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2003 DIGILAW 621 (CAL)

RAMPUKAR SHOW v. BIDUR BANERJEE

2003-12-08

A.N.RAY, JYOTESH BANERJEE

body2003
JOYTOSH BANERJEE, J. ( 1 ) THE instant appeal is directed against the judgment dated 18. 5. 2002 passed by the Judge, M. A. C. T. , 2nd Court, Bankura in a proceeding under section 166 of the Motor Vehicles Act registered as Motor accident Claim Case No. 26/99 / 157/97 ( 2 ) THE claimant/petitioners Bidur Banerjee and two of his minor children made the application on 20. 11. 97 praying for compensation to the extent of Rs. 5 lacs on the allegation that on 9. 11. 96 at about 1 p. m. Hansi Chatterjee (Banerjee), the deceased, the wife of the petitioner Bidur and mother of the other petitioners was proceeding on foot towards Bishnupur through radhanagar. From Bishnupur side suddenly a truck No. WBI-7191 came at an excessive speed and the victim was run over by such vehicle causing severe injuries on her vital parts of the body. After the accident, the victim was referred to Bishunupur Sub-Divisional Hospital where she succumbed to her injuries at about 2 p. m. on the same day. The petitioners have filed the application on the specific allegation that the accident took place due to rash and negligent driving of the offending vehicle, on a further allegation that the victim at the time of her death was aged about 46 years and she was Health Supervisor attached to radhanagar Primary Health Centre. Due to the unfortunate death of the victim the two minor petitioners who were aged 9 years and 6 years respectively at the time of such accident lost their mother at their tender age. The petitioners also claimed the compensation for mental agony, financial loss etc. ( 3 ) IN this proceeding there were 3 O. Ps including the Insurance Company. The Insurance Company (Oriental Insurance Co. Ltd.) in their written objection clearly stated that they were not liable to pay compensation to the petitioners because the offending vehicle was not insured with the O. P. /insurance Company on the date of accident that is to say on 9. 11. 96 and such offending vehicle was insured upto 7. 11. 96. Amongst two alleged owners, O. P. No. 2, the Managing director of M/s. Cadila Leasing and Finance Co. Ltd. alleged that the Company was not liable to give any compensation because the offending vehicle had already been sold to Rampukar Show on 12. 12. 11. 96 and such offending vehicle was insured upto 7. 11. 96. Amongst two alleged owners, O. P. No. 2, the Managing director of M/s. Cadila Leasing and Finance Co. Ltd. alleged that the Company was not liable to give any compensation because the offending vehicle had already been sold to Rampukar Show on 12. 12. 88 and the authority concerned was duly intimated about such transfer. The O. P. /company, further disclosed in the written objection that the name of the Company had already been changed to M/s. Glitter Leasing and Finance Company (P) Ltd. O. P. Rampukar Show in his written objection stated that he was not a registered owner of the said vehicle on the date of accident that is to say on 9. 11. 96 but the said Cadila leasing and Finance Company continued as the registered owner of the vehicle and also took the plea that the accident caused due to negligence on the part of the victim Hansi Banerjee. ( 4 ) IN the impugned judgement, the learned Tribunal found that the offending vehicle was insured under the Oriental Insurance Company for the period from 20. 11. 96 to 19. 11. 97 and the offending vehicle was transferred on 20. 12. 88 by o. P. /cadila Leasing Finance Co. Ltd. and O. P. Rampukar Show took possession of the said vehicle from the said Company and that the Company reported the matter to the authority concerned for change of the name of the ownership in favour of Rampukar in the year, 1988 and considering the circumstances, the learned Tribunal further found that there was no evidence that the offending vehicle was insured with the Oriental Insurance Company on 9. 11. 96 for which such Insurance Company had no liability to pay any compensation for the accident and O. P/rampukar Show as the owner should pay the compensation. On these findings, the learned Tribunal Judge assessed the total compensation at Rs. 3,60,000/- and directed the O. P. No. 1, the present appellant to pay the amount. 11. 96 for which such Insurance Company had no liability to pay any compensation for the accident and O. P/rampukar Show as the owner should pay the compensation. On these findings, the learned Tribunal Judge assessed the total compensation at Rs. 3,60,000/- and directed the O. P. No. 1, the present appellant to pay the amount. ( 5 ) AS the matter stands now, there is no dispute regarding the finding that the accident complained of took place due to negligence on the part of the driver of the offending vehicle, that the O. P. /insurance Company has no liability to pay such amount as the offending vehicle was not insured with the O. P. /company at the relevant point of time and as there was no proof that the offending vehicle was insured with any other company, the Tribunal directed one of the alleged owners to pay the compensation. There is