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2005 DIGILAW 491 (PAT)

Md. Ali Murtaza v. State Of Bihar

2005-05-05

AFTAB ALAM

body2005
Judgment 1. This writ petition was filed praying for a direction from this court to the concerned authorities for release of the petitioners Auto rickshaw in his favour and to pay him certain monetary compensation for the period of the vehicles seizure. Then realising that over the period of its long seizure the vehicle had been rendered useless, the relief claimed in the case was slightly amended and in the supplementary affidavit filed on behalf of the petitioner the prayer for release of the vehicle was given up. Instead, a claim was made against the respondent authorities for the entire cost of the vehicle apart from an additional amount, as loss of earning, calculated @ Rs.300/- per day, for the illegal seizure of the auto-rickshaw and for not releasing it to the petitioner in a highly unreasonable and arbitrary way for a long period till it became quite valueless. 2. The facts of the case are simple, brief and without any controversy. The petitioner applied for a Vehicle Loan to the Bombay Mercantile Bank, Frazer Road Branch. The loan was sanctioned in his favour vide letter, dated 5.2.2003 issued by the Branch Manager (Annexure 3 to the supplementary affidavit). The sanction letter also enclosed a pay order of the same date for Rs.76,345/- drawn in favour of M/s Auto Syndicate. From the loan amount the petitioner purchased a Bajaj auto rickshaw bearing chasis no. 22FB JK-15638, Engine No. 22MB JK-15590 and P.C. No. 010201J vide sale letter no/B/1684. A photo copy of the invoice showing the sale of the auto rickshaw by M/s Auto Syndicate in favour of the petitioner for a sum of Rs.76,345/- (including T.O.T. @ 1%) is at Annexure 4. A photo copy of the receipt of the cheque issued by the Bombay Mercantile Bank as payment of the vehicle by the petitioner is at Annexure 4(A). The petitioner got the vehicle duly registered with the motor vehicle authorities and the auto rickshaw was assigned registration no. BR1U 8437. 3. A few months later on 16.8.2003 the vehicle, in course of its plying, met with an accident. The accident was obviously quite minor. It did not cause any injury to any third person nor any damage to anyone elses property. BR1U 8437. 3. A few months later on 16.8.2003 the vehicle, in course of its plying, met with an accident. The accident was obviously quite minor. It did not cause any injury to any third person nor any damage to anyone elses property. From the materials on record it appears that no case was instituted in respect of the accident but only a Sanha was entered (being Sanha No. 447 of 2003) at the Chowk RS. After the accident the petitioner apparently went away for getting some first aid leaving the vehicle on the road. In his absence from the site of the accident the auto rickshaw was seized by the police and it was removed and kept at the premises of a nearby petrol pump called M/s S.L. Miser Petrol Pump. 4. On 18.8.2003 the Officer Incharge of Chowk P.S. wrote a letter to the Motor Vehicle Inspector, Patna requesting him to inspect the seized vehicle and to send his inspection report to the police station. (A photo copy of the letter is at Annexure 1). After making the request for inspection of the vehicle seized by him the Officer Incharge seems to have put the entire matter out of his mind. He did not report about the seizure of the vehicle to the Magistrate under the provisions of the Code of Criminal Procedure or under rule 25 of the Police Manual. He took absolutely no action in the matter after writing the letter to the Motor Vehicles Inspector. 5. From the photostat copy of the letter of the Officer Incharge, Chowk P.S. addressed to the Motor Vehicle Inspector, Patna, it appears that it was received in the Motor Vehicle office by someone called Nagendra Prasad on 19.8.2003. Nothing happened thereafter and the petitioner simply ran from pillar to post for release of the vehicle. On 22.9.2003 a legal notice on his behalf was given to the Motor Vehicle Inspector, Patna but that also did not evoke any response. 6. It was in those circumstances that the petitioner filed this case on 19.12.2003 impleading the authorities of the Motor Vehicles Department besides the Officer Incharge, Chowk RS. as party respondents. The case was taken up about three months later on 15.2.2003 and till that date no counter affidavit was filed on behalf of any of the respondents. 6. It was in those circumstances that the petitioner filed this case on 19.12.2003 impleading the authorities of the Motor Vehicles Department besides the Officer Incharge, Chowk RS. as party respondents. The case was taken up about three months later on 15.2.2003 and till that date no counter affidavit was filed on behalf of any of the respondents. On that date, therefore, the State counsel was allowed two weeks time for filing counter affidavit. The case was re-listed on 2.3.2005 when it was once again adjourned on a prayer made by the State counsel on the plea that he was not able to get any instructions in the matter. It appears that it was only then that someone woke up in the Motor Vehicles Department and the Motor Vehicle Inspector went for the inspection of the vehicle on 22.3.2005. A memo testifying that the vehicle was inspected on that date is on the record of the case though no inspection report appears to have been submitted till the final hearing of the matter. 