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2024 DIGILAW 842 (KER)

Abbas v. N. K. Sabira W/o Late Kochu Mkkar

2024-07-12

V.G.ARUN

body2024
JUDGMENT : V.G. ARUN, J. 1. The appellant was the additional 5th respondent in O.P. (M.V) No. 740 of 2008 filed by respondents 1 to 4, seeking compensation for the death of Noufal, son of the 1st respondent and brother of respondents 2 to 4. The fatal accident occurred on 29.07.2008, when the stage carriage bus bearing registration No. KL-07 AJ 8303 driven in a rash and negligent manner by the th respondent hit against the motorcycle ridden by Noufal. At the time of the accident, Noufal was aged 24 years and was working as a Service Technician in a private company on a monthly salary of Rs.7,500/-. As against the claim for Rs.9,06,500/-(limited to Rs.7,00,000/-) raised by respondents 1 to 4, the Tribunal awarded Rs.8,90,000/-. The insurance policy of the bus not being valid on the date of accident, the 8th respondent insurer was exonerated from the liability of paying the compensation. 2. In the claim petition, respondents 1 to 4 had named the th respondent as the registered owner of the vehicle, the 6th respondent as the previous owner and the 7th respondent as the driver of the stage-carriage. In his written statement before the Tribunal, the 6th respondent took up the stand that he was not the owner or insured of the bus at the time of the accident and averred that the vehicle had been transferred to the appellant on 14.08.2006. He further stated that, after the accident, the vehicle was released on Kychit to the 9th respondent at the appellant's instance. Thereupon, respondents 1 to 4 filed an interlocutory application to implead the appellant and the 9th respondent as additional respondents 5 and 6 in the claim petition and the same was allowed by the Tribunal. 3. During the course of its enquiry as to the ownership of the vehicle, the Tribunal found that as per Ext.B1 document dated 14.08.2006, the 6th respondent, who was the registered owner had agreed to sell the vehicle to the appellant and that, after the accident, the bus had been released to the 9th respondent under Ext.B2 Kychit. The Tribunal thereupon concluded that the 5th and 9th respondents have no connection with the vehicle and proceeded to exonerate respondents 5, 6 and 9 from liability. The Tribunal thereupon concluded that the 5th and 9th respondents have no connection with the vehicle and proceeded to exonerate respondents 5, 6 and 9 from liability. Consequently, the appellant, in his alleged capacity as the owner of the vehicle was held liable to pay the compensation along with 7th respondent driver. The challenge in this appeal is against the mulcting of liability on the appellant by finding him to be the owner of the vehicle. 4. Adv.A.N.Santhosh, learned Counsel for the appellant put forth the following contentions to assail the findings of the Tribunal in that regard: The 6th respondent was the registered owner of the vehicle at the time of accident and the permit stood in the name of the 5th respondent. An agreement for sale of the vehicle entered into between the appellant and the 6th respondent at a much earlier point of time cannot be the basis for finding the appellant to be the owner of the vehicle. Admittedly, ownership of the vehicle was never transferred to the appellant in the prescribed manner. The relevant provisions of the Motor Vehicles Act, 1988 ('the M.V.Act' for short) and the precedents on the point leave no room for doubt that the owner and driver are liable to pay the compensation. To buttress the contention, reliance is placed on the definition of owner at Section 2(30) of the M.V.Act, the Apex Court's decisions in P.P. Mohammed vs. K. Rajappan, 2008 17 SCC 624 and Pushpa vs. Shakuntala, 2011 (2) SCC 240 and the Division Bench decision of this Court in Sheji vs. Mohammedali Shehabudeen and Another, 2016 (2) KHC 410 . Reference is made to Annexure A1 registration particulars of the vehicle bearing No. KL-07 AJ 8303 to point out that the 6th respondent was the registered owner of the vehicle upto 05.08.2008, on which date the ownership was transferred to the 5th respondent. 5. It is the further contention of the learned Counsel that along with the 6th respondent, the 5th respondent, who was the permit holder at the relevant point of time, is also liable to pay the compensation. In support for this argument, the Apex Court's decision in Anamika vs. Jaipal Singh, 2023 KHC 7231 is pressed into service. 