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2015 DIGILAW 1837 (RAJ)

Oxide India Enterprises v. Suman Kumar Singh

2015-10-31

J.K.RANKA

body2015
JUDGMENT : 1. Instant appeal u/s 173 of the Motor Vehicle Act, 1988 has been filed by the non-claimant-appellant assailing award dt.18/08/2007 passed by the Motor Accident Claims Tribunal, Kishangarhbas, District Alwar in Claim Case No.56/2004 by which compensation to the tune of Rs.1,42,949/- has been awarded to the claimant-respondent. 2. Brief facts noticed are that one Suman Kumar Singh, being a contractor, after finishing his work of contract in M/s. Supreme Cylinder Ltd., Industrial Area, Bhiwadi, while coming out of the factory premises of the said company on 28/08/2003 at about 4.30 PM on his Motorcycle bearing No.HR-36-C-2966, at that time, one Contesa Car, bearing No.DL-3-CJ-4129, whose driver Jagdish Singh was driving it in high speed, in a rash and negligent manner, hit the claimant-Suman Kumar Singh as a result of which the claimant-Sunil Kumar Singh got seriously injured and was carried to Hospital in Bhiwadi by Mahendra Yadav and Hosiyar Singh. It is claimed that the claimant was contractor and was earing Rs.8,000/- per month and at the relevant point of time was aged about 42 years. An FIR was lodged and the claim petition was also filed thereafter. The Tribunal, after taking into consideration the material available on record and the injuries suffered as well as the disability certificate, allowed claim to the extent of Rs.1,42,949/- and directed the same to be recovered from the driver and owner (M/s. Oxide India Enterprises), appellant herein and exonerated the Insurance Company as the vehicle was not insured. 3. Counsel for the appellant contended that the claim allowed against the present appellant is unjust and improper and the order passed by the Tribunal is perverse. He contended that there is no evidence about involvement of the appellant at all either in the accident or even ownership of the alleged vehicle Contesa of appellant has not been proved. He further contended that the appellant sold the vehicle to Dalgit Singh long back on 20/05/2003, the entire amount was received, possession was handed over and on the fateful day of 28/08/2003, the appellant was not at all owner of or in any manner connected with the vehicle. Dalgit Singh was owner of the vehicle and was also driving the same. Therefore, fastening the liability on the appellant is unjust. Dalgit Singh was owner of the vehicle and was also driving the same. Therefore, fastening the liability on the appellant is unjust. He further contended that Dalgit Singh having purchased the vehicle long back and no evidence has come on record that Dalgit Singh was not owner of the Contesa Car rather he contended that Dalgit Singh himself had stated that he was the owner of the vehicle in his statement and once he himself stated to be owner of the vehicle, the question of treating the appellant as owner of the vehicle is wholly unjustified and contrary to the material on record. He further contended that the finding being totally perverse, requires consideration and deserves to be reversed. In the alternative, he contended that the amount allowed at Rs.1,42,949/- is highly excessive and abnormal for the disability of about 8.2% and neither the doctor was examined nor medical certificate was reliable. 4. Counsel for the appellant further contended that even Dalgit Singh was defecto owner on the date of incident and had categorically admitted that he purchased the said vehicle from the appellant on 20/05/2003 and even the witness Permanand also asserted this fact that vehicle was sold to Dalgit Singh on 20/05/2003. He further contended that it is wrong on the part of Dalgit Singh to come and allege that he was simply driver and not owner of the said vehicle when the entire evidence is against him and the liability has been wrongly inflicted upon the present appellant. After 20th May, 2003 the appellant having sold the vehicle, lost control on the vehicle and the claim is contrary to the material on record and the order of the Tribunal is unjust and bad. He further contended that the appellant had no title of the vehicle and being a movable asset, the delivery is sufficient. He further contended that for the fault of the defecto owner, the appellant, who had already handed over, sold and delivered the vehicle, cannot be held liable for any act by the defecto owner on or after 20/05/2003 and in support thereof, he relied upon judgments rendered in the case of National Insurance Co. Ltd. Vs. Deepa Devi & ors. 2008(1) SCC 414 ; Uttar Pradesh State Road Transport Corporation Vs. Kulsum and others: 2011 ACJ 2145 ; M.K. Kunjuraman and ors. Vs. Ltd. Vs. Deepa Devi & ors. 2008(1) SCC 414 ; Uttar Pradesh State Road Transport Corporation Vs. Kulsum and others: 2011 ACJ 2145 ; M.K. Kunjuraman and ors. Vs. Saramma and ors.: 1987 ACJ 1081; Rajesh Kumar @ Raju Vs. Yudhvir Singh & Anr.2008(1) Supreme 291; Raj Kumar Vs. Ajay Kumar & Anr.: (2011) 1 SCC 343 . 