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Himachal Pradesh High Court · body

2016 DIGILAW 2109 (HP)

Soma Devi v. Kumari Bharti

2016-09-30

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal arises from the impugned order of the Commissioner for Workmen's Compensation Jawali, District Kangra, H.P. (for short "the Commissioner") rendered under the Workmen's Compensation Act, 1923, (for short 'the Act') whereby he dismissed the petition preferred thereat by the dependent of deceased Krishan Kumar who met his end in a motor accident involving car bearing registration No. DL-4CA- 7237 whereon he stood purportedly engaged as a driver by deceased Rakesh Kumar who had purchased it from respondent No.3. Respondent No.1 and 4 are the LRs of deceased Rakesh Kumar. The Commissioner while returning findings on Issues No.2 and 3 against the dependent of deceased Krishan Kumar had yet proceeded to afford liberty to the dependent/claimant to institute a petition afresh against the original registered owner of the relevant car, who stood impleaded in the petition as respondent No.3. 2. The findings on issues No.2 and 3 stand visibly returned against the claimant/dependent. The findings recorded on issues No.2 and 3 by the Commissioner emanate on a gross mis-appreciation by him of the relevant material on record. Conspicuously when the counsel for the insurer while holding PW-1 to cross examination had put a suggestion to him qua Rakesh Kumar defraying to deceased Krishan Kumar wages per mensem quantified not in a sum of Rs.4000/- contrarily quantified in a sum of Rs.2000/- wherefrom the ensuable sequel warranting its eruption therefrom was hence of the insurer acquiescing to the deceased not only performing employment under deceased Rakesh Kumar as a driver in the relevant vehicle also his standing defrayed by his aforesaid employer salary quantified in a sum of Rs.2000/- per mensem. 3. The effect of the aforesaid pronouncement is of hence the learned Commissioner obviously erring in concluding qua Rakesh Kumar not employing deceased Krishan Kumar as a driver in the relevant vehicle nor his defraying to him any salary whereupon it declined relief qua the petitioner vis-a-vis deceased Rakesh Kumar whose LRs stand impleaded as respondents No.1 and 4 whereupon whom for reasons assigned hereinafter the apposite liability would stand fastened qua compensation determined vis-a-vis the claimant-dependent. Even though it stood aptly concluded by Commissioner qua deceased Krishan Kumar suffering his end in a Motor Vehicle accident involving the relevant vehicle yet it reiteratedly for reasons afore-stated inaptly concluded of the deceased not standing employed by Rakesh Kumar. 4. Even though it stood aptly concluded by Commissioner qua deceased Krishan Kumar suffering his end in a Motor Vehicle accident involving the relevant vehicle yet it reiteratedly for reasons afore-stated inaptly concluded of the deceased not standing employed by Rakesh Kumar. 4. Be that as it may even if it hence evidently upsurges of Rakesh Kumar employing the deceased as a driver in the relevant vehicle who evidently in course of performance of duties thereon as its driver met his end nonetheless the Commissioner concerned aptly concluded of even if deceased Rakesh Kumar had acquired possession of the relevant vehicle by transmitting the sale consideration to its hitherto owner impleaded as respondent No.3 yet significantly with the provisions of Section 50 of the Motor Vehicles Act which stand extracted hereinafter enjoining upon the registered owner to within 30 days of the relevant transaction, report to the relevant registering authority concerned the factum of transfer by him of the relevant vehicle whereas evidently with the mandate of the afore-stated provisions standing infracted, the obvious sequel thereof is of the insurer being un-amenable for fastening of liability qua compensation determined under the Act. Conspicuously, also the effect of transgression by the registered owner of the mandate afore-stated held in the provisions of Section 50 of the Act, is, thereupon the title qua the relevant vehicle of its hitherto owner not suffering any erosion nor obviously any title as owner in the relevant vehicle vesting in the predecessor-in-interest of respondents No.1 and 4 dehors the latter purveying the sale consideration qua it to respondent No.3 besides the liability qua compensation amount determined vis-a-vis the claimant/dependent, of the deceased being un-amenable for standing fastened upon the insurer. The aforesaid view is squarely in tandem with the mandate engrafted in Section 50 of the Act, tritely when its mandatory provisions suffer infraction at the instance of respondent No.3 also when the predecessor-in-interest of respondents No.1 and 4 for want of his name occurring in substitution of respondent No.3 in the apposite registration certificate, is not construable to be holding title thereto dehors his transferring the apposite sale consideration to respondent No.3 nor also his successors-in-interest impleaded in the apposite petition as Respondents No.1 and 4 can hence be construable to be holding lawful title thereto. "50. "50. Transfer of ownership.