Kerala High Court
Sunitha & 2 Othrs vs Binu Alias Kunju on 7 April, 2022
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
MACA NO. 50 OF 2011
AGAINST THE AWARD OF MACT PALA IN OPMV 29/2009 DATED 19/7/2010
APPELLANTS/PETITIONERS:
1 SMT.SUNITHA SURESH, W/O LATE SURESH
VALLIYIL KAROTTU HOUSE, PIRAYAR KARA,KIDANGOOR,,
MEENACHIL TALUK, KOTTAYAM DISTRICT.
2 SMT.RATHNAMMA, W/O.KUTTAPPAN
VALLIYIL KAROTTU HOUSE,DO. DO.
3 HARISHA SURESH (MINOR, D/O.LATE SURESH
VALLIYIL KAROTTU HOUSE,DO. DO.
4 NANDANA SURESH, AGED 12 YEARS (MINOR)
REPRESENTED BY NEXT FRIEND SUNITHA SURESH
VALLIYIL KAROTTU HOUSE,DO. DO.
BY ADVS.
SRI.T.J.MICHAEL
SRI.JOSE MATHEW KAVALAKALAM
RESPONDENTS/RESPONDENTS:
1 BINU ALIAS KUNJU
S/O BALAKRISHNAN
THONNANAL HOUSE,MARIDOM KARA,
KIDANGOOR VILLAGE., PIN - 686583
2 SAJI, S/O CHINNAMMA, KANDAMKULATH HOUSE
ELANCADU PO, VIA MANIMALA, KOTTAYAM DISTRICT.,
PIN - 686514
3 THE ORIENTAL INSURANCE COMPANY LTD.
REP.BY DIVISIONAL MANAGER,KOTTAYAM DISTRICT.,
PIN - 686001
BY ADVS.
GEORGE CHERIAN (SR.)
GEORGE A.CHERIAN
ALEXY AUGUSTINE
ADV.LATHA SUSAN CHERIAN - R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 23.3.2022, THE COURT ON 07.4.2022 DAY DELIVERED THE
FOLLOWING:
MACA.No.50 of 2011
2
JUDGMENT
This appeal is directed against the Award passed in O.P.(MV) No.29/2009 on the file of Motor Accident Claims Tribunal, Pala.
2. Appellants are the claimants in the above O.P.(MV) and the legal heirs of deceased Suresh Babu. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short the Act) claiming a total compensation of Rs.20 lakhs on account of the death of deceased Suresh Babu (hereinafter be referred as the deceased). The 1st appellant is the wife, 2nd appellant is the mother and appellants 3 and 4 are the minor children of the deceased.
3. The incident was on 30.06.2008 at about 4.30 p.m. near Kadaplamattom junction in Kidangoor-Kadaplamattom road, while the deceased was traveling in an autorickshaw bearing Reg.No.KL- 05/M 1403 driven by the 1 st respondent. Though, he was taken to Medical College Hospital, Kottayam, he succumbed to injuries on the way to the hospital. It is alleged that the accident occurred due to the rash and negligent driving of the 1 st respondent. 2nd respondent is the registered owner of the offending vehicle and 3 rd respondent is the insurer.
4. Before the Tribunal, 1st and 2nd respondents remained ex-parte.
MACA.No.50 of 20113
5. The 3rd respondent insurer filed written statement denying the insurance coverage with respect to the offending vehicle on the date of accident. Policy with respect to the vehicle for the period from 22.7.2007 to 21.7.2008 is admitted. It is also contended that the vehicle was transferred long before and the present policy was taken in the name of the 2 nd respondent by suppressing the facts of transfer, hence, the policy is void abenitio due to suppression of material facts. The accident was not reported to the insurer by the insured and it is a violation of terms of contract of insurance. Appellants/claimants are put to strict proof of the income and occupation of the deceased. It is also contended that the quantum of compensation claimed is very high.
6. RW1 and 2 were examined. Exhibit B1, X1 and X2 were marked from the side of the respondents. Exhibit A1 to A8 were marked from the side of the appellants/claimants (hereinafter be referred as claimants).
7. The Tribunal after evaluating the evidence and materials found that there is violation of conditions of policy and insurance company is entitled to get reimbursement from 1 st and 2nd respondents. Claimants were allowed to realise a compensation of Rs.14,28,526/-.
8. In this case, the compensation awarded by the tribunal MACA.No.50 of 2011 4 under various heads are as follows:
Amount awarded Compensation allowed at different heads Rs.
