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2007 DIGILAW 371 (MP)

Brijlal Khilwani v. Sohan @ Sanu Narwaria

2007-03-29

A.K.MISHRA, K.S.CHAUHAN

body2007
ORDER Mishra, J. -- 1. This appeal has been preferred by appellant-registered owner challenging the saddling of liability to pay the compensation though the vehicle stood transferred to respondent No.1 Sohan @ Sanu Narwaria. The Tribunal has awarded compensation of Rs.1,11,500/- alongwith interest @ 12% per annum from the date of filing of application till realization. 2. Facts, shorn of unnecessary details, indicate that Sitaram (since deceased) was going to the market from the bus stand in order to supply milk. Saleem Shah drove truck No. MP-11/A-0829 rashly and negligently and dashed Sitaram, who sustained injuries and died. It was claimed that he used to earn Rs.150/- per day, besides having agricultural income. His monthly income was Rs.7,000/-. Compensation of Rs.12,60,000/- was claimed. Driver Saleem Shah was proceeded ex parte. Brijlal Khilwani, registered owner of the truck, took the stand that the real owner of the vehicle was Sohan @ Sanu Narwaria. The truck was sold to him prior to the date of accident. Possession of the truck was with Sohan @ Sanu Narwaria. He had obtained the custody of the truck from the Court. It was submitted that excessive amount was claimed and as the vehicle stood transferred, he was not liable to pay the compensation. It was further contended that on 17.9.1998, an agreement was entered into between appellant and respondent No.1, for sale of the truck for Rs.1,15,000/-. Sum of Rs.50,000/- was paid to him and remaining amount was to be paid in 18 equal monthly instalments. Said amount was not paid. 3. Sohan @ Sanu Narwaria, in his written statement, inter alia contended that he was not aware who the registered owner of the vehicle was. He was not in possession of the truck. Saleem Shah was not his driver. Excessive compensation was claimed. Truck was not transferred to him. He was unnecessarily impleaded. As the truck was not in his possession, he was not liable to pay the compensation. 4. The Claims Tribunal has found that accident had occurred on account of rash and negligent driving of truck by Saleem Shah. The registered owner of the truck was Brijlal Khilwani, though truck was agreed to be sold to Sohan @ Sanu Narwaria on 17.9.1998, and at his instance Saleem Shah was driving the truck. As complete ownership was not transferred, registered owner has been held liable to make the payment of compensation. 5. The registered owner of the truck was Brijlal Khilwani, though truck was agreed to be sold to Sohan @ Sanu Narwaria on 17.9.1998, and at his instance Saleem Shah was driving the truck. As complete ownership was not transferred, registered owner has been held liable to make the payment of compensation. 5. Registered owner has come up in this appeal assailing the liability imposed by the Tribunal. 6. Shri Anil Lala, learned counsel appearing for appellant, has submitted that the complete control over the truck, in question, alongwith possession was that of Sohan @ Sanu Narwaria. He had paid a sum of Rs.50,000/- and obtained the possession of the truck before one month of the accident. Agreement was entered into ort 17.9.1998, and accident took place on 23.10.1998. Thus, Sohan @ Sanu Narwaria was the owner as contemplated under section 2(30) of the Motor Vehicles Act, 1988. Thus, he has submitted that liability ought to have been saddled on Sohan @ Sanu Narwaria and driver Saleem Shah. 7. Shri Deepak Pendharkar has submitted that as transfer was not completed ultimately, due to non-payment of instalments, liability of registered owner continues. Hence, no case for interference in this appeal is made out. 8. Section 2(30) of the Motor Vehicles Act, 1988, defines 'owner' as under : " '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." 9. No doubt about it, that Brijlal was the registered owner. However, NAW 1 Brijlal has stated that after payment of a sum of Rs.50,000/-, possession of the truck was handed over to Sohan @ Sanu Narwaria. He has also admitted in para 7 of his cross-examination that he had applied to the Court of CJM, for obtaining supurdgi of the vehicle. He got the truck released not due to the fact that he was the owner, but he had made payment of Rs.50,000/-. Thus, the execution of the agreement (Ex.D-1) is not in dispute. A reading of the agreement (Ex.D-1) goes to indicate that truck was agreed to be sold for a sum of Rs.1,15,000/-, in total. Sum of Rs.50,000/- was paid. Thus, the execution of the agreement (Ex.D-1) is not in dispute. A reading of the agreement (Ex.D-1) goes to indicate that truck was agreed to be sold for a sum of Rs.1,15,000/-, in total. Sum of Rs.50,000/- was paid. Remaining amount was required to be paid in eighteen instalments of Rs.4,200/-. It is also mentioned in para 1, that possession was handed over to Sohan @ Sanu Narwaria, on the date of entering into the said agreement and liability upto 17.9.1998 would be that of seller for any motor accident. Thereafter, if any accident takes place, liability would be that of purchaser. 10. In the matter of Rajasthan State Road Transport Corporation v. Kailash Nath Kothari and others [ AIR 1997 SC 3444 ], apex Court has laid down that when bus is plied on hire by Rajasthan State Road Transport Corporation, it cannot escape liability to make payment of compensation. The apex Court has thus held in para 17 : "17. The definition of owner under section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the "owner" is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. Shri Sanjay Kumar was, therefore, not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety, therefore, became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is the person who had the right to hire and fire the employee, is generally responsible vicariousy for the tort committed by the concerned employee during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the concerned employee in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the pay roll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC." 11. Learned counsel for the appellant has relied upon decision in the case of State of Madhya Pradesh and another v. Chatru Lal, reported in 1994(2) ACC 344= 1995 ACJ 533 , wherein it was held that person in possession of vehicle under an agreement may also be treated as owner of the vehicle. 12. In the facts and circumstances of the case, Sohan @ Sanu Narwaria's submission that possession was not handed over could not be relied upon, as he had obtained the custody of the vehicle and vehicle was plied on his behalf by driver Saleem Shah. He had paid a sum of Rs.50,000/- towards the consideration and was utilizing income of the truck. As per agreement, liability was put on the purchaser after the date of agreement. 13. In view of the aforesaid, we find that the finding of the Claims Tribunal that Brijlal Khilwani being registered owner was liable to pay the compensation cannot be allowed to sustain. Same is hereby set aside. 14. Liability is held to be of driver Saleem Shah and Sohan @ Sanu Narwaria, who was in possession and control of the vehicle, under the agreement (Ex.D-1), at the time of the accident. 15. In view of the above, we find that with respect to liability, the decision of the Tribunal requires to be modified. Liability is held to be of Sohan @ Sanu Narwaria and driver Saleem Shah, who was driving the vehicle at the time of accident, as found by the Claims Tribunal at the behest of Sohan @ Sanu Narwaria. 16. Appeal is accordingly allowed to the aforesaid extent. No order as to costs.