- (1) 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; and (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 acknowledgment received by the transferee if he has sent an application in this behalf by registered post acknowledgment 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; (b) 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. (2) Where- (a) the person in whose name a motor vehicle stands registered dies, or (b) a motor vehicle has been purchased or acquired at a public auction conducted by, or on behalf of, Government, the person succeeding to the possession of the vehicle or, as the case may be, who has purchased or acquired the motor vehicle, shall make an application for the purpose of transferring the ownership of the vehicle in his name, to the registering authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, in such manner, accompanied with such fee, and within such period as may be prescribed by the Central Government. (3) If the transferor or the transferee fails to report to the registering authority the fact of transfer within the period specified in clause (a) or clause (b) of sub-section (1), as the case may be, or if the person who is required to make an application under sub-section (2) (hereafter in this section referred to as the other person) fails to make such application within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the transferor or the transferee, or the other person, as the case may be, to pay, in lieu of any action that may be taken against him under section 177 such amount not exceeding one hundred rupees as may be prescribed under sub-section (5): Provided that action under section 177 shall be taken against the transferor or the transferee or the other person, as the case may be, where he fails to pay the said amount. (4) Where a person has paid the amount under sub-section (3), no action shall be taken against him under section 177. (5) For the purposes of sub-section (3), a State Government may prescribe different amounts having regard to the period of delay on the part of the transferor or the transferee in reporting the fact of transfer of ownership of the motor vehicle or of the other person in making the application under sub-section (2). (6) On receipt of a report under sub-section (1), or an application under sub-section (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration. (6) On receipt of a report under sub-section (1), or an application under sub-section (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." 5. Herein-after, it is also imperative to determine the legality of dispelling by the Commissioner the efficacy of Ex. P-2, exhibit whereof comprises the driving license held by deceased Krishan Kumar. The learned Commissioner had ousted the efficacy of Ex. P-2 on the score of its not being the original of the relevant driving licence. Also it cast an obligation upon the appellant to summon its original from the licensing authority concerned, omission whereof on her part stood concluded by it to work adversely vis-a-vis her claim. However, the aforesaid ousting by the Commissioner qua the tenacity of Ex. P-2 is grossly fallacious significantly when it was incumbent upon the insurer to belie the efficacy of Ex.P-2. Moreover with the deceased suffering fatal injuries in the motor vehicle accident wherefrom it is inevitable to conclude of his thereat holding the driving licence rendering hence his dependant to stand incapacitated to produce it whereas the insurer omitting to summon the relevant record from the Licensing authority concerned warranted a conclusion of its not concerting to belie Ex.P-2 whereupon it was inapt for the Commissioner to conclude of Ex.P-2 wanting in any probative vigor. 6. In aftermath also with the insurer not belying its effect by summoning its original from the licensing authority concerned, it was un-warranted for the learned commissioner to conclude qua Ext.P-2 for want of production of original by the claimant not holding any efficacy. With this Court concluding of the deceased Krishan Kumar suffering his end in a Motor vehicle accident involving the relevant vehicle wherein he stood employed as a driver by deceased Rakesh Kumar on a per mensem salary of Rs.4000/-, yet with this Court concluding qua deceased Rakesh Kumar not being the registered owner of the relevant vehicle wherefrom it is apt to conclude qua the insurer being un-amenable for any liability being fastenable upon it for indemnifying deceased Rakesh Kumar or his successors-in-interest impleaded as respondents No.1 and 4 qua the compensation amount as stands assessed by this Court. 7. 7. In view of the above, the present appeal is allowed. The impugned award is quashed and set aside. The appellant is held entitled to compensation determined as follows: Average monthly wages 4000/- Restricted to 50% 2000/- Relevant factor applied Compensation = 2000 x 213.57 = 427140/- 8. The aforesaid amount of compensation shall be paid by respondent No.4 on her behalf and on behalf of minor respondent No.1 with 12% simple interest from due date i.e 5.1.2002 till the date of actual payment. All pending applications stand disposed of accordingly. Substantial questions of law framed on 4/x/2010 stand answered accordingly.