Loss of dependency 13,84,526-00
Transportation to Hospital 1,000-00
Damage to clothing and articles 500-00
Funeral expense 7,500-00
Pain and suffering 5,000-00
Loss of estate 10,000-00
Loss of love and affection 10,000-00
Loss of consortium 10,000-00
Total 14,28,526-00
9. Dissatisfied with the award passed by the Tribunal under various heads, claimants came up in appeal before this Court on various grounds stated in the memorandum of appeal.
10. Though notice was duly served upon 1st and 2nd respondents there was no appearance on behalf of them before this Court. The Standing Counsel appeared on behalf of the 3 rd respondent insurance company. Lower court records were called for and perused. Both sides were heard.MACA.No.50 of 2011 5
11. According to the learned counsel for the claimants, the deceased was a police constable and his income was proved duly through Exhibit A8 the salary certificate. The gross salary was Rs.16,031/- but the Tribunal applied split multiplier by adopting multiplier of 11, though the deceased was 43 years and the proper multiplier as per Sarala Varma v. Delhi Transport Corporation (2009 (6) SCC 121) which has been followed in National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) is '14'.
12. The learned counsel also contended that an addition of 30% of the monthly income towards future prospects as per Sarala Varma which has been approved by Pranay Sethi ought to have been awarded. He also contended that the compensation awarded under the conventional heads is also not in tune with Pranay Sethi, further that 10% enhancement of the same after three years as directed in Pranay Sethi is to be additionally awarded.
13. The learned counsel for the 3rd respondent on the other hand would contend that the deceased would have future service of 11 years only at the time of accident. Hence, the multiplicand based on Exhibit A8 can be only for 11 years and thereafter, for the remaining three years notional income alone can be taken.
14. So, the question for determination is whether the course MACA.No.50 of 2011 6 adopted by the Tribunal in fixing multiplier of 11 alone, considering the future period of service of the deceased is correct and whether a split multiplier can be adopted in this case as contended by the learned counsel for the 3rd respondent and also whether the claimants are entitled for 30% enhancement of income towards future prospects and also regarding enhancement on account of conventional heads.
15. In the present case, undoubtedly the deceased being 43 years, the proper multiplier to be applied is '14', but the Tribunal applied multiplier of '11' alone, taking into account the fact that claimant would be retiring after 11 years and 11 months. Whether that course adopted by the Tribunal is legally sustainable is the issue. The counsel for the 3rd respondent would contend that the split multiplier ought to have been applied by fixing a notional income after 11 years that is for a period of 3 years after the retirement. Whether split multiplier can be applied in this case as per the present position of law is another question to be resolved.
16. As stated earlier in Sarala Varma it has been made as thumb rule that the multiplier to be applied in cases of the age group of 41 to 45 is 14. In this case admittedly the deceased was 43 years of old, but the Tribunal adopted the multiplier of 11 for the reason that the deceased left 11 years and 11 months service MACA.No.50 of 2011 7 alone. Whether it would be a reason for adopting a different standard than prescribed by the Apex court in Sarala Varma which is subsequently upheld by the constitution bench in Pranay Sethi?
17. In Puttamma & Others v. K.l. Narayana Reddy & Another (2013 (15) SCC 45) a two Judge Bench of the Apex Court specifically held that departure from usual multiplier system and adoption of split multiplier by the High Court without disclosing any reason is unsustainable. In that case the deceased was 48 years and he had been working as a Typesetting Assistant in Computer Section of the Mysore Printers Limited (Deccan Herald). His wife and children preferred the claim before the Motor Accidents Claims Tribunal. Tribunal awarded a compensation of Rs.9,03,600/-. Dissatisfied with the award they approached the High Court which adopted a split multiplier and applied multiplier of 10 for the multiplicand of Rs.8,295/- and multiplier of 2 for the multiplicand of Rs.4,147/-. Aggrieved by the same they approached the Apex court. The Apex court categorically held that in the absence of any specific reason and evidence on record, the Tribunal or the Court should not apply split multiplier on routine course and should apply the multiplier as per the decision of the Supreme Court in Sarla Verma as affirmed in Reshma Kumari & Ors. v. Madan Mohan & Anr.,((2013) 9 SCC 65) : 2013 (3) SCC (cri) 826.
