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2014 DIGILAW 106 (CHH)

Goodwill Tractors v. Mokhan Bai Bhandari

2014-03-06

PRITINKER DIWAKER

body2014
ORDER : PRITINKER DIWAKER, J. 1. Aggrieved by the award dated 31.12.2008 passed by the Additional Motor Accident Claims Tribunal (FTC), Balod, Distt. Dury (hereinafter referred to as "the Tribunal") in claim case No. 4/08 awarding compensation of Rs. 2,05,400/- in favour of the claimants fastening the liability upon the appellant, this appeal has been preferred by the appellant-dealer of Swaraj Tractor and Spare Parts. Facts of the case, in brief, are that on 1.11.2007 when Narendra Kumar sitting in the trolley attached to the tractor, he fell down from the said trolley due to rash and negligent injuries and ultimately succumbed to the same. 2. A claim case filed by the claimant for compensation of Rs. 7.42 lacs under various heads against the death of Narendra Kumar. In the claim petition, the appellant-Good Will Tractor was impleaded as non-applicant No. 2, inter alia, pleading that the tractor in question was purchased by Pingal Bilsariya (respondent No. 7 herein) from the appellant, who was dealer of Swaraj Tractor involved in the case. 3. Respondent No. 7 Pingal contested the claim on the ground that the tractor in question was purchased by him on 15.10.2007 through finance from the appellant and payment towards insurance and registration was also made to the appellant and therefore, it is the duty of the appellant to pay compensation. 4. The appellant also filed its written statement with the averments that the tractor and trolley were sold to respondent No. 7 Pingal Belsariya on 15.10.2007 and possession was also given to him on the same date and therefore, it is respondent No. 7 who was owner and possession holder of the vehicle in question. It has been denied by the appellant that the tractor and trolley were given to respondent No. 7 for demonstration. According to the appellant, a sum of Rs. 4 lacs was also received by the company through bank draft towards down payment and it was agreed by respondent No. 7 to pay the remaining amount subsequently. It has also been pleaded that further amount of Rs. 1 lacs was paid by respondent No. 7 on 10.1.2008 and Rs. 85,000/- is remaining. The appellant also pleaded that after taking delivery of the vehicle, the same was under the overall control of respondent No. 7 and he was using the said vehicle. It has also been pleaded that further amount of Rs. 1 lacs was paid by respondent No. 7 on 10.1.2008 and Rs. 85,000/- is remaining. The appellant also pleaded that after taking delivery of the vehicle, the same was under the overall control of respondent No. 7 and he was using the said vehicle. According to the appellant, he was unnecessarily impleaded in the claim case as non-applicant. 5. By the impugned award, the Tribunal has recorded a finding that the vehicle in question was given to respondent No. 7 for demonstration purposes and as the same was not registered in the name of respondent No. 7, it is the appellant who continued to be the owner of the vehicle. In para. 16(1) there appears to be some typographical error where it has been mentioned by the Tribunal that applicant No. 2 would pay the amount of compensation to the claimants whereas it should have been non-applicant to the claimants. However, this Court proceeds to decide this appeal considering the wordings of the entire award wherein liability to satisfy the award has been fastened upon the appellant. 6. Learned counsel appearing for the parties submit that ignoring the typographical error in para. 16 of the impugned award, the appeal may be decided considering that liability has been fastened upon the appellant by the Tribunal. 7. Learned counsel for the appellant submits as under: (i) That the tractor and trolley were purchased by respondent No. 7 herein after making down payment of Rs. 4 lacs on 15.10.2007 and remaining amount of Rs. 1 lacs on 7.1.2008. (ii) That the vehicle Delivery Challan was also issued on 15.10.2007 by the appellant showing that fact as to under what heads the amount was received by the appellant. According to it, the amount paid by respondent No. 7 was for the tractor, trolley, cultivator and cogwheel and no amount for registration or insurance of the vehicle was paid by respondent No. 7. (iii) That there is no evidence to shown that any amount was paid by respondent No. 7 towards insurance or registration and once the vehicle has been taken out from the showroom of the appellant, the appellant can not be held liable for any untoward accident, which unfortunately took place on 1.11.2007. (iii) That there is no evidence to shown that any amount was paid by respondent No. 7 towards insurance or registration and once the vehicle has been taken out from the showroom of the appellant, the appellant can not be held liable for any untoward accident, which unfortunately took place on 1.11.2007. (iv) That it was the duty of respondent No. 7 to get the vehicle insured immediately after taking delivery of the same on 15.10.2007 and if the vehicle was being used by respondent No. 7 without getting the same registered and insured, then respondent No. 7 has to blame himself for the lapses on his part; (v) That as per seizure memo Ex. P/5, on 3.11.2007 i.e. after two days of the accident, respondent No. 7 got the vehicle insured and this fact proves that the vehicle in question was under the overall control of respondent No. 7 and it was his duty to get the same insured in time; (vi) That respondent No. 7 being owner of the vehicle took the vehicle on Supurdnama on 13.12.2007 vide Ex. P/7 and this also makes it clear that the vehicle in question was not in possession of the appellant. 