5. On the contrary, counsel for the claimant-respondent contended that order of the Tribunal is just and proper and needs no interference, particularly in view of the fact that the vehicle is duly registered in the name of the present appellant and was not at all transferred in the name of Dalgit Singh and therefore, the Tribunal has rightly come to the conclusion that the claim is to be paid by the appellant. He contended that there was no fault of the claimant-respondent who was seriously injured and has suffered heavily on account of the said accident and even otherwise, the claim allowed is grossly low as on account of serious disability caused due to negligence of the driver and owner of the offending vehicle, his entire life has come to standstill. The claimant was hail and hearty and on account of the unfortunate accident, his working capacity has been drastically reduced. Though the claimant was also aggrieved with such a low amount but he wanted to close the matter and therefore, did not prefer appeal for enhancement. He further contended that the finding of the Tribunal is just and proper and the ownership has been proved of the present appellant and saying that the vehicle was transferred in the name of Dalgit Singh is of no avail and the appellant is just wanting to shift the burden upon the poor driver and contended that the transfer deed, if any, which has been produced for perusal, is not at all reliable and has to be discarded. It was further contended by counsel for claimantrespondent that mere showing delivery from one hand to another on paper, cannot absolve the registered owner from liability when under the law, there is requirement that the vehicle can be said to be transferred only when it is registered and the registration of the vehicle takes place in the records of the RTO. He contended that u/Sec. 147 of the Motor Vehicles Act, the liability of the registered owner continues till the vehicle is registered in the name of transferee even if the vehicle is shown to be transferred merely on papers. He relied upon the judgments rendered in the case of Dr.T. Jose Vs. Chako: 2002 (1) RCR (Civil) 120(SC); Pusha Vs. Shakuntla: 2011 AIR (SC) 682 and Pride Constructions Vs. Suhas Dattar & ors. II (2012) ACC 77. He contended that the Hon'ble Apex Court and so also this Court has come to the conclusion in the aforesaid judgments that unless the vehicle is transferred in the records of the Regional Transport Authority (RTA), then for all practical purposes, the ownership cannot be said to be transferred. 6. Per-contra, counsel for the respondent-driver contended that the claim has rightly been allowed by the Tribunal and by no stretch of imagination, it can be said that Dalgit Singh was owner of the vehicle. She denied the contention raised by counsel for the appellant that Dajgit Singh became owner of the said vehicle. She, on instructions, contended that it is merely a claim to shift burden on the poor driver Dajgit Singh who himself is a poor person and not even in a position to own a two wheeler what to talk of a vehicle being Contessa. She further contended that he, being a poor driver, was asked to sign on the dotted lines and was pressurized and coerced by the appellant. She thus supported the order of the Tribunal. 7. I have considered the arguments advanced by counsel for the parties and in my view, the order of the Tribunal cannot be said to be perverse rather it is just and proper and needs no interference. 8. Admittedly, the claimant-Suman Kumar Singh got seriously injured at the time when he was coming out of the factory on 28/08/2003 on account of negligence of Dalgit Singh who was driving Contessa Car in high speed, in a rash and negligent manner and FIR was lodged and charge-sheet was also filed against the respondent-driver. The Tribunal has taken into consideration all the facts and material which is not required to be reiterated. The Tribunal has taken into consideration all the facts and material which is not required to be reiterated. It is a finding of fact recorded by the Tribunal that on 28/08/2003, the vehicle was registered in the name of the appellant and Dalgit Singh (driver of the appellant) was driving the vehicle as per instructions and directives of the present appellant who is owner. During the course of arguments, counsel for the appellant produced for perusal some transfer deed dt.20/05/2003 which though certainly shows that the vehicle has been transferred in the name of Dalgit Singh but in my view, it is a simple transfer deed on papers without any other material noted in the said so-called alleged transfer deed. During the course of arguments, the court raised a question to the appellant as to for how much consideration the vehicle was transferred and what was mode of receipt of the sale consideration as in the alleged transfer deed, neither the amount nor the mode of receipt of the sale consideration was mentioned but counsel for the appellant was unable to even convey as to on what consideration the vehicle was transferred. 