MACA.No.50 of 20118
18. In N.Jayasree & Ors. v. Cholamandalam MS General Insurance Company Ltd. 2021 (6) KHC 163, 2021 KHC on line 6640, 2021 (6) KHC 163 again the question of split multiplier came up for consideration before the Apex court. In that case the deceased was 52 years and at the time of accident he was working as Assistant Professor. In para 14 of the said decision K.R. Madhusudhan v. Administrative Officer [2011 (4) SCC 689] has been quoted where in it has been found that the High Court instead of maintaining the compensation in the appeal filed by the appellant reduced the same. In doing that High Court has not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason thereof. It is also held that High Court has not considered the clear and corroborative evidence about the prospects of future increment of the deceased. When the age of the deceased is between 51 and 55, the multiplier is 11 and it was found that the Tribunal has not committed any error by accepting that multiplier and it is further found that why the High Court chosen to apply the multiplier of 6 is failed to be understood and accordingly the judgment of the High Court was set aside as perverse for not considering the future prospects of the deceased and also for adopting split multiplier method. It is also held that MACA.No.50 of 2011 9 without any specific reason and evidence on record the Tribunal or court should not apply split multiplier in routine course and should apply multiplier as per decision in Sarala Varma as affirmed in Reshma Kumari.
19. In the present case, the deceased was a police constable aged 43 years. During the time of accident annual income of the deceased deducting the tax as per the award is Rs.1,88,800/-, that fact is not further disputed. Just for the reason that the deceased has left 11 years and 11 months service the Tribunal adopted 11 as the multiplier instead of 14. I don't find any rationale in adopting 11 as multiplier in the case on hand. The fact that he left 11 years and 11 months service is not at all a reason to adopt the multiplier of 11 instead of 14. The Tribunal also fails to take into account the future prospects, like increments and other amounts which the deceased would have obtained if at all this accident had not happened for the remaining period of service.
20. Tribunal should also bear in mind that multiplier as '14' among the age group of 41 to 45 might have been fixed after good thought and analysis because the Apex court would have been well aware that a person in government service may retire at the age of 56, 58, 60 depending upon the nature of service they hold. That is why a corresponding deduction has been given in every 5 years. MACA.No.50 of 2011 10 So when a person of that age group which has been specifically covered by Sarala Varma which has been approved subsequently in Reshama Kumari and also the constitution bench in Pranay Sethi, is died and when 11 years and 11 months are left for superannuation, there is no need further to adopt any split multiplier. Hence, contention advanced by the Standing Counsel for the insurer also cannot be accepted. Multiplier to be adopted is '14' instead of '11' applied by the Tribunal.
21. As discussed above an enhancement of 30% is further permissible, in the present case since the deceased was government servant aged 43. Claimants are four in number including the wife children and the mother of the deceased. So the ¼ has to be deducted towards personal and living expenses. Annual income is Rs.1,88,800/- (deducting the tax) 30% of it towards future prospectus would be 1,88,800x30/100=Rs.56,640/-. So annual income would be Rs.1,88,800+56,640=Rs.2,45,440/-. From that ¼ to be deducted towards personal and living expenses of the deceased 2,45,440x¼ =61,360. Annual contribution to family would be Rs.2,45,440-61,360=1,84,080/-. So the loss of dependency is Rs.1,84,080x14=Rs.25,77,120/-. From that amount already awarded by the Tribunal has to be deducted (Rs.25,77,120- 13,84,526). Balance is Rs.11,92594/-. So the claimants are entitled MACA.No.50 of 2011 11 to get enhanced compensation of Rs.11,92594/- towards loss of dependency.
22. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in Pranay Sethi followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. [2018 (18) SCC 130]. In that decision, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses.
23. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi was on 31.10.2017. So three years have elapsed. Hence, the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium.
24. In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident MACA.No.50 of 2011 12 occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads.
25. The Tribunal awarded Rs.7,500/- towards Funeral expenses, Rs.10,000/- towards Loss of estate and Rs.10,000/- towards Loss of consortium.
26. Hence, towards loss of estate and funeral expenses, claimants are entitled to get Rs.33,000/- [16500+16500]. From that the amount already awarded under those heads are to be deducted, then the amount will be Rs.15,500/-. [33000- 10,000+7500].
27. Next is with regard to the consortium to be awarded. MACA.No.50 of 2011 13 Law laid down by the Apex Court in Magma General Insurance Co. is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband - wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection and aid of the other in every conjugal relation". (Black's Law Dictionary (5th ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training". Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. Filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of MACA.No.50 of 2011 14 filial consortium.
28. In the present case the claimants are wife, children and mother of the deceased. All are entitled to compensation towards consortium. Hence, towards Loss of consortium the claimant Nos.1 to 4 are entitled to get (Rs.44,000x4) Rs.1,76,000/-, from that Rs.10,000/- already awarded by the Tribunal to be deducted, the balance amount is Rs.1,66,000/-. The Tribunal also awarded Rs.10,000/- towards love and affection. In New India Assurance Co.Ltd. v. Somwati and others [2020 (9) SCC 644] it has been held that once claimants are awarded compensation towards consortium no amount can be awarded towards love and affection. So the amount of Rs.10,000/- awarded by the Tribunal towards loss of love and affection has to be further deducted (Rs.1,66,000- 10,000). The balance would be Rs.1,56,000/-. So in total the claimants are entitled to get additional compensation of Rs.11,92,594 + 15,500 + 1,56,000 = Rs.13,64,094/- rounded off to Rs.13,64,100/-.