also no dispute regarding the quantum of compensation assessed here. Only question for our consideration, in this proceeding is who is the owner of the offending vehicle at the relevant point of time when the accident took place as it is not disputed that in the facts and circumstances of the case, the compensation money awarded should be paid by the owner of such vehicle and none else. ( 6 ) WE have heard submissions made by the learned Advocate for the appellants and also the learned Advocates for O. Ps/insurance Company/claimant and another alleged owner of the offending vehicle M/s. Cadila Leasing and Finance Company. Learned Advocate for the O. P. /insurance Company has submitted that in the facts and circumstances of the case, the Insurance company is not at all liable to pay any compensation. Learned Advocate for the respondent/claimants on the other hand has supported the judgement of the tribunal by submitting that in the facts and circumstances of the case, the award was rightly passed against the appellant. We have already noted that in the present facts and circumstances , the fight here is between the two alleged owners of the offending vehicle. The learned Advocate for the appellant has submitted that the appellant was not the registered owner of the offending vehicle at the relevant point of time and therefore the appellant could not be held responsible to pay the compensation which had been awarded by the tribunal. The learned Advocate for the appellant has submitted that the appellant was not the registered owner of the offending vehicle at the relevant point of time and therefore the appellant could not be held responsible to pay the compensation which had been awarded by the tribunal. The learned Advocate for the O. P. /company on the other hand has submitted that the offending vehicle had been transferred in favour of the appellant long before the accident complained of took place and as per the provisions of the Motor Vehicles Act, 1939, the O. P. /company had taken all the steps following the transfer of the offending vehicle. So in the facts and circumstances of the case, it cannot be said that the O. P. / Company was in any way responsible for the accident as the owner of such vehicle. ( 7 ) BEFORE we proceed further to consider the question who amongst the owners of the offending vehicle was responsible under the law to pay the amount of compensation awarded by the learned Tribunal, it is to be noted here that the learned Tribunal in the judgement has clearly come to a conclusion that the o. P. / Company sold away the offending vehicle to the appellant on 21. 12. 88 and the learned Judge came to such a finding on the basis of relevant documents like sale-confirmation receipt, sale receipt and delivery receipt which have been marked Ext-B, C, D and E. The learned Judge further found that the evidence on record made it clear that the offending vehicle No. WBI-7191 was transferred on 21. 12. 88 by Cadila Leasing and Finance Company and the appellant rampukar Show took possession of the said vehicle from the said company. So when the vehicle in'question was transferred at that time, the old Act, namely, motor Vehicles Act, 1939 was in force. The new Act, namely, Motor Vehicles act, 1988 came into force only on 1st July, 1989 that is to say much after the sale and actual transfer of the offending vehicle in favour of the appellant. So when the vehicle in'question was transferred at that time, the old Act, namely, motor Vehicles Act, 1939 was in force. The new Act, namely, Motor Vehicles act, 1988 came into force only on 1st July, 1989 that is to say much after the sale and actual transfer of the offending vehicle in favour of the appellant. Now, in this case, the learned Advocate for the appellant has wanted to satisfy us that at the relevant point of time when the accident took place, the appellant was not the owner of the vehicle and for this purpose he has drawn our attention to the definition of "owner" under section 2 (30) of the Motor Vehicles Act, 1988. Under that definition 'owner' means a person in whose name a motor vehicle stands registered 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. It is contended by the learned Advocate that there is nothing to show in the instant case that at the relevant point of time, the motor vehicle in question was subject of a hire-purchase agreement or an agreement of lease etc, therefore under the law as it stands now, the O. P. /company remained owner at the time when the offending vehicle caused the accident. ( 8 ) THE learned Advocate for the O. P. /company on the other hand has submitted that the transfer of the vehicle after the sale in favour of the appellant was made long before the Motor Vehicles Act, 1988 came into operation. Therefore, on such transfer the O. P. /company who was the original owner did everything what was required under the Motor Vehicles Act, 1939 to be done by the owner in connection with the transfer and after such actions were taken it cannot be said that the O. P. /company should be held responsible for compensation as registration of the vehicle remained with the O. P. /company for the negligence/inaction on the part of the appellant to get the vehicle in question registered in his name. It is true that if the vehicle in question was transferred on 21. 