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Madras High Court · body

2010 DIGILAW 1783 (MAD)

M. Duraisamy v. K. Balakrishnan

2010-04-15

S.MANIKUMAR

body2010
Judgment :- 1. Being aggrieved by the finding, fastening liability on the Appellant, the present Appeal is filed. The Second Respondent, who has alleged to have purchased the vehicle, has remained ex-parte before the Tribunal. Though both the Respondents have been served and their names were also shown in the cause list, there is no appearance on their behalf, either in person or through the counsel. Thus, even before this Court, there is no appearance on their behalf. Therefore, this Court has decided to dispose of the appeal on merits. 2. In an accident, which occurred on 19.01.2001, the first Respondent/claimant sustained compound facture of left tibia and fibula and trochanteric fracture in left hip. Plates were fitted to fuse the fractured bones. He claimed compensation of Rs.2,00,000/-. The offending vehicle was not insured on the date of accident. Therefore, the injured has claimed compensation as against the Appellant and the Second Respondent. 3. The Second Respondent, in his Counter Affidavit has denied the accident. He further submitted that the Claim Petition ought to have been dismissed for non-joinder of the Insurance Company of the vehicle TVS-50 XL bearing Registration No.TN-37-U-3070, in which, the Respondent/claimant traveled. He further submitted that the accident took place due to the negligent driving of the Respondent/claimant. However, at Paragraph 7, he has admitted that he has purchased the motorcycle, bearing Registration No.TAP-5378 from the Appellant, Mr. Duraisamy on 13.08.2001 and nevertheless, contended that he cannot be made responsible to pay compensation. 4. Per contra, before the Tribunal, the Appellant herein has submitted that prior to the date of accident, i.e., on 13.08.2001, he had sold his TVS Suzuki Motor Cycle bearing Registration No.TAP-5378 to Mr. R. Manoharan (Second Respondent in this appeal) with specific instructions, to effect name transfer, immediately in the records that are maintained by the Regional Transport Authority and also to take insurance coverage for the vehicle before effecting name transfer. According to him, the vehicle was taken possession by the Second Respondent on the same day and in this regard, a delivery note was also issued. He further submitted that the accident had occurred on 19.08.2001 and therefore, having sold the vehicle on 13.08.2001, much earlier to the date of accident, he cannot be held responsible. 5. Without prejudice to the above contentions, both the Respondents before the Tribunal, has disputed the quantum of compensation under various heads. 6. He further submitted that the accident had occurred on 19.08.2001 and therefore, having sold the vehicle on 13.08.2001, much earlier to the date of accident, he cannot be held responsible. 5. Without prejudice to the above contentions, both the Respondents before the Tribunal, has disputed the quantum of compensation under various heads. 6. Before the Tribunal, the first Respondent/claimant examined himself as PW.1 and PW2, is the Doctor, who examined the Respondent/claimant with reference to medical records. Ex.P1-FIR, Ex.P2-Sketch, Exs.P3 and P4-Motor Vehicle Inspectors’ report, Ex.P5-Charge Sheet, Ex.P6 is the proof for payment of fine by Mr. R. Manoharan (Second Respondent in this Appeal), Ex.P7-Wound Certificate, Ex.P8-Discharge Summary from G.R. Hospital, Ex.P9-Medical Bills, Ex.P10-X-Rays (series), Ex.P11-Medical Bills from G.R. Hospital, Ex.P12-Medical Bills issued by K.G. Hospital, Ex.P13-Medical Bills towards fee paid to the Orthopadiecian, Ex.P14-Discharge Summary of ESI Hospital, Ex.P15-Medical Bills for Eye surgery, Ex.P16-Learner’s licence, Ex.P-17-Salary Certificate, Ex.P18-Leave Certificate, Ex.P19-X-Ray, Ex.P20-Disability Certificate and Ex.P21-Certificate issued by the Doctor for future medical expenses were marked on behalf of the first Respondent/claimant. The Appellant examined himself as RW.1 and he has produced Ex.R1-Delivery Note, dated 13.08.2001. 7. The Tribunal, having regard to the oral and documentary evidence let in by the parties, held that the accident has occurred due to the fault of the first Respondent. The findings of the Tribunal regarding negligence is duly corroborated by Exs.P1 to P6. Having regard to the fact that the first Respondent himself has admitted the guilt and paid the fine amount, the Tribunal has held that he was responsible for the accident. As regards the liability to pay compensation, though the Appellant has produced Ex.R1-Delivery Note, dated 13.08.2001, to prove that the vehicle was sold prior to the date of accident, dated 19.08.2001 and inter alia contended that because of the fault of the transferee in getting the name of the ownership transferred in the Registration Certificate and the records maintained in the Transport department, the liability cannot be fastened on him, the Tribunal has disagreed with the said contentions on the ground that Ex.R1-Delivery Note itself has not been proved and therefore, held that both the transferor and the transferee, as liable to pay compensation. 