29. Learned counsel for the insurer would contend that there is violation of conditions of policy and pay and recovery has been ordered by the Tribunal since the insurer is entitled to get reimbursement from respondents 1 and 2 and hence seeks to maintain that order. It is contended that since the vehicle has been MACA.No.50 of 2011 15 transferred successively to several persons there is no privity of contract between the subsequent transferees and third respondent and there is violation of S.157(2) of the Act. Hence insurer is entitled to realise the amount from the insured. Learned counsel would also contend that respondents 1 and 2 though duly served in this appeal, they did not appear and there is no challenge of the order of pay and recovery passed by the Tribunal and hence there is no reason whatsoever to interfere with the order of the Tribunal directing pay and recovery.
30. It is true that the Tribunal found that even though the vehicle has been transferred, the name of the transferor in the insurance policy as well as in the registration certificate are not changed. Hence, there is violation of the conditions of policy and the insurance company is entitled to get reimbursement from the first and the second respondents.
31. The records will also go to show that the previous owner of the vehicle was examined as RW1 and according to him, he purchased the vehicle from one Manoj and sold the vehicle on 14.01.2008 and Mr.Saji was the registered owner of the vehicle. Mr.Saji was examined as RW2. He sold the vehicle to one Sabu after two months of purchase of the vehicle. According to RW2, even though the vehicle was transferred, the Registered ownership MACA.No.50 of 2011 16 is not changed. He admitted that Ext.X2 is the reply given by him to Ext.X1 notice issued by the police. So it has come out that even though RW2 is the registered owner of the vehicle, his name has not been changed in the Registration Certificate of the vehicle. So the question is whether inspite of the transfer of the vehicle, he continued to be the owner of the vehicle since his name has not been changed in the Registration Certificate.
32. Learned counsel for the insurer placed reliance on Complete Insulations Private Limited v. New India Assurance Co.Ltd : (1996) 1 SCC 221. But that was a case in which the extent of liability of the insurer in a case of damage to the vehicle insured arises for consideration. In that case, in pursuance of the transfer of registration of the car to the appellant on 15.06.1989, a request was made to the respondent/insurer for transfer of certificate of insurance and comprehensive insurance policy was made by the appellant on 26.06.1989 prior to the coming into force of the new Act with effect from 01.07.1989 and a reminder was also sent on 24.07.1989, that is, after the commencement of the Act but no reply was given by the respondent/insurer. The car met with a serious accident and was totally damaged and the appellant asked the respondent for assessment of damage and the respondent/insurer replied that the MACA.No.50 of 2011 17 appellant had no insurable interest in the car. The appellant filed complaint before the Consumer Redressal Commission which directed the insurer to pay the insured value of the vehicle along with costs and interest. But, the National Commission set aside that order and dismissed the complaint against which the appellant approached the Apex Court wherein it was held that though Section 157(1) of the New Act introduced with a deeming provision whereby the transfer of the certificate of insurance and the policy of insurance are deemed to have been made where the vehicle along with the insurance policy is transferred by the owner to another person, it is only in respect of third party risks that the new Act provides that the certificate of insurance together with policy of insurance described therein shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred. So, the provisions under the new Act and the old Act are held to be substantially the same in relation to the liability incurred. If the policy of insurance covers other risks as well for example, damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In that case, there was no MACA.No.50 of 2011 18 such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was held not liable to make good the loss due to damage to the vehicle. Even in that decision, it has been made specific that with respect to third party risk as per S.157(1), transfer of certificate of insurance and the policy of insurance are deemed to have been made when the vehicle along with insurance policy is transferred by the owner to another person. Claim at hand is at the instance of third parties.
33. Hence the issue which has come up for consideration in the above cited decision has no relevancy in the case in hand since it was in relation to the claim of the insured with respect to the property damage in a case where the vehicle was transferred without transfer of the insurance policy in the name of the transferee.