9. Counsel for the appellant has placed for perusal of the Court Application/Form No.29 and 30 and it was to be presented before the Registration Officer, Delhi and Dalgit Singh, the so-called purchaser is said to be resident of Kalarpur, Tehsil and Police Station Tavad, District Gurgaon (Haryana) but this document has been got attested neither in Delhi nor in District Gurgaon but was got attested with a Notary Public of Kishagarh Bas (Alwar) which is neither of the place of ownership of the appellant nor the place of so-called purchaser Dalgit Singh but is an entirely at a different place which does not inspire confidence. Even otherwise, the alleged document is of 20/05/2003 and the incident is said to have taken place on 28/08/2003 i.e. almost after more than three months and between 20/05/2003 to 28/08/2003, no effort or care was taken by the appellant in getting the vehicle transferred/registered in the name of Dalgit Singh. Even sale consideration and mode of payment is not depicted as observed hereinbefore. 10. Even sale consideration and mode of payment is not depicted as observed hereinbefore. 10. Counsel for the respondent-Driver has clearly contended that Dalgit Singh (driver) is merely a driver and if the claim of the appellant is that the vehicle was transferred in the name of Dalgit Singh on 20/05/2003, it is a falsity and just to shift the burden on the poor driver and therefore, taking into consideration this argument of the counsel for the respondent9 driver, I am firmly of the opinion that the appellant has rightly been inflicted upon the liability to pay the claim amount. Counsel for the respondent-driver further contended that he being a poor driver of the appellant was asked to sign on the dotted lines and such an eventuality cannot be denied. In the case of Pushpa alias Leela and others Vs. Shakuntala and others (supra), the Hon'ble Apex Court had an occasion to consider the issue where the vehicle was not transferred in the name of the subsequent transferee (purchaser) and it was observed ad-infra:- “11. It is undeniable that notwithstanding the sale of the vehicle neither the transferor Jitender Gupta nor the transferee Salig Ram took any step for the change of the name of the owner in the certificate of registration of the vehicle. In view of this omission Jitender Gupta must be deemed to continue as the owner of the vehicle for the purposes of the Act, even though under the civil law he ceased to be its owner after its sale on February 2, 1993. 12. The question of the liability of the recorded owner of a vehicle after its sale to another person was considered by this Court in Dr. T.V. Jose vs. Chacko P.M., (2001) 8 SCC 748 . In paragraphs 9 and 10 of the decision, the Court observed and held as follows: "9. Mr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No.9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas. 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 the 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 if, in law, he is entitled to do so." (Emphasis added) 13. Again, in P.P. Mohammed vs. K. Rajappan & Ors., (2008) 17 SCC 624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held as follows: "4. These appeals are filed by the appellants. The insurance company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. These appeals are filed by the appellants. The insurance company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the appellant stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person." (Emphasis added) 14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of section 2(30) and section 50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd. 15. Learned counsel for the insurance company submitted that even though the registered owner of the vehicle was Jitender Gupta, after the sale of the truck he had no control over it and the possession and control of the truck were in the hands of the transferee, Salig Ram. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Company Ltd. vs. Deepa Devi & Ors., (2008) 1 SCC 414 . The facts of the case in Deepa Devi are entirely different. