of the car. Only on receipt of the court notice, the 1st respondent came to know that Sarath Babu has not transferred the registration certificate in his name and, as such, the 1st respondent cannot be held responsible for the payment of compensation. 4. The 2nd respondent insurance company has also filed a counter stating that the policy for the car in question was valid only upto 25.07.1985 and the same was not in force on the date of accident. Under such circumstances, the insurance company is not liable to pay compensation. 5. After filing of the counter statement by the 1st respondent, the appellant has impleaded Sarath Babu as the 3rd respondent to the claim petition. The 3rd respondent has filed a counter statement stating that at the time of accident, the 3rd respondent was the owner of the vehicle. Though papers were sent for transfer of registration certificate and insurance, by oversight, the same were not processed. Thus, he prayed for the dismissal of the claim petition. 6. The 3rd respondent has filed a counter statement stating that at the time of accident, the 3rd respondent was the owner of the vehicle. Though papers were sent for transfer of registration certificate and insurance, by oversight, the same were not processed. Thus, he prayed for the dismissal of the claim petition. 6. In order to prove the claim, the claimant examined himself as P.W.1 besides examining P.Ws.2 to 5 and marked 8 documents as Exs.P-1 to P-8 and on the side of the respondents, one Baskar Rao, the Managing Partner of the 1st respondent was examined as R.W.1 and three documents were marked as Exs.B-1 to B-3. The Tribunal, after analysing the evidence both and oral and documentary, dismissed the claim petition as against respondents 1 and 2, holding that since the 3rd respondent had admitted in the counter that he is the owner of the car in question on the date of accident, he is liable to pay compensation of Rs.52,000/- with interest. Challenging the said finding, the claimant has filed the present appeal. 7. Learned counsel appearing for the appellant/claimant submitted that though the 1st respondent had submitted that the vehicle was sold to the 3rd respondent in the year 1982, the registration certificate, even on the date of accident, stood only in the name of the 1st respondent. The registration certificate has not been transferred in the name of the 3rd respondent, as admitted by the 1st respondent as well as the 3rd respondent in their respective counter statements. Further, the policy marked on the side of the insurance company covering the period from 26.07.1984 to 25.07.1985, marked as Ex.R-1, stood in the name of the 1st respondent only. Therefore, on the date of accident, only the 1st respondent is the owner of the vehicle and not the 3rd respondent. Under such circumstances, the fining arrived at by the Tribunal that the 3rd respondent has to pay compensation is liable to be set aside and consequently, the 1st respondent has to be directed to pay the award amount. In this regard, the learned counsel has also relied on the decisions reported in DR.T.V.JOSE .vs. CHACKO P.M. @ THANKACHAN AND OTHERS ( (2001) 8 SCC 748 ) and PUSHPA @ LEELA AND OTHERS .vs. SHAKUNTALA ( (2011) 2 SCC 240 ). 8. Heard the learned counsel for the appellant and perused the materials available on record. 9. In this regard, the learned counsel has also relied on the decisions reported in DR.T.V.JOSE .vs. CHACKO P.M. @ THANKACHAN AND OTHERS ( (2001) 8 SCC 748 ) and PUSHPA @ LEELA AND OTHERS .vs. SHAKUNTALA ( (2011) 2 SCC 240 ). 8. Heard the learned counsel for the appellant and perused the materials available on record. 9. On a perusal of the award, I find that originally the claim was made by the appellant as against the owner-the 1st respondent and its insurer. But the 2nd respondent insurance company had established before the Tribunal by marking policy Ex.R-1 that on the date of accident, the policy was not in force and the 2nd respondent cannot be held responsible to pay compensation at any cost. Since the 1st respondent had taken defence stating that they had sold the car in the year 1982 itself and the purchaser of the car has not transferred the registration certificate in his name, the purchaser of the car was subsequently impleaded as the 3rd respondent in the claim petition, who has also admitted that the registration certificate of the car was not transferred in his name. Now it is the submission of the learned counsel for the appellant/claimant that since the Registration certificate was continued to be in the name of the 1st respondent, the 1st respondent alone is liable to pay the compensation. In this regard, an useful reference could be placed from the decisions cited by the appellant in this regard and in (2001) 8 SCC 748 , the Hon'ble Supreme Court has held as follows: "9. Mr.Iyer appearing for the appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the appellant was not the owner of the car on the date few the accident. Mr.Iyer submitted that merely because the name had not been changed in the records of RTO did not mean that the ownership of the vehicle had not been transferred. Mr.Iyer submitted that the real owner of the car was Mr.Roy Thomas. Mr.Iyer submitted that Mr.Roy Thomas had been made party-Respondent 9 to these appeals. He pointed out that an advocate had filed appearance on behalf of Mr.Roy Thomas but had then applied for and was permitted to withdraw the appearance. Mr.Iyer submitted that the real owner of the car was Mr.Roy Thomas. Mr.Iyer submitted that Mr.Roy Thomas had been made party-Respondent 9 to these appeals. He pointed out that an advocate had filed appearance on behalf of Mr.Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr.Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr.Roy Thomas had chosen not to appear in these appeals. He submitted that the liability, if any, was of Mr.Roy Thomas. 10. We agree with Mr.Iyer that the High Court was not right in holding that the appellant continued to be the owner as the name had not been changed in the records of RTO. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However, the appellant still continued to remain liable to third parties as his name continued in the records of RTO as the owner. The appellant could not escape that liability by merely joining Mr.Roy Thomas in these appeals. Mr.Roy Thomas was not a party either before MACT or the High Court, In these appeals, we cannot and will not go into the question of inter se liability between the appellant and Mr.Roy Thomas. It will be for the appellant to adopt appropriate proceedings against Mr.Roy Thomas if, in law, he is entitled to do so". 10. The Hon'ble Apex Court, in (2011) 2 SCC 240 ), has held as follows: "14. The decision in T.V.Jose (Dr.) (2002 SCC (Crl.) 94) was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of Section 2(30) and Section 59 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was identified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd". 11. Further, since an insurance policy in respect of the truck was taken out in his name he was identified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd". 11. It is clear from the dictum laid down in the said decisions that the person, whose name continue to be in the record of the registering authority as the owner of the vehicle in question is liable for payment of compensation. In the instant case, it is admitted by respondents 1 and 3 that the registration certificate stood even on the date of accident in the name of the 1st respondent only and that apart, Ex.R-1, the copy of policy, would show that even in the year 1985, the premium was paid only in the name of the 1st respondent. Under such circumstances, in my considered opinion, the finding arrived at by the Tribunal directing the 3rd respondent to pay compensation and dismissing the claim petition as against the 1st and 2nd respondents is liable to be interfered with and as such, the said finding of the Tribunal is set aside. So far as the quantum of compensation is concerned, this Court feels that it is just and proper and hence, it is confirmed. Consequently, this Court holds that the 1st respondent is liable to pay the compensation to the appellant/claimant and directs that the 1st respondent shall pay the award amount of Rs.52,000/- with interest at 12% per annum within four weeks from the date of receipt of a copy of this order. The civil miscellaneous appeal is disposed of accordingly. No costs.