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2002 DIGILAW 451 (ORI)

BHAGABAN JENA v. BIMBADHAR KANHAR

2002-07-24

A.S.NAIDU

body2002
JUDGMENT : A.S. Naidu, J. - The judgment and award passed under the Motor Vehicles Act in M.J.C No. 16 of 1986 by the Motor Accidents Claims Tribunal. Phulbam on December 21, 1991 is impugned in this appeal, filed u/s 173(1) read with Section 110-0 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act'). 2. Bereft of all unnecessary details, the short fact which are necessary for adjudication of this appeal are as stated below: Admittedly the present Appellant who was Respondent No. 1 before the Court below, was the owner of a motor cycle bearing registration number ORL 800. The said motor cycle met with am accident on August 7, 1 985 at 5. p.m. as a consequence of which the son of the claimant sustained grievous injuries and succumbed to the same. The claimant who is Respondent No. 1 herein, filed claim petition claiming compensation of Rs. 40,000.00. After receiving notice Respondent No. 1 the present Appellant (the original owner of the vehicle) filed objection inter alia taking the plea that he had sold away the offending motor cycle to Respondent No. 2 since October 5, 1984 and had filed an application before the R.T.O., Phulbani on January 28, 1985 to change the ownership of the vehicle. According to Respondent No. 1, as he ceased to be the owner of the motor cycle on the date of the accident he was not liable to pay any compensation and it was only Respondent No. 2. who had become the owner of the vehicle, liable to pay the compensation, if any. Respondent No. 2 also filed a written statement inter alia pleading that he had become owner of the offending motor cycle only on September 30. 1985 on which date the ownership of the vehicle was changed by the R.T.O. and not before. The accident having taken place on August 7, 1985 the date on which he was not the owner of the vehicle, he was not Iiable to pay any compensation, in ins alternative he pleaded that the driver of the motor cycle who was prosecuted in G.R. Case No 316 of 1985 in the Court of the S.D.J.M., Boudh was acquitted in the case on March 20. 1988 on the basis of a finding that he was not driving the vehicle and there was absolutely no evidence that the driver was involved in rash and negligence driving. 3. In support of the claim, the claimant examined two witnesses: whereas none of the Respondents examined any witness. Four documents were exhibited by the claimant which were marked as Exts. 1 to 4, Respondent No. 1 exhibited three documents, i.e. Ext.A - a letter issued by the R.T.O. Phulbani dated April 27. 1988 Ext.B - a sale money receipt: and Ext.C certified copy of the judgment in G.R. Case No. 316 of 1986. The learned Tribunal after going through the pleadings and assessing the evidence, both oral and documentary held that the deceased died due to the rash and negligent driving of the driver and that the claimant was entitled to a sum of Rs. 32,000.00 as compensation. He also held that since the Appellant was the registered owner of the vehicle on the date of the accident, he was liable to pay the compensation along with 13% interest thereon from the date of the award, i.e. December 21. 1991 till realisation within three months, failing which penal interest at the rate of 19% per annum would run from the date of the award till realisation. 4. Being aggrieved by the aforesaid judgment and award, the Appellant has approached this Court. 5. Mr. Dutta. learned Counsel for the Appellant, strenuously took me through the inter se pleadings as well as the documents. It appears that the Appellant filed a petition in this Court under Order 41 Rule 27 of the CPC for accepting the certified copy of the application filed by the Appellant and the affidavit filed by Respondent No. 2 before the R.T.O. as additional evidence. Both the documents being public documents, the same are accepted in evidence and marked as Exts.D and E respectively. 6. On the basis of the aforesaid documents. Mr. Dutta forcefully submitted that on the date when the accident took place, i.e. August 7. 1985, the Appellant had already transferred that vehicle in favour of Respondent No. 2 and it was Respondent No. 2 who was the owner of the vehicle. 6. On the basis of the aforesaid documents. Mr. Dutta forcefully submitted that on the date when the accident took place, i.e. August 7. 