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Himachal Pradesh High Court · body

2017 DIGILAW 109 (HP)

Randip Singh v. Ikram Khan

2017-03-03

MANSOOR AHMAD MIR

body2017
Mansoor Ahmad Mir, J, This appeal is directed against the judgment and award dated 3.12.2011, passed by the Motor Accident Claims Tribunal-II Sirmaur District at Nahan, HP, hereinafter referred to as “the Tribunal”, for short, in MAC Petition No. 118-N/2 of 2005, titled Ikram Khan versus Sh. Jiwan Singh and another, whereby compensation to the tune of Rs.1,94,642/- alongwith interest @ 7.5% per annum was awarded in favour of the claimant and respondents in the claim petition came to be saddled with the liability, for short “the impugned award”, on the grounds taken in the memo of appeal. 2. Claimant and Jiwan Singh owner–cum- driver of Three Wheeler No. HP-50-0235, have not questioned the impugned award on any ground, thus the same has attained the finality, so far as it relates to them. 3. Appellant has questioned the impugned award on the grounds taken in the memo of appeal. 4. Precisely, the case of the appellant is that though he was registered owner of the offending vehicle but he had sold the vehicle to Raj Kumar in terms of sale letter Ext. RW1/A on 12.9.1996 and in the year 2003, the vehicle was purchased by Jiwan Singh in terms of agreement Ext. RW1/B and had produced the documents before the Tribunal below. Both the documents have been proved, which is recorded in para 12 of the impugned award. 5. During the pendency of the appeal, the documents have been sought from the Investigating Agency. The police produced the Photostat copies of documents which were taken on record and do disclose that during the investigation, the offending vehicle was seized and stood released in favour of Jiwan Singh, on his application, on the ground that he was the owner and possessor of the said vehicle at the relevant point of time, i.e. the date of accident. The agreement Ext. RW1/B is also on record. Having said so, Jiwan Singh was having control of the vehicle at the relevant point of time. 6. This Court in FAO No.314 of 2011, titled, Lakhwinder Singh Versus Seema Devi and others decided on 7.10.2016, held that the person who is in actual possession of the vehicle and is under control of the same at the time of accident has to satisfy the liability. It is apt to reproduce paras 25 and 26 of the said judgment herein. “25. It is apt to reproduce paras 25 and 26 of the said judgment herein. “25. The Apex Court in case titled as HDFC Bank Ltd. vs. Kumari Reshma and Ors, 2014 AIR SCW 6673 held that a person who is in possession of the vehicle in terms of a hire purchase agreement or agreement of lease or agreement of hypothecation is the owner of the said vehicle. It is apt to reproduce paragraphs 10 and 24 of the said judgment hereunder: “10. On a plain reading of the aforesaid definition, it is demonstrable that a person in whose name a motor vehicle stands registered is the owner of the vehicle and, where motor vehicle is the subject of hire-purchase agreement or an agreement of hypothecation, the person in possession of the vehicle under that agreement is the owner. It also stipulates that in case of a minor, the guardian of such a minor shall be treated as the owner. Thus, the intention of the legislature in case of a minor is mandated to treat the guardian of such a minor as the 'owner'. This is the first exception to the definition of the term 'owner'. The second exception that has been carved out is that in relation to a motor vehicle, which is the subject of hire-purchase agreement or an agreement of lease or an agreement of hypothecation, the person in possession of vehicle under that agreement is the owner. Be it noted, the legislature has deliberately carved out these exceptions from registered owners thereby making the guardian of a minor liable, and the person in possession of the vehicle under the agreements mentioned in the dictionary clause to be the owners for the purposes of this Act. 24. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration.” 26. The Apex Court further held that the person who is in actual possession of the vehicle and is under control of the same at the time of accident has to satisfy the liability. The Apex Court further held that the person who is in actual possession of the vehicle and is under control of the same at the time of accident has to satisfy the liability. It is apt to reproduce paragraphs 13, 15, 16 and 25 hereunder: “13. In this context, we may refer to a two- Judge Bench decision in Rajasthan State Road Transport Corporation V. Kailash Nath Kothari & Others, 1997 7 SCC 481 . In the said case, plea was taken by the Rajasthan State Road Transport Corporation (RSRTC) before the High Court that as it was only a hirer and not the owner of the bus, it could not be fastened with any liability for payment of compensation but the said stand was not accepted. It was contended before this Court that the Corporation not being the owner of the bus was not liable to pay any compensation arising out of the accident because driver who was driving the bus at the relevant time, was not in the employment of the owner of the bus and not of the Corporation and hence, it could not be held vicariously liable for the rash and negligent act of the