8. Assailing the correctness of the award, holding the Appellant as responsible for the accident and to pay compensation, Mrs. 8. Assailing the correctness of the award, holding the Appellant as responsible for the accident and to pay compensation, Mrs. Mythili Suresh, learned counsel for the Appellant submitted that the Tribunal has erred in overlooking the categorical admission on the part of the Second Respondent in his counter affidavit that he had sold the vehicle on 13.08.2001 itself. She further submitted that the Tribunal has completely misconstrued Ex.R1, on the ground that the signature of the Second Respondent in the delivery note, has not been established and therefore, failed to give credence to the document. 9. Learned counsel for the Appellant further submitted that merely because, the Second Respondent did not take effective steps for change of name in the registration certificate, within the stipulated time, as per the provisions of the Motor Vehicles Act, that will not fasten any liability on the vendor, as change of registration of the vehicle, in the name of the transferee, is not a condition precedent, for completing the sale, as Ex.R1 is very clear and therefore, the Claims Tribunal ought to have held that the Second Respondent alone is solely liable to compensate the victim and on the other hand, the Tribunal has committed an error in holding that both the transferor and transferee are jointly liable to pay compensation. In this context, she also relied on the decisions of the Supreme Court in Panna Lal v. Shri Chand Mal and others, 1980 ACJ 233 and Anand Sarup Sharma v. P.P. Khurana, 1989 ACJ 577 . Heard the learned counsel for the Appellant and perused the materials available on record. 10. Perusal of the impugned judgment shows that the accident has occurred on 19.08.2001 and that the Respondent has sustained serious injuries as stated supra. Pleadings disclose that he was hospitalized from 19.08.2001 to 30.08.2001 in Coimbatore Medical College Hospital, Coimbatore, and thereafter, took treatment at G.R. Hospital, Udayampalayam, in different spells from 20.08.2001 to 27.08.2001 and 04.09.2001 to 15.09.2001 respectively. Again, he took treatment, for the fracture in ESI Hospital from 27.08.2001 to 03.09.2001 and also from 01.10.2001 to 05.10.2001. The documentary evidence produced before the Tribunal shows that he has incurred medical expenses. Therefore, the contention of the Respondent that he had sustained grievous injuries and incurred medical expenses, are proved. 11. Again, he took treatment, for the fracture in ESI Hospital from 27.08.2001 to 03.09.2001 and also from 01.10.2001 to 05.10.2001. The documentary evidence produced before the Tribunal shows that he has incurred medical expenses. Therefore, the contention of the Respondent that he had sustained grievous injuries and incurred medical expenses, are proved. 11. As the vehicle was not covered by Insurance Policy on 19.08.2001, the date of accident, the Appellant, Vendor and the Second Respondent, transferee, before the Tribunal, have denied their liability. The fact that the Second Respondent against whom, Ex.P5-Charge Sheet has been laid and payment of fine by him, as per Ex.P6, is not disputed and that the findings recorded by the Tribunal against the Second Respondent, is also not challenged. Therefore, from the perusal of the judgment and the documentary evidence, it is explicit that negligence fixed on the Second Respondent is proper. However, the Appellant, Vendor, has also been made liable to pay compensation. 12. Section 2(30) of the Motor Vehicles Act defines “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.” 13. Section 50 of he Motor Vehicles Act deals with registration. Section 50 of he Motor Vehicles Act deals with registration. As per Section 50 (1)(a), 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; (ii) in the case of a vehicle registered outside the State, within forty-five days of the transfer, forward to the Registering Authority referred to in sub-clause (i) – (A) the No Objection Certificate obtained under Section 48; or (B) in a case where no such certificate has been obtained, - (I) the receipt obtained under sub-section (2) of Section 48; or (II) the postal acknowledgement received by the transferor if he has sent an Application in this behalf by Registered Post Acknowledgement due to the Registering Authority referred to in Section 48, Together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;” 14. As per Section 50(1)(b) of the Act, 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. 15. Sub-sections (6) and (7) of Section 50 of the Motor Vehicles Act are as follows: “(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.” 16. (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.” 16. In Panna Lal v. Shri Chand Mal, 1980 ACJ 233, a suit was filed for recovery of Rs.6,800/-. One Mr. Manak Chand, was the owner of a lorry bearing Registration No.AJM-455 and he had a route permit in his name. On 17th February, 1956 Manak Chand sold the route permit and the lorry to Lalchand and Tarachand for a sum of Rs.4,251/-. Subsequently, the purchasers Lalchand and Tarachand, original defendants, sold the lorry to the plaintiff on 24th, December, 1956. The findings of facts recorded by the Courts below were that after the sale both by Manak Chand to Lalchand and Tarachand and by Lalchand and Tarachand to the plaintiff, the lorry and the registration paper thereof were delivered to the purchaser and thus, title was passed on to him. As the plaintiff did not choose to move the Registering Authority for transfer of registration of the lorry in his name, the name of the