8. On the other hand, learned counsel appearing for the respondents submit that the amount for insurance and registration was given to the appellant and thus, it was responsibility of the appellant to get the vehicle insured and registered. They submit that till the vehicle is registered in the name of respondent No. 7. For all practical purposes it is the appellant who continues to be the owner of the vehicle. Further, unless all the formalities like registration and insurance is done by the appellant, it is the appellant who would continue to remain as owner and in the present case, the sale transaction was also not completed. 9. Heard learned counsel for the parties and perused the material available on record. 10. Admittedly, there is no document on record to show that respondent No. 7 has paid any amount to the appellant towards insurance or registration of the vehicle in question. As per Delivery Challan, the amount paid by respondent No. 7 was under four heads i.e. cost of tractor, trolley, cultivator and cogwheel. 10. Admittedly, there is no document on record to show that respondent No. 7 has paid any amount to the appellant towards insurance or registration of the vehicle in question. As per Delivery Challan, the amount paid by respondent No. 7 was under four heads i.e. cost of tractor, trolley, cultivator and cogwheel. Though in its written statement it has been submitted by respondent No. 7 that a separate amount was also paid for insurance and registration but he has failed to prove this fact by leading any cogent legally admissible evidence. As per Delivery Challan and pleadings of the parties, the vehicle was taken by respondent No. 7 on 15.10.2007 and the same met with an accident on 1.11.2007. As per finding of the Tribunal, the appellant had banded over the vehicle to respondent No. 7 for demonstration purposes. However, this Court fails to understand as to in what circumstances the tractor and trolley can be given for demonstration for more than 16 days. If demonstration of the vehicle: is to be done, it is done for few minutes or few hours and the person intending to purchase the vehicle is permitted to take the vehicle along with an employee of the dealer from the showroom of the dealer for test drive and then he is supposed to brought back the vehicle to the showroom as early as possible after the test drive. 11. From the Delivery Challan it is apparent that on 15.10.2007 respondent No. 7 had paid amount for the vehicle under four heads i.e. cost of tractor, trolley, cultivator and cogwheel and thereafter had also deposited Rs. 1 lac with the appellant on 10.1.2008 Had respondent No. 7 taken the vehicle for demonstration on 15.10.2007, he would not have deposited any further amount. In addition to this, the documents also make it clear that the vehicle in question was taken by respondent No. 7 on Supurdnama on 13.12.2007 and this also proves ownership of respondent No. 7 of the vehicle. Moreover, in para-7 of his written statement, it has been admitted by respondent No. 7 that the vehicle in question was purchased him through finance. 12. Sale of motor vehicle is not governed by the provisions of Transfer of Property Act, but in fact are governed by provision's of Sale of Goods Act. Moreover, in para-7 of his written statement, it has been admitted by respondent No. 7 that the vehicle in question was purchased him through finance. 12. Sale of motor vehicle is not governed by the provisions of Transfer of Property Act, but in fact are governed by provision's of Sale of Goods Act. The transfer is complete upon payment of consideration and the delivery of the vehicle, irrespective of whether it has been registered or not. Even if the transferor or transferee failed to report the fact of transfer of vehicle to the registering authority, then too the sale is complete. In absence of any agreement to the contrary, payment of price and delivery of vehicle makes the sale complete. There can not be any dispute as to the legal position that the moment the price is paid and possession of motor vehicle is delivered to the purchaser, the sale is complete. It is immaterial that name of the purchaser is recorded in the registration certificate or not. 13. In the case in hand, the vehicle in question was already sod by the appellant to respondent No. 7 on 15.10.2007 and possession was delivered to him on the same date and this face has been clearly proved by the appellant apart from admission made by respondent No. 7 in his written statement. On the date when the said vehicle met with an accident, it was not insured and as such, the liability arising out of the accident is respondent No. 7 who as the relevant time, was owner of the vehicle. 14. Considering the facts and document available on record and the settled legal position on the issue involved, this Court is of the opinion that the Tribunal was not justified in fastening the liability upon the appellant to satisfy the award and in fact, it is respondent No. 7 who is liable for satisfying the award. In the result, the appeal is allowed. While exonerating the appellant of its liability, respondent No. 7 is held liable to satisfy the award. Respondent No. 7 is directed to pay the entire amount of compensation to the claimants as awarded by the Tribunal within a period of three months from today. The impugned award stands modified to the above extent. While exonerating the appellant of its liability, respondent No. 7 is held liable to satisfy the award. Respondent No. 7 is directed to pay the entire amount of compensation to the claimants as awarded by the Tribunal within a period of three months from today. The impugned award stands modified to the above extent. In is made clear that the amount already deposited by the appellant with the Tribunal, if not yet disbursed to the claimants, shall be refunded to the appellant. In case the amount so deposited or any part thereof has been disbursed the claimants, the appellant is at liberty to recover the same from respondent No. 7 in accordance with law.