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Himachal Pradesh High Court · body

2015 DIGILAW 24 (HP)

Shashi v. Meeran Devi

2015-01-06

RAJIV SHARMA

body2015
Judgment Rajiv Sharma, J. This appeal is instituted against the award dated 4.9.2014, rendered by the learned MACT-II, Hamirpur, H.P. in MAC Petition No. 01 of 2011/88 of 2011. 2. Key facts, necessary for the adjudication of this appeal are that respondents No. 1 & 2 have filed a claim petition against the appellants and respondents No. 3 & 4. According to the averments contained in the claim petition, respondent No. 2 has asked the appellant No. 1 Shashi Pal to supply a trolley of stones. At about 7:00 PM, after accomplishing his task, Shashi Pal and Amit Kumar asked Sunny, son of petitioners to accompany them to ‘khud’ from where stones/boulders were to be taken. While proceeding, it was found that the fuel was not sufficient. They came to Hareta bazaar. The accident took place. Sunny received serious injuries. He was removed to R.H. Hamirpur and then referred to IGMC, Shimla. He succumbed to injuries on 19.10.2010. An FIR No. 222/2010 dated 19.10.2010 was registered at Police Station, Barsar. The post mortem was got conducted. 3. Appellant No. 1 Sh. Shashi Pal, filed a separate reply. According to him, the accident has not taken place due to his rash and negligent driving. The Insurance Company-respondent No. 3, also filed the reply. According to it, the driver of the tractor was not holding a valid and effective driving licence at the time of the accident and there was breach of the Policy. Respondent No. 4 Swaroop Kumar was proceeded ex-parte. The appellant No. 2 Sh. Desh Raj did not file any reply. 4. Rejoinder was filed by the petitioners to the reply filed by the contesting parties. The issues were framed on 4.4.2013 by the learned MACT-II, Hamirpur, H.P. The learned MACT-II, Hamirpur, H.P. awarded compensation of Rs. 3,42,000/- alongwith interest @ 7.5% per annum from the date of filing of this petition till realization of entire amount in favour of the petitioners and against appellants No. 1, 2 & respondent No. 4 Sh. Swaroop Kumar. Hence, this appeal. 5. Mr. Narender Singh Thakur, Advocate, for the appellants has vehemently argued that there was no breach of the Insurance Policy. He then contended that the accident has not taken place due to the rash and negligent driving of appellant-Shashi Pal. Swaroop Kumar. Hence, this appeal. 5. Mr. Narender Singh Thakur, Advocate, for the appellants has vehemently argued that there was no breach of the Insurance Policy. He then contended that the accident has not taken place due to the rash and negligent driving of appellant-Shashi Pal. He also contended that Desh Raj was not the registered owner and thus, could not be fastened with joint liability with previous owner Sh. Swaroop Kumar. 6. I have heard the learned Advocate and gone through the judgments and records of the case carefully. 7. There is ample evidence on record to come to the conclusion that the accident has taken place due to the rash and negligent driving of appellant No. 1. An FIR was also registered immediately after the accident. According to PW-3 Amit Kumar, the father of the deceased had asked the driver to supply a trolley of stones. He alongwith Sunny went to get fuel on 18.10.2010. The vehicle was driven by appellant No. 1 Sh. Shashi Pal. The driver lost the control of the tractor and went off the road. The injured Sunny Kumar died when he was taken to hospital. PW-3 Amit Kumar is the only eye-witness of the accident. The Statement of RW-1 Shashi Pal has not been corroborated by any other witness, the manner in which the accident has taken place. The learned MACT taking into consideration the age of the deceased has rightly awarded the compensation by applying the multiplier of 13. 8. Now, the Court will advert to whether the appellants and respondent No. 4 Swaroop Kumar were jointly and severally liable for payment of compensation. The ownership of the tractor was recorded in the name of Swaroop Kumar as per RC Ext. RW-1/B. It has come on record that respondent No. 4 Swaroop Kumar had sold the tractor in question to appellant No. 2 Desh Raj. However, the fact of the matter is that the registration was not transferred in his favour. The Insurance Policy Ext. RW-1/C was valid from 22.9.2010 to 21.9.2011. The vehicle was duly registered with respondent No. 3-National Insurance Company. The driving licence of driver is Ext. RW-1/A. The tractor has only the sitting capacity of one person and despite that Amit Kumar and deceased Sunny were travelling on the tractor. This Court in the case of Surjeet Singh & ors. RW-1/C was valid from 22.9.2010 to 21.9.2011. The vehicle was duly registered with respondent No. 3-National Insurance Company. The driving licence of driver is Ext. RW-1/A. The tractor has only the sitting capacity of one person and despite that Amit Kumar and deceased Sunny were travelling on the tractor. This Court in the case of Surjeet Singh & ors. versus Jagraj Singh & ors., reported in 2006(2) Shim.LC 48 , has held as under: [9] When a trailer is attached to the tractor, the trailer can be used for carriage of goods. However, the trailer cannot be used for carriage of passengers. The question whether the tractor becomes a goods vehicle when a trailer has been attached to it has been left open by the Apex Court in National Insurance Co. v. V. Chinnamma. The Apex Court considered these questions and held as follows : “16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to the market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purpose. However, even if it be assumed that the trailer would answer the description of "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani and Ors. decisions following the same, as the accident had taken place on 24.11.1991 i.e. much prior to coming into force of the 1994 amendment [10] In view of the above law it is clear that no person other than the driver could travel on the tractor. decisions following the same, as the accident had taken place on 24.11.1991 i.e. much prior to coming into force of the 1994 amendment [10] In view of the above law it is clear that no person other than the driver could travel on the tractor. There was no insurance coverage for any passenger and hence the Insurance Company cannot be held liable to pay the compensation.” 