original owner, Manak Chand continued to remain in the papers of the Registering Authority under the Motor Vehicles Act. The plaintiff issued notices both to Manak Chand, and Lalchand and Tarachand, for taking steps for transferring the registration in his name in view of the purchase of the lorry by him. Despite these notices, no action was taken. Hence the plaintiff filed a Suit for recovery of the amount of Rs.5,000/- which was paid by the plaintiff for the purchase of lorry from Lal Chand and Tara Chand, defendants therein and claimed Rs.1,800/- as interest on that amount by way of damages. The short point raised by the plaintiff before the Supreme Court was that as neither Manak Chand nor Lalchand and Tarachand took any steps to transfer the registration in the name of the plaintiff before the Registering Authority, the sale was ineffective and it amounted to only for an agreement to sell. The Supreme disagreed with the submissions of the plaintiff and after considering the statutory provisions in the Motor Vehicles Act, relating to transfer of ownership, at Paragraph 3, held as follows: “3. The Supreme disagreed with the submissions of the plaintiff and after considering the statutory provisions in the Motor Vehicles Act, relating to transfer of ownership, at Paragraph 3, held as follows: “3. Under the provisions of this Section, the transfer of ownership is permitted but the statute casts an obligation on the transferee to report to the Registering Authority concerned regarding the transfer of the vehicle along with a certificate of registration and then get the registration transferred in his name. It was therefore the duty of the plaintiff to have applied to the Registering Authority under Section 31 of the Motor Vehicles Act and got the registration transferred in his name. It has been found by the Courts below that all the registration papers as also the memo of sale were handed over to the plaintiff. In these circumstances therefore if the plaintiff did not choose to move the Registering Authority, he cannot be heard to say that he is entitled for refund of the purchase money or claim damages. The decisions of the Courts below are therefore correct and do not warrant any interference by this Court.” 17. In Anand Sarup Sharma v. P.P. Khurana and others, 1989 ACJ 577 , a Full Bench of the Delhi High Court considered a case, as to whether registration of the vehicle in the name of the transferee is a condition precedent for completing the sale. The Court held that provisions of Sections 22 and 31 of the Motor Vehicles Act, do not have the effect of postponing the transfer of the property from seller to buyer, till the vehicle is registered in the name of the buyer. In the case on hand, Ex.R1 – Delivery Note submitted by the Appellant has not been accepted on the ground that the Appellant has not placed any other materials to prove the signature of the purchaser. Upon perusal of Exs.P4 and P5, Motor Vehicles Inspectors’ report, the Tribunal has observed the ownership of the vehicle, still remained in the name of the Appellant. Therefore, the Tribunal has observed that both the Appellant as well as the Second Respondent are trying to evade payment of compensation to the first Respondent-victim and accordingly, held both of them as liable to pay compensation. 18. In Dr. T.V. Jose v. Chacko, P.M., AIR 2001 SC 3939 , the Appellant was the original owner. Therefore, the Tribunal has observed that both the Appellant as well as the Second Respondent are trying to evade payment of compensation to the first Respondent-victim and accordingly, held both of them as liable to pay compensation. 18. In Dr. T.V. Jose v. Chacko, P.M., AIR 2001 SC 3939 , the Appellant was the original owner. A car bearing No. KLO 4828, driven by the 1st Respondent therein, met with an accident on 9th April, 1987. One of the Passengers viz., Anthony Alexander was seriously injured in that accident and thereafter succumbed to the injuries on 10th April,, 1987. Respondents 1 to 6 therein were the legal representatives of the said Anthony Alexander. Before the Claims Tribunal, the Appellant claimed that he had sold the car, on 7th May, 1986, to one Smt. M.K. Bhavani. It was claimed that Smt. Bhavani had thereafter sold the car, on 12th May, 1986, to Sh. Aboobacker. It was further claimed that on 15th August, 1986, Sh. Aboobacker had sold the car to one George Mathew and he thereafter, sold the car to one Roy Thomas on 18th August, 1986. The Appellant before the Supreme Court claimed that on the date of the accident, the car belonged to Roy Thomas and it was an admitted position that the transfer of ownership of the car was never intimated to the R.T.O. and that in the records of R.T.O., the name of the Appellant continued to be shown as the owner. Before the Tribunal, the Appellant claimed that he had not taken out the Insurance Policy. The 1st Respondent before the MACT claimed that the real owner was the Appellant. The Tribunal held that the Appellant was not the owner of the car and therefore, not liable to pay compensation. It has further held that the Insurance Company was also not liable, as the Policy had been issued in the name of the Appellant therein and when he was not the real owner, when the accident occurred. It further held that the driver was rash and negligent and therefore, responsible for the accident, and bound to pay compensation to the claimants. The first Respondent before