34. In this context, it is relevant to quote Pushpa alias Leela and others v. Shakuntala and others (2011) 2 SCC 240 wherein before two Judge Bench of the Apex Court, question arouse whether liability to pay compensation amount as determined by the Motor Accidents Claims Tribunal was of the purchaser of the vehicle alone or whether the liability of the recorded owner of the vehicle was co-extensive and from the recorded owner it would pass on to the insurer of vehicle. In that context, it has been held by the Apex MACA.No.50 of 2011 19 Court that notwithstanding the sale of the vehicle since the accident occurred during the subsistence of the insurance policy, the insurance company is liable to pay the amount. In that case also, in spite of transferring the vehicle by the owner to another person, no steps were taken by the transferer or transferee for the change of the name of the owner in the certificate of registration of the vehicle. In such circumstances, the Apex Court held that, in view of the omission of the transferer to take any steps for the change of the name of the owner in the certificate of registration, the transferer deemed to continue as owner of the vehicle for the purposes of the Act even though under the civil law he ceased to be its owner after its sale. It was also held that Section 157 of the Act has no relevance to the issue. In order to resolve the 'issue of the recorded owner' the definition of owner under Section 2(30) of the Act was also taken note of which in this context is relevant to be quoted and reads as thus:
"2(30): "owner" means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement."MACA.No.50 of 2011 20
35. Section 50 of the Act which lays down the procedure for transfer of ownership was also quoted which reads thus:
"50. Transfer of ownership.
(1) Where the ownership of any motor vehicle
registered under this Chapter is
transferred,-
(a) the transferor shall,-
(i) in the case of a vehicle registered within
the same State, within fourteen days of the
transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and
(ii) xxxx
(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.
(2) xxxx (3) xxxx (4) xxxx (5) xxxx (6) On receipt of a report under Sub-section (1), or an application under Subsection (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration. (7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority.
36. Thereafter, it has been found that undisputedly after the MACA.No.50 of 2011 21 transfer, neither the transferor nor the transferee took any step for change of name of owner in the certificate of registration of the vehicle. In view of that omission, transferor must be deemed to continue as the owner of the vehicle for the purposes of the Act, even though under civil law he ceased to be its owner after its sale. Ultimately, it was held that compensation amount is equally realisable from respondent No.3 insurance company and it was directed to make full payment of the compensation amount as determined by the Tribunal.
37. In Naveen Kumar v. Vijayakumar : 2018 (3) SCC 1 wherein a three Judge Bench, while dealing with liability of registered owner who transferred the vehicle but whose name continues to be reflected in the records of the registering authority, it has been held that he would be the owner who is liable and liability would not stand absolved for the purpose of Motor Vehicles Act. The person whose name is reflected in the records of the registering authority is the owner and is liable to compensate. The implication of the definition of the expression "owner" in Section 2(30) of the Act has also been considered and it was held that, as per Section 2(30), it is the person in whose name the motor vehicle stands registered for the purpose of the Act would be treated as the owner. Paragraph 12 of the judgment is relevant in this context, MACA.No.50 of 2011 22 which is extracted below:
"12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression 'owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the 'owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression 'owner' in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of MACA.No.50 of 2011 23 the law. In the present case, the First Respondent was the 'owner' of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi."
In that case, it is true that the vehicle was not having any insurance policy and the liability was fastened upon the registered owner.
38. The contention of the learned Standing Counsel for the insurer that 1st and 2nd respondents did not challenge the order of pay and recovery and did not contest the appeal also is of no avail. 2nd respondent gave evidence as RW2 before the Tribunal and RW1 also was examined and they hotly contested the case before the Tribunal.
39. In the present case, 2nd respondent (RW2) is the registered owner of the vehicle. The vehicle admittedly is covered by a policy of insurance in the name of the registered owner (RW2). So RW2 is to be fastened with the liability. Since, third respondent issued policy of insurance with respect to the vehicle, it is liable to indemnify the registered owner. Apex Court in Pushpa alias Leela has categorically held that S.157 has no relevance to the question involved. Hence the third respondent is liable to indemnify the MACA.No.50 of 2011 24 recorded owner in the Registration Certificate. It is an absolute liability of the insurer.
40. In this case, the third respondent even did not produce the copy of the policy also in order to establish violations of conditions of policy. So, at any rate, the direction of the Tribunal to the third respondent to pay the amount, entitling to reimburse the amount from first and second respondents is illegal and unsustainable and is hereby set aside.
41. In the result, appeal allowed enhancing compensation to Rs.13,64,100/- (Rupees thirteen lakhs sixty four thousand and one hundred only) which will carry interest @ 6% per annum from the date of petition. The enhanced compensation less the amount awarded towards consortium shall be apportioned among the claimants/appellants in the ratio 40:20:20:20. The 3rd respondent, the Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment.
The disbursement of enhanced compensation to appellants shall be made taking note of the law on the point and in MACA.No.50 of 2011 25 terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs.
Sd/-
M.R.ANITHA JUDGE jsr/SMF