12. 88 on sale the previous owner is required to take action as per the provisions of Motor Vehicles Act, 1939. It is true that if the vehicle in question was transferred on 21. 12. 88 on sale the previous owner is required to take action as per the provisions of Motor Vehicles Act, 1939. Exhibit-C at page-64 (P. B.) goes to show that appellant took delivery of the vehicle on 21st December, 1988 and kept the same in his possession. The appellant also admits the signature on such letter which has been marked Ext-C (l ). It further transpires that after the transfer the O. P. /company wrote a letter to the Motor Vehicles Department, howrah informing the sale and delivery of the vehicle in question to the appellant on that very day. ( 9 ) SECTION 31 of the Motor Vehicles Act, 1939 provides the procedure as to how the transfer of ownership of a motor vehicle is to be reported by the transferor and the transferee. The language of the section clearly indicates that such obligation is cast both upon the transferor and the transferee to report the transfer to the registering authority. It is incumbent upon the transferor to report the fact of transfer to the registering authority within whose jurisdiction the transfer is to be effected, within fourteen days of the transfer, and he shall simultaneously send a copy of the said report to the transferee. The transferee has also similar obligation and to forward the certificate of registration to that registering authority together with the prescribed fee and copy of the report received by him from the transferor in order that the particulars of transfer of ownership may be entered in this certificate of registration. In the instant case, the learned Advocate for the appellant has tried to convince us that the O. P. /company as the transferor has failed to comply with its obligations under section 31 of the Motor Vehicles Act, 1939 and therefore there was no question on the part of the transferee to take any step in the matter and in this way the original owner remained the registered owner even on the date when the offending vehicle met with the accident. It is further submission of the learned Advocate that the compensation awarded by the Tribunal, should be so awarded against the O. P. /company and not against the appellant as has been done by the learned tribunal. It is further submission of the learned Advocate that the compensation awarded by the Tribunal, should be so awarded against the O. P. /company and not against the appellant as has been done by the learned tribunal. On the other hand, the learned Advocate for the O. P. /company has tried to convince us that the O. P. /company informed the registering authority on the very date of transfer of the vehicle by writing a letter which remains not marked on the record due to over-sight. As it appears from the evidence of o. P. W-1, S. S. Goel that he proved the letter and on proof the letter in question has been marked Ext-E. Unfortunately only the signature of the appellant in hindi has been marked Ext. E-1 on such letter. Be that as it may for all practical purposes the letter is a documentary evidence in this case which has been duly proved by the aforesaid witness and from such letter it is evident that the same was received in the office of the registering authority. The learned Advocate for the appellant has tried to convince us that just a letter marked Ext. E will not be sufficient to relieve the original owner from the liability of further action from such owner as required under the law. But we do not find any reason to enter into that question because the provisions contained in section 31 of the aforesaid Act is nothing to do with the ownership of the vehicle as it is well settled that the transfer of ownership of a vehicle, being a movable property, is governed by the Sale of Goods Act. The said provisions only provide for the regulation of the use of motor vehicle in public places and to impose penalty if the requirements of the Act are not fulfilled. Failure to notify the transfer visits the transferor or even the transferee with certain penal consequences; but it does not make the transfer invalid. In a similar way, the endorsement of transfer in the record of registering authority is also not a condition precedent to the transfer to take effect, nor does it deal with the legality or otherwise of the transfer which must be determined under the general law and also the Sale of Goods Act. In a similar way, the endorsement of transfer in the record of registering authority is also not a condition precedent to the transfer to take effect, nor does it deal with the legality or otherwise of the transfer which must be determined under the general law and also the Sale of Goods Act. The similar view has been taken by the Full Bench of the Karnataka High Court in the case of Paragounda vs. Bhimappa and Ors. , reported in AIR 1993 Karnataka 103. In a similar question, the Full Bench of Andhra Pradesh High Court, in the case of Madineni Kondaiah and Ors. etc. vs. Yaseen