6. Adv.Abdul Rasheed appearing for respondents 1 to 4/claimants submitted that the compensation fixed by the Tribunal is inadequate. In support for this argument, the Apex Court's decision in Anamika vs. Jaipal Singh, 2023 KHC 7231 is pressed into service. 6. Adv.Abdul Rasheed appearing for respondents 1 to 4/claimants submitted that the compensation fixed by the Tribunal is inadequate. According to the learned Counsel, following the decision of the Apex Court in Sarala Verma and Others vs. Delhi Transport Corporation and Another, 2009 (6) SCC 121 , 18' should have been taken as the multiplier and 40% of the notional income ought to have been added towards future prospects. 7. I heard the learned Counsel for the other respondents also. 8. Annexure A1 document produced in appeal indisputably proves that the 6th respondent was the owner of the vehicle till 05.08.2008. In this context it is essential to note that Section 2(30) of the M.V.Act defines ‘owner’ as the person in whose name the motor vehicle stands registered. Further, Section 168(1) of the M.V.Act stipulates that, while passing the award, the Tribunal should specify the person or persons to whom compensation is to be paid and whether the amount is to be paid by the 'insurer' or 'owner' or 'driver' of the vehicle involved in the accident or by all or any of them. In the case at hand, the Tribunal has directed the appellant to pay the compensation merely based on an agreement for sale executed on 14.08.2006, without even finding the appellant to be the owner of the offending vehicle. On the other hand, the Tribunal had found the 5th respondent (sic) to be the owner at the relevant point of time. As would be evident from Ext.B3, the 5th respondent was only operating the vehicle on the strength of the permit granted in his name. Here, the provisions of the Kerala Motor Vehicles Rules dealing with transfer of permit and responsibilities of the permit holder assumes relevance. As per Rule 178, a permit can be transferred if the permit holder, together with the person to whom he desires to make the transfer, submits a joint application in writing to the transport authority. Rule 153(2) casts a duty on the permit holder to ensure that the vehicle is operated in conformity with the Act and the Rules. As per Rule 178, a permit can be transferred if the permit holder, together with the person to whom he desires to make the transfer, submits a joint application in writing to the transport authority. Rule 153(2) casts a duty on the permit holder to ensure that the vehicle is operated in conformity with the Act and the Rules. By operating the stage-carriage without a valid insurance policy, as mandated by Section 146 of the MV Act, the 5th respondent had violated the conditions of the permit, thereby rendering herself liable to compensate the claimants. Under almost similar circumstances, the Apex Court in Anamika (supra) had held the registered owner and subsequent purchaser of the offending vehicle to be jointly and severally liable to pay compensation. The law laid down by the Apex Court by its decisions in P.P.Mohammed (supra) and Pushpa (supra) are also to the effect that, where ownership of the vehicle stood transferred without reporting the factum of transfer to the registering authority, the person in actual possession of the vehicle (de facto owner) as well as the person in whose name the vehicle stood in RTO records (registered owner) are liable to compensate the 3rd party, who had sustained injuries in the accident involving that vehicle. The above discussion leads to the conclusion that the 6th respondent registered owner and the 5th respondent permit holder are jointly and severally liable to pay the compensation awarded by the Tribunal. 9. The demand for enhanced compensation raised by the learned Counsel for the claimants cannot be entertained in the light of the decision of the Supreme Court in Ranjana Prakash and Others vs. Divisional Manager and Another, (2011) 14 SCC 639 . Therein it is held that the High Court cannot increase the compensation in an appeal filed by the owner/insurer. 10. In the result, the appeal is allowed in part. The finding of the Tribunal regarding the appellant's liability and the consequential direction to pay compensation are set aside. Respondents 5, 6 and 7 are held jointly and severally liable to pay the compensation awarded by the Tribunal. All other findings in the impugned award are upheld.