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2011 DIGILAW 261 (CHH)

KAMLA GUPTA v. VIJAYKUMARAGRAWAL

2011-08-01

G.MINHAJUDDIN, I.M.QUDDUSI

body2011
ORDER As per Hon'ble Shri I.M. Quddusi, J. :- 1. Since both these appeals arise out of Claim Case No. 49/2003 in which award dated 26.02.2004 has been passed by the 151 Addl. Motor Accidents Claims Tribunal, Ambikapur, District Sarguja, they are being disposed of by this common order. M.A.No.473/2004 has been filed by the claimants for enhancement of the quantum whereas M.A. No. 694/2004 has been filed by possession holder of the vehicle against fastening 1/3rd part of liability upon him as also quantum fixed by the Tribunal. 2. In M.A.No.694/ 2004, cross appeal has been filed by the Insurance Company with the delay 0£2083 days. Therefore, l.A.No.2, an application for condonation of delay has been filed. Since the liability and quantum were challenged in the cross appeal, the said application is allowed and delay in filing the cross objections is condoned. 3. Brief facts of the case, as per the version of the claimants, are that' on 27.12.2002 deceased Pradeep Kumar Gupta (a Govt. Servant) was going to Pathalgaon from Sitapur by motorcycle bearing Regn.No.CG.15-C/1393 alongwith his friend Majhar Husain. On the way, one Tractor bearing Regn.No.27B/5034 & Trolley No.27-B/5035 which was being driven by non-applicant no. 2 Budhiyar Sai Gond in a rash and negligent manner dashed the motorcycle from back side and Pradeep Gupta fell down and the wheel of the Tractor ran over him, as a result of which the deceased died. At the time of accident, the deceased was 38 years; he was working as Regional Officer in Govt. Veterinary Department and was drawing a monthly salary of Rs.9406/-. The claimants being legal representatives/dependents of the deceased have filed Claim Petition u/s 166 of the Motor Vehicles Act for the award of total compensation of Rs.34,08,928/- on various heads. 4. Learned Claims Tribunal has held that• the Tractor-Trolley was involved in the accident in which deceased died; there was no breach of policy conditions; the driver was holding valid and effective driving license to drive the Tractor-Trolley and contributory negligence was not proved. Having thus held, it has awarded a total compensation of Rs. 10 lakhs which the claimants are entitled to receive from non-applicants 1 to 3 jointly and severally and exonerated non-applicants 4 to 8, who were the registered owners of the Tractor Trolley. Having thus held, it has awarded a total compensation of Rs. 10 lakhs which the claimants are entitled to receive from non-applicants 1 to 3 jointly and severally and exonerated non-applicants 4 to 8, who were the registered owners of the Tractor Trolley. The Tribunal has imposed 1/3rd liability upon non-applicant No. I Vijay Kumar (appellant in M.A.No.694/2004), so called purchaser of the Tractor Trolley and the remaining 2/3rd liability upon the insurance company as well as driver Budhiyar Sai. 5. Admittedly, the Tractor-Trolley which was involved in the accident was purchased under LR.D.P. Scheme through Bank finance by non-applicants 4 to 8 who sold the same to non-applicant no. I Vijay Kumar. However, there was no transfer of ownership in favour of Vijay Kumar Agrawal. 6. In sub-section 30 of section 2 of the Motor Vehicles Act, the word 'owner' has been defined as under: "Owner" means a person in whose name a motor vehicle 5.tands registered, and where such person is 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; 7. Section 157 of the Act provides transfer of certificate of insurance in the name of the new owner. Sub-section (1) & (2) of Section 157 reads as under: "(I) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person, to whom the motor vehicle is transferred with effect from the date of its transfer. Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. (2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance." 8. The fact remains that on the date of accident, there was no transfer of ownership in favour of Vijay Kumar Agrawal, appellant in M.A. No. 694/ 2004 and he was only a possession holder of the vehicle. Unless the vehicle is transferred in the name of new owner, there is no question of transfer of insurance policy. Without registering a person as owner, the insurance policy cannot be transferred and even if the possession holder of the Tractor has requested the Insurance Company in writing to enter his name in place of owner, it could not have entered his name as he was not the registered owner of the vehicle and the ownership was not transferred in the RC. Further the appellant who is possession holder of the Tractor cannot be held to be liable for payment of compensation as in the Motor Vehicles Act, no third person can be held liable to pay compensation. The compensation can be paid only either by the owner that is insured or the insurer, as the case may be, and not the third party. 9. Attention of this Court has been drawn regarding the sale letter in favour of possession holder of the Tractor but in that sale letter, the authorization to get the name transferred has been made by the owner only after repayment of the entire loan amount to the Bank as the Tractor was financed by the Bank under the Scheme and the owners were not in a position to pay the installments. Therefore, the condition mentioned in the sale letter for becoming the owner will be effective after repayment of the entire loan amount. Hence, in view of the sale letter also, the possession holder of the Tractor cannot be said to be the owner of the vehicle. Therefore, the condition mentioned in the sale letter for becoming the owner will be effective after repayment of the entire loan amount. Hence, in view of the sale letter also, the possession holder of the Tractor cannot be said to be the owner of the vehicle. The ownership cannot be claimed without there being any authority which was not granted by the owners of the vehicle in question till repayment of the entire loan amount. 10. In this regard, Hon'ble the Supreme Court in case of Pushpa alias Leela and others Vs. Shakuntala and others, following the ratio laid down in T V. Jose (Dr.) Vs. Chacko PM has held in Para 14 that "the inescapable conclusions is that a person (Jitendra Gupta) whose name continued in the records of the registering authority as the owner of the vehicle was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the vehicle was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd." 11. In the above facts and circumstances of the case, the appeal filed by the appellant Vijay Kumar is allowed. The cross objections filed by the Insurance Company is also allowed in part. At this stage, learned counsel for the Insurance Company has raised contention that the Tribunal has not properly decided the issue of contributory negligence and has not conducted any enquiry to ascertain the truth. Since no enquiry was conducted by the Tribunal as provided in Sections 168 & 169 of the Motor Vehicles Act and Rule 226 of the C.G. Motor Vehicles Rules, 1994, we are of the opinion that the matter requires reconsideration at the end of Tribunal. 12. Therefore, we remit the matter back to the Tribunal for decision afresh in the light of the above observations. The Tribunal shall conduct an enquiry and summon the police record to ascertain the truth regarding contributory negligence on the part of deceased, if any. 13. Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file the documents or get the documents verified etc and thereafter the decision shall be taken afresh at the earliest as the matter relates to the year 2003. The records of the Tribunal shall be sent back without further delay. 13. Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file the documents or get the documents verified etc and thereafter the decision shall be taken afresh at the earliest as the matter relates to the year 2003. The records of the Tribunal shall be sent back without further delay. The parties shall appear before the Tribunal on 06th of September, 2011. 14. Since the matter is remitted back to the Tribunal, M.A.No.473/2004 filed by the claimants has become infructuous. However, it will be open to the claimants as also the Insurance Company to press the prayer of quantum before the Tribunal. 15. In the result, M.A. No.694/2004 is allowed; cross objections filed by the Insurance Company are also allowed in part and M.A.No. 47312004 stands disposed of in view of the direction for remittal of the matter. No order as to cost(s). Appeal Allowed.