Fatima and Ors. etc. , reported in air 1986 Andhra Pradesh 62, made the following relevant observation :"while considering the question, whether the transfer of vehicle to the purchaser was not complete unless the certificate of registration was issued in the name of transferee, 'the first question we refer sections 22 and 31 of the Motor Vehicles Act, 4 of 1939 (hereinafter called the Act. ). No doubt, those provisions enjoin both on the transferor and the transferee to report factum of transfer of the vehicle to the registering authority and the owner is required to register the vehicle, we are not persuaded to hold on a careful reading of the said provision that the transfer is incomplete till the registration is effected in favour of the purchaser. The transfer of vehicle is governed by the provisions of Sale of Goods Act. In the absence of any agreement to the contrary payment of price, and delivery of vehicle make the sale complete, and the title passes to the purchaser. The obligation to register the vehicle is for the purpose of controlling and regulating the movement of vehicles by the authorities under the Act and they do not stand in the way of passing title to the purchaser. ' In making such observation, the reported judgement has clearly indicated that reliance has been placed on the judgement of the apex Court in the case of Pannalal vs. Chandmal, AIR 1980 SC 871 . " ( 10 ) NOW in this case, the vehicle in question had been transferred in favour of the appellant when the old Motor Vehicles Act was in operation. " ( 10 ) NOW in this case, the vehicle in question had been transferred in favour of the appellant when the old Motor Vehicles Act was in operation. But at the time of accident admittedly the new Act came into being and under section 2 (30) of Motor Vehicles Act, 1988. "owner" means a person in whose name a motor vehicle stands registered. It is also not disputed that at the relevant point of time when the accident took place, the offending vehicle stood registered in the name of the O. P. /company. The question, therefore is whether only for that reason the O. P. /company should be held liable for the compensation awarded by the learned Tribunal? We have already seen that it is established through the evidence that the offending vehicle was transferred in favour of the appellant on 21. 12. 88 and on that very day, the transferor/company informed the fact of transfer to the registering authority. It may be that in doing so such company did not comply with all the formalities which it should comply in accordance with law. But we have also seen from the discussion above that the said question is not relevant for deciding the ultimate question about the ownership of the offending vehicle at the relevant point of time. Suffice it to note that there is nothing to show that after the transfer of the vehicle in question on 21. 12. 88, the transferee/appellant took any step to get the vehicle in question registered in his name till the time of the accident on 9. 11. 96. That being so should the O. P. /company be held responsible for the compensation due to negligence on the part of the transferee/appellant only because the definition in section 2 (30) of the new Act defines the owner as the person in whose name the motor vehicle stands registered? In our considered opinion, in the facts and circumstances, the proper view would be that unless it is proved that the "registered owner" has ceased to be the owner of the vehicle, he continues to be liable in the event of an accident for the claims of the third party. In our considered opinion, in the facts and circumstances, the proper view would be that unless it is proved that the "registered owner" has ceased to be the owner of the vehicle, he continues to be liable in the event of an accident for the claims of the third party. In other words, the onus to establish cessation of his title in the vehicle by virtue of a bona fide transfer thereof lies upon the registered owner and, unless and until that burden is discharged, he would continue to be liable to meet the liability arising out of an accident involving the vehicle. The said view has been taken in the Full Bench decision of Paragounda vs. Bhimappa and Ors. , (supra ). We have already seen here that the transfer of the offending vehicle in favour of the appellant on 21. 12. 88 has been proved by the documentary evidence which has been accepted by the learned Tribunal. The specific finding to that effect of the learned Tribunal has not been challenged before us. Coupled with this, we find very important and relevant circumstances like making the prayer for custody of the vehicle by the appellant before the competent Court soon after the accident. All these clearly indicate that the registered owner ceased to be the owner of the offending vehicle at the relevant point of time. ( 11 ) THAT being the position, learned Tribunal, in our opinion, has rightly directed the appellant, as the owner of the offending vehicle to pay the compensation awarded. ( 12 ) IN the result, the appeal must fail. The appeal is dismissed. But having regard to the circumstances without any cost. Appeal dismissed.