7. A counter affidavit was filed on behalf of the Dist. Transport Officer and the Motor Vehicles Inspector (respondents 2 and 3) on 28.3.2005. In the counter affidavit it is stated that the requisition, dated 16.8.2003 sent by the Officer Incharge, Chowk P.S. was received by one Nagendra Prasad who was a peon in the office of the Motor Vehicles Inspector but there was no record of the requisition in the office. The peon Nagendra Prasad acknowledged his signature on the receipt of the requisition but he was unable to state what happened of that letter. He only stated in a general way that the Motor Vehicle Inspector must have been apprised about it at the time it was received. It was further stated in the counter affidavit that the present incumbent to the post of Motor Vehicle Inspector, Patna had taken charge on 19.1.2004 and at the time of his joining there was nothing in the office to make him aware about the vehicle awaiting inspection by him. 8. The contents of the counter affidavit are not entirely without mischief and it is to be regretfully noted that there was a conscious and deliberate attempt to mislead the court on certain issues. 8. The contents of the counter affidavit are not entirely without mischief and it is to be regretfully noted that there was a conscious and deliberate attempt to mislead the court on certain issues. It was the claim of the petitioner that the illegal seizure of the vehicle had caused him a loss of earning at the rate of Rs.300-400/- per day. In reply to that claim, in para 9 of the counter affidavit it was stated "that the vehicle was not having permit to ply commercially and hence the claim is fictitious". The statement made in the counter affidavit clearly tried to suggest that the petitioner never had the permit to ply the vehicle commercially and its commercial plying was unauthorised and illegal. 9. In the rejoinder affidavit filed on behalf of the petitioner it is stated that the petitioner was granted temporary permit bearing no. 559 of 2003, dated 21.2.2003 for a period of four months from February 22 of June 21, 2003 (photocopy of the permit is at Annexure 6). It was further stated that the petitioner applied for further permit on 12.8.2003 with a challan of Rs. 45/-, of the same date and the petitioner was issued temporary permit no. 3127 of 2003, dated 12.9.2003 for the period of four months from 13.9.2003 to 12.1.2004. It was further stated that the petitioner resumed plying the vehicle on 13.8.2003 as he had deposited the challan for the grant of permit a day earlier but the permit was issued to him after a month. The averments made in the rejoinder affidavit are fully supported by photostat copies of the relevant documents and these averments give a lie to the statement made in the counter affidavit. 10. From the facts and circumstances indicated above, it is plain and clear that the petitioners auto rickshaw was seized by the Officer Incharge, Chowk P.S. without following the provisions of law and the vehicle was kept in detention for over a year and a half til! it was inspected by the Motor Vehicle Inspector in a highly illegal,, arbitrary and unreasonable manner. 11. Section 136 of the Motor Vehicles Act provides as follows: "136. it was inspected by the Motor Vehicle Inspector in a highly illegal,, arbitrary and unreasonable manner. 11. Section 136 of the Motor Vehicles Act provides as follows: "136. Inspection of vehicle involvea in accident.When any accident occurs in which a motor vehicle is involved, any person authorised in this behalf by the State Government may, on production if so required of his authority, inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination. "Provided that the place to which the vehicle is so removed shall be intimated to the owner of the vehicle and the vehicle shall be returned after completion of the formalities to the owner, driver or the person in-charge of the vehicle within twenty-four hours." 12. It may be noted here that the proviso to the section stipulating the return of the vehicle within twenty four hours was incorporated with effect from 14.11.1994 by Act 54 of 1994. The intendment is quite clear that the vehicle must be returned to its lawful owner, driver or the person incharge without any undue loss of time. Hence, it is futile to contend that the return of the vehicle is envisaged only after completion of the formalities and no time limit is fixed by law for completion of the formalities including inspection of the vehicle. The inspection cannot be delayed for over a year and a half on such fallacious construction of the aforequoted provision. 