1985, the Appellant had already transferred that vehicle in favour of Respondent No. 2 and it was Respondent No. 2 who was the owner of the vehicle. It was submitted that the learned trial Court acted illegally and with material irregularity in holding that though the vehicle was transferred, yet as the ownership was changed only on 30th September, 1985 the Appellant continued to be the owner of the vehicle till then. 7. Thus the moot point which needs to be determined in this appeal is whether the registered owner is liable to pay the compensation although he had sold away and had delivered possession of the vehicle prior to the date of accident as the registration of ownership continued in his name on the date of the accident, and was changed later. 8. Mr. Deo appearing for Respondent No. 1 however, strenuously submitted that it is only from the date on which the ownership changed that Respondent No. 2 became liable. Till that date of Appellant being admittedly the registered owner of the vehicle, as would be evident from the records of the R.T.O. Respondent No. 2 had no liability. 9. This point has been directly answered in the decision reported in Purusottam Mishra Vs. Balaji Sahu and Others, and also in Ouseph Varghese Vs. Kunjoonju Alekutty and Others, 10. Heard learned Counsel for both sides. The money receipt Ext. B relied upon by the learned Counsel for the Appellant, does not throw much light, inasmuch as the date 5.10.1984' put thereon appears to have been overwritten. But then, the certificate issued by the R.T.O. Phulbani, Ext.A shows that an application for transfer of ownership was filed by Respondent No. 2 on 21.8.1985 and intimation had been given by the Appellant to the R.T.O on 28.1.1985 about the sale. In fact the sale of the offending vehicle stood completed on 5.10.1984 on receipt of consideration money of Rs 1.000 00 and handing over possession to Respondent No 2 It also appears that on 29.1.1985 the Appellant who was the original owner of the vehicle, had sworn an affidavit before the Executive Magistrate. Phulbani solemnly affirming that he had sold his vehicle. The said affidavit was attached to the application for transfer. Phulbani solemnly affirming that he had sold his vehicle. The said affidavit was attached to the application for transfer. Necessary fees for transfer was also paid on July 23, 1985 i.e. before the accident. Apart from the aforesaid document, the two documents which are filed before this Court as additional evidence i.e. the application filed by the Appellant for transfer of ownership before the R.T.O. Phulbani on 21.8.1985 and a affidavit swornby. Respondent No. 2 Promod Chandra Misra before an Executive Magistrate in the prescribed form intimating transfer of ownership of the motor cycle in consonance, with Rule 38-C and 39-A of the Motor Vehicles Rules. 1940 clinch the issue. In this affidavit, Respondent No. 2 Promod Chandra Misra has on solemn affirmation stated that the ownership of the motor cycle bearing registration number ORL 800 had been transferred to him by Appellant Bhagaban Jena. 11. The law is no more res integra that the date on which possession of the vehicle is handed over after receipt of the consideration money is the date on which ownership of vehicle is transferred, irrespectively of the fact whether the name of the registered owner is changed or not. is the date. This view of mine of fortified in the decision of Purushattam Misra case (supra). In view of the aforesaid clear position of lay. I have no hesitation to set aside the judgment and award of the learned Tribunal and hold that Respondent No. 2 who had purchased the motor cycle from the Appellant on 5.10.1984. i.e. prior to the date of the accident was the-owner of the vehicle and was liable to pay the compensation. 12. In the result, the appeal is allowed. The finding so far as ability of the Appellant to pay the compensation to the claimant is set aside and it is held that Respondent No. 2 Promod Chandra Misra, who was the owner of the vehicle on the date of the accident is liable to pay the compensation amount of Rs. 22,000.00 to the claimant however, in the peculiar facts and circumstances of the case. 22,000.00 to the claimant however, in the peculiar facts and circumstances of the case. I direct that the aforesaid compensation amount will fetch interest at she rate of 6% per annum from the date of the claim, i.e. 8.8.1986 and the compensation amount along with interest will be paid to the claimant within six months hence, failing which penal interest as directed by the Tribunal would be realised. If any amount has been deposited by the Appellant, the same be returned to him along with interest, if any, accrued thereon by a crossed cheque.