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Company Ltd. vs. Deepa Devi & Ors., (2008) 1 SCC 414 . The facts of the case in Deepa Devi are entirely different. In that case the vehicle was requisitioned by the District Magistrate in exercise of the powers conferred upon him under the Representation of the People Act, 1951. In that circumstance, this Court observed that the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remained under requisition, the owner did not exercise any control over it: the driver might still be the employee of the owner of the vehicle but he had to drive the vehicle according to the direction of the officer of the State, in whose charge the vehicle was given. Save and except the legal ownership, the registered owner of the vehicle had lost all control over the vehicle. The decision in Deepa Devi was rendered on the special facts of that case and it has no application to the facts of the case in hand. 11. Thus, the Hon'ble Apex Court came to the conclusion that may be under civil law the owner ceases to be the owner after sale of the vehicle being movable asset but in so far as the Motor Vehicles Act is concerned, he will continue to be said owner of the vehicle for the purposes of the Act so long his name continues in the records of RTA. 12. This Court had also an occasion to consider similar issue in the case of Tulsi Das Vs. Ashok Kumar & ors. (SB Civil Misc. Appeal No.1038/2010), decided on 23/05/2012 and this Court, relying upon another judgment of the Hon'ble Apex Court in the case of P.P. Mohammed Vs. K. Rajappan & ors.: 2003 ACJ 1595, observed as under:- “The issue of liability of both registered owner as well as the person to whom the vehicle has been sold and was found in actual possession, has been considered in the case of P.P. Mohammed vs. K. Rajappan & Ors.- 2003 ACJ 1595 and it has been held that both the de facto and de jure owners would be liable to satisfy the award jointly and severally. Appeals preferred by two owners, therefore, have no merit and they are liable to be dismissed.” 13. The judgments relied upon by the counsel for the appellant are distinguishable on the facts found and noticed. 14. Taking into consideration the view as aforesaid by the Hon'ble Apex Court and this Court, the appellant has been rightly held to be owner in so far as the present facts are concerned and will be certainly liable for the claim allowed by the Tribunal. 15. In so far as the fact that the claim of the counsel for the appellant that the amount allowed is excessive, in my view the same is just and proper because the Tribunal has taken into consideration the disability to be 8% and after taking note of the fact that the claimant was Production Incharge and the salary certificate was also placed on record and the statement of one Avdesh Tiwari (AW-3) who appeared on behalf of the Supreme Cyliners Limited, Bhiwadi contended that Suman Kumar Singh, the claimant was Production Incharge/Manager and thus taking into consideration the salary certificate and other facts, the income has rightly been taken to Rs.8,600/- per month and after taking into consideration the disability factor of 8.2%, the amount of Rs.1,23,840/- has been allowed on account of loss of income which cannot be said to be excessive or unreasonable. The other amount allowed of Rs.16,109/- is on account of medical bills which were placed on record in original before the Tribunal which is also based on material and meager amount of Rs.3,000/- has been allowed on account of transferring the claimant from hospital which also cannot be said to be unreasonable or excessive. 16. In light of the discussion made above it is held that the compensation amount is equally realisable from respondent no.3, Oriental Insurance Company Ltd. and it is directed to make full payment of the compensation amount as determined by the Claims Tribunal to the appellants within two months from the date of this judgment. 17. Even though the claimants in the other case, the heirs and legal representatives of Nikku Ram, have not come to this Court, we consider it appropriate to give the same direction in respect of their case. There is absolutely no difference in the case of Nikku Ram and Prem Chand. Nikku Ram, being a daily wage earner was given a compensation of Rs.2,42,000/-. There is absolutely no difference in the case of Nikku Ram and Prem Chand. Nikku Ram, being a daily wage earner was given a compensation of Rs.2,42,000/-. It is quite possible that his heirs and legal representatives were unable to come to this Court simply for want of sufficient means. The insurance company must pay the compensation amount determined in case of NikkuRam to his heirs and legal representatives in case the amount has so far not been realised from Salig Ram as directed by the Claims Tribunal. 18. The appeal is allowed but with no order as to costs.