the Claims Tribunal, driver and the claimants, filed Appeals before the High Court. It further held that the driver was rash and negligent and therefore, responsible for the accident, and bound to pay compensation to the claimants. The first Respondent before the Claims Tribunal, driver and the claimants, filed Appeals before the High Court. The High Court held that all the documents disclosed the Appellant before the Apex Court to be the owner of the car and therefore, liable to pay compensation to the claimants. The High Court further confirmed the finding that the driver had been rash and negligent and caused the accident. Before the Apex Court, learned counsel for the Appellant submitted that the High Court has erred in ignoring the oral evidence, which clearly showed that the Appellant was not the owner of the car on the date of accident. It was further contended that merely because the name had not been changed in the records of R.T.O., that does not mean that the ownership of the vehicle had not been transferred. It was pointed out before the Supreme Court that the real owner of the car was Mr. Roy Thomas, who purchased the vehicle on 18.06.1986 and that when the accident occurred on 18th August, 1987, he should have been held liable to pay the compensation. It was also pointed that Mr. Roy Thomas has not chosen to appear in the Appeals. While agreeing with the contentions of the learned counsel for the Appellant therein, the Supreme Court, at Paragraph 10, held as follows: “10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However, the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to do so.” 19. In yet another decision in S.N. Shanmugam v. Shankarlal Jain, 2004 (1) TN MAC 543 (DB) : 2003 (1) CTC 211 : 2003 (2) LW 126 : AIR 2003 Mad 183 , a Division Bench of this Court has considered a similar issue, where the Motor Vehicle met with an accident and caused injuries. The claimant impleaded the first Respondent-Sankarlal Jain, as owner of the motor cycle. The first Respondent therein filed a counter affidavit, contending inter alia that on the date of accident, namely 26.1.1995, he was not the owner of the vehicle nor he had caused the accident. He further stated that he had sold the motor cycle to one Sundaramoorthy, who is said to have caused the accident. Based on the said information, the said R. Sundaramoorthy, was impleaded as the Second Respondent in the Claim Petition. According to the Second Respondent, he had purchased the vehicle only on 15.1.1995. The accident was caused by some other person and therefore, he was not liable to pay compensation. The Tribunal, on evaluation of pleadings and evidence, dismissed the Claim Petition against Shankarlal Jain and directed the Second Respondent therein, the purchaser to pay the quantum of compensation determined by the Tribunal. Questioning the said direction and the dismissal of the Claim Petition against the Shankarlal, original owner, the injured filed an Appeal before this Court. After considering the judgment of the Supreme Court in Dr. T.V. Jose’s case (cited supra) and other decisions, the Division Bench, set aside the findings of the Tribunal and held that Shankarlal, the original owner, is also liable to pay compensation. In all other respects, the Division Bench confirmed the decision of the Tribunal. 20. In Thangaraj v. Ameer Hussain, 2009 (2) TN MAC 392 : AIR 2010 Mad. 13 , the accident, which occurred on 7.3.1993. In all other respects, the Division Bench confirmed the decision of the Tribunal. 20. In Thangaraj v. Ameer Hussain, 2009 (2) TN MAC 392 : AIR 2010 Mad. 13 , the accident, which occurred on 7.3.1993. The injured claimed compensation against the scooterist and the registered owner of the vehicle, Second Respondent, who resisted the claim, stating that on 16.2.1987 itself, he had sold the said vehicle to one Kathirvel So. Krishnan and handed over possession of the vehicle to him. Subsequent to the filing of the counter by the Second Respondent therein, the said Kathirvel was also impleaded as third Respondent in the Claim Petition. An amended Claim Petition was also filed impleading the third Respondent, as one of the Respondents. Though notice was served, both the first and third Respondent remained ex parte in the Tribunal. Upon evaluation of pleadings and evidence, the Tribunal held that the ridder of the Scooterist and the subsequent purchaser alone were liable to pay compensation. Testing the correctness of the judgment, in the light of the decision of the Supreme Court stated supra, The Hon’ble Mr. Justice T. Sudanthiram has held that, - “the Respondents 1 to 3 herein are jointly and severally liable to pay the compensation amount as awarded by the Tribunal. In case the compensation amount is either deposited or collected from the Second Respondent herein, he is entitled to recover that amount from the third Respondent herein by filing Execution Petition in the same proceedings.” 21. In view of the subsequent decision of the Supreme Court in Dr. T.V. Jose’s case and this Court in Thangavel’s case, the decisions relied on by the learned counsel for the Appellant would not lead any support to the contention of the Appellant. Hence, the judgment of the Tribunal, holding the Appellant as well as the third Respondent as liable to pay compensation to a third party-victim, cannot be said to be manifestly illegal. 22. Hence, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.