13. Moreover, the seizure itself was illegal as neither any information was given to the owner nor to the Magistrate as required under rule 25 of the Police Manual. 14. In the facts of this case both the Officer Incharge, Chowk P.S. posted there at the material time and the Motor Vehicles Inspector posted during the relevant period appear to be responsible for the patently arbitrary, illegal and unreasonable act and omission respectively and thereby causing a great loss to the petitioner. 15. Admittedly the vehicle after its seizure lay under the open sky for over a year and a half. According to the petitioner due to long exposure to the elements and cannibalism the vehicle has been reduced to junk and it is now useless. This averment is not denied anywhere in the counter affidavit. 15. Admittedly the vehicle after its seizure lay under the open sky for over a year and a half. According to the petitioner due to long exposure to the elements and cannibalism the vehicle has been reduced to junk and it is now useless. This averment is not denied anywhere in the counter affidavit. Thus, the Officer Incharge, Chowk P.S. and the Motor Vehicle Inspector, Patna are squarely responsible for the material loss of the vehicle sustained by the petitioner. 16. A learned Judge of this court in the case of Umesh Prasad V/s. State of Bihar and Ors., 1994(2) PLJR 769 in similar circumstances held the police officer effecting seizure of the vehicle liable to pay compensation. 17. In a more recent decision in Heera Lal Yadav V/s. State of Bihar, 2004(2) PLJR 541 , another learned Judge of this court considered the question of compensation for a lost tractor under similar circumstances. In Heera Lal Yadav the court also considered the plea of sovereign immunity raised on behalf of the respondents to resist the claim of compensation by the vehicles owner. On examining a number of Supreme Court decisions and analysing the rival contentions the learned Judge came to the conclusion that the respondents were fully liable to pay compensation to the petitioner for the loss of the tractor suffered by him due to their unauthorised, illegal and negligent act. The two earlier decisions of this court in Umesh Prasad and Heera Lal Yadav fully establish the right of the petitioner to receive compensation for the loss of his Auto-rickshaw and the States liability to pay adequate and reasonable compensation for his loss. 18. The next question that arises for consideration is to how the amount of compensation may be determined. 19. It may be recalled here that the Auto-rickshaw was purchased from a bank loan and not by the petitioners own money. During its seizure extending over a period of more than a year and half the petitioner was naturally unable to pay the instalments towards liquidation of the loan. As a result, the over-dues considerably swelled up due to accumulation of interest. This is evident from the banks letter, dated 21.3.2005 issued to the petitioner as the second reminder for the repayment of loan. As a result, the over-dues considerably swelled up due to accumulation of interest. This is evident from the banks letter, dated 21.3.2005 issued to the petitioner as the second reminder for the repayment of loan. In other words, the loss of Auto-rickshaw meant to the petitioner far more than the loss of its actual value since the petitioner is now saddled with the banks dues, far exceeding the actual price of the vehicle. 20. The petitioner in his supplementary affidavit has claimed compensation under two heads, one being the cost of the vehicle, that is, Rs.76,345/- and the other being the loss of earning @ Rs.300A per day, amounting to Rs. 1,75,800/-. 21. On the date the vehicle was seized it was only six months old. Therefore, allowing for depreciation @ 20% for the first year its value would be Rs.68,710/-. Further, if the daily earning from the vehicle is reckoned at the much lower rate of only Rs.50A per day, the petitioners loss of earning for the period of one year and seven months would be about Rs.28,500/-. According to this court, therefore, even on a conservative basis the petitioner is entitled to payment of compensation amounting to Rs.97,210.50. 22. Since it is held that both ther Officer Incharge, Chowk P.S. and the Motor Vehicles Inspector, Patna are equally responsible for the loss, it is evident that the two Government Departments are liable to shoulder the payment of compensation. In that view the Chief Secretary to the Government is directed to make arrangement for payment of the aforesaid amount to the petitioner within eight weeks from the date of receipt/production of a copy of this order in his office. It would be open to him to apportion the amount between the two departments and also to fix individual responsibilities for taking suitable action. But at all that must not delay the payment of compensation amount to the petitioner within the time as directed. 23. In the result, this writ petition is allowed.