driver. The Court referred to the definition in Section 2(3), which defines "contract carriage", Section 2(19), which defines the "owner", Section 2(29), which defines "stage carriage" and Section 42 that dealt with "necessity of permits". Be it stated, these provisions reproduced by the Court pertained to Motor Vehicles Act, 1939 (for short, 'the 1939 Act'). The owner under the 1939 Act was defined as follows: "2. (19) 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hirepurchase agreement, the person in possession of the vehicle under that agreement;" The Court referred to the conditions 4 to 7 and 15 of the agreement and in that context held thus: "The admitted facts unmistakably show that the vehicle in question was in possession and under the actual control of RSRTC for the purpose of running on the specified route and was being used for carrying, on hire, passengers by the RSRTC. The driver was to carry out instructions, orders and directions of the conductor and other officers of the RSRTC for operation of the bus on the route specified by the RSRTC". While dealing with the definition of the owner under the 1939 Act, the Court ruled that the definition of owner under Section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of "owner" to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer would not be proper for the purpose of fastening of liability in case of an accident. The liability of the "owner" is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. 15. In this context, it is profitable to refer to a two-Judge Bench decision in National Insurance Co. Ltd. V. Deepa Devi & Ors., 2008 1 SCC 414 . In the said case the question arose whether in the event a car is requisitioned for the purpose of deploying the same in the election duty, who would be liable for payment of compensation to the victim of the accident in terms of the provisions of 1988 Act. The Court referred to the definition of 'owner' in the 1939 Act and the definition of 'owner' under Section 2(30) of the 1988 Act. In that context, the Court observed that the legislature either under the 1939 Act or under the 1988 Act had visualized a situation of this nature. The Court took note of the fact that the respondent no. In that context, the Court observed that the legislature either under the 1939 Act or under the 1988 Act had visualized a situation of this nature. The Court took note of the fact that the respondent no. 3 and 4 continued to be the registered owners of the vehicle despite the fact that the same was requisitioned by the District Collector in exercise of the power conferred upon him under the Representation of People Act, 1951 and the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the District Collector. Proceeding further, the Court ruled thus: "...... While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover. He has no say as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle remains under the control of the State and/or its officers, the owner is only entitled to payment of compensation therefore in terms of the Act but he cannot not exercise any control thereupon. In a situation of this nature, this Court must proceed on the presumption that Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation, the statutory definitions contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view. 16. Elaborating the concept, the Court referred to Mukesh K. Tripathi V. Senior Divisional Manager LIC, 2004 8 SCC 387 , Ramesh Mehta V. Sanwal Chand Singhvi, 2004 5 SCC 409, State of Maharashtra V. Indian Medical Assn., 2002 1 SCC 589 , Pandey & Co. 16. Elaborating the concept, the Court referred to Mukesh K. Tripathi V. Senior Divisional Manager LIC, 2004 8 SCC 387 , Ramesh Mehta V. Sanwal Chand Singhvi, 2004 5 SCC 409, State of Maharashtra V. Indian Medical Assn., 2002 1 SCC 589 , Pandey & Co. Builders (P) Ltd., V. State of Bihar, 2007 1 SCC 467 and placed reliance on Kailash Nath Kothari , National Insurance Co. Ltd. V. Durdadahya Kumar Samal, 1988 2 TAC 25 and Chief Officer, Bhavnagar Municipality V. Bachubhai Arjanbhai, 1996 AIR(Guj) 51 and eventually opined the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and consequently the appellant therein, the insurance company. 25. In Purnya Kala Devi, a three-Judge Bench has categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-in-interest of the appellant, Centurion Bank, was the registered owner along with respondent no.2. The respondent No. 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent no.2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable.” 7. In view of the above discussion, it is held that Jiwan Singh, who was in actual possession of the offending vehicle, had the control of the offending vehicle, at the time of accident and thus, has to satisfy the entire liability. 8. Having said so, the impugned award is modified by providing that Jiwan Singh respondent No. 2 herein has to satisfy the award in toto. 9. Accordingly, the appeal is allowed and the impugned award is modified as indicated hereinabove. 10. Respondent No. 2 Jiwan Singh is directed to deposit the amount before the Tribunal below, if not already deposited, and on deposit, the Tribunal is directed to release the same in favour of the claimant. 11. Send down the record forthwith, after placing a copy of this judgment.