8. In the case of National Insurance Company Vrs. Reena Devi, reported in Latest HLJ 2012 HP 582, this Court has held that the tractor has sitting capacity of only one person and is meant to be used only for agricultural purpose and not for carrying passengers. 9. Similarly, in the case of New India Assurance Company Ltd. Vrs. Sudesh Kumar and ors., reported in II (2007) ACC 386, has held that since the risk covered for tractor was only for driver and not passenger, the insurer was not liable to pay compensation regarding any passenger sitting on tractor. It has been held as under: “[6] Admittedly, the vehicle in question insured with the insurance company was a tractor. The sitting capacity of the vehicle was only one. It was meant to be used only for agricultural purpose and not for carrying of passengers. [7] A tractor is not a goods vehicle. Section 2(44) defines 'tractor' as under: 'tractor' means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); it excludes a road-roller. [8] It is, thus, clear that a tractor is not meant to carry any passenger or to carry any load. A trailer has been defined in Section 2(46) as under: 'trailer' means any vehicle, other than a semi-trailer and a sidecar, drawn or intended to be drawn by a motor vehicle. [10] In the present case, admittedly, the vehicle in question was a tractor and the insurance policy has been proved on record as Exh. RC. As per the insurance policy, the risk cover is only for the driver and not the passenger and there is no liability on the insurance company with regard to payment of compensation to any passenger sitting on the said tractor. Therefore, the insurance company cannot be held liable.” 10. RC. As per the insurance policy, the risk cover is only for the driver and not the passenger and there is no liability on the insurance company with regard to payment of compensation to any passenger sitting on the said tractor. Therefore, the insurance company cannot be held liable.” 10. It is not in dispute that respondent No. 4 Swaroop Kumar has sold the vehicle to appellant No. 2 Desh Raj as per affidavits Ext. RW-3/A and Ext. RW-3/B. Their lordships of the Hon’ble Supreme Court in the case of Pushpa alias Leela and ors. Vrs. Shakuntala and ors., reported in AIR 2011 SC 682 , have held that when neither transferor nor transferee took any steps for change of name of owner in certificate of registration. The transferor must be deemed to continue as owner of vehicle for purposes of Act even though under civil law, he would cease to be owner after sale of vehicle. The transferor was held liable to pay compensation. It has been held as follows: “[4] The heirs and legal representatives of both the deceased, Prem Chand and Nikku Ram filed separate claim applications before the Motor Accident Claims Tribunal, Solan, Himachal Pradesh. In both the claim applications Salig Ram, the transferee was impleaded as Respondent No. 1, Jitender Gupta, the original owner of the truck as Respondent No. 2 and Oriental Insurance Company Ltd. as Respondent No. 3. The two claim applications, MAC petition No. 62-NS/2 of 1994 filed by the heirs and legal representatives of the deceased Prem Chand (Appellants in this appeal) and MAC petition No. 63-NS/2 of 1994 filed by the heirs and legal representatives of the deceased Nikku Ram (who pursued the matter only up to the High Court and who have not been able to come to this Court in appeal) were consolidated and heard together. All the three Respondents appeared before the Tribunal and filed their separate replies resisting the claims of the two claimants. But none of the Respondents led any evidences before the Claims Tribunal. [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. But none of the Respondents led any evidences before the Claims Tribunal. [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 v. 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. 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. 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.” 11. The learned Single Judge in the case of Vinod Kumar and anr. Vrs. Nirmala Devi & anr. reported in AIR 2009 HP 37, has held that the transferor and transferee alongwith the driver were liable to pay compensation to the third party. It has been held as under: “[33] The definition under the new Act is exhaustive whereas under the old Act, the definition being inclusive the word 'owner' included the registered owner as well as the unregistered owner or transferee of a vehicle. The definition under the new Act carves out only three exceptions and does not cover a case of sale of vehicle where the price is paid and the possession of the vehicle is delivered to the purchaser/transferee. Even if sale is effectuated in the absence of compliance of mandatory requirements of law, transfer does not take place and the transferor continues to be the registered owner. Therefore, the registered owner cannot be absolved of liability qua third party. Importantly, the person in whose name the vehicle is registered is considered to be the owner and unless the name of the transferee is registered he does not become the owner thereof. [40] In my view, the transferor and the transferee would be liable, along with the driver, to pay the compensation to the third party.” 12. Importantly, the person in whose name the vehicle is registered is considered to be the owner and unless the name of the transferee is registered he does not become the owner thereof. [40] In my view, the transferor and the transferee would be liable, along with the driver, to pay the compensation to the third party.” 12. Accordingly, in view of the discussion made hereinabove, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.