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2018 DIGILAW 857 (GAU)

JURIMONI PHOOKAN KAKATY v. STATE OF ASSAM

2018-05-24

A.K.GOSWAMI

body2018
JUDGMENT AND ORDER : 1. Heard Mr. D. Saikia, learned counsel, appearing for the petitioner. Also heard Ms. M. Bhattacharjee, learned State counsel, appearing for respondent Nos. 1 to 4 as well as Mr. S. K. Goswami, learned counsel, appearing for respondent No. 5. 2. The case of the petitioner, in brief, is that she is the registered owner of a vehicle, namely, Bolero SLX, having registered No. AS-01/CC-4834. It is stated that from the very next date of its purchase, the said vehicle was hired under requisition by the Motor Transport Officer, City Police Reserve, City Guwahati, for maintaining law and order situation, and the vehicle was attached with the Inspector General of Police (Logistics), Assam. After a few days, a constable, namely, Ram Bahadur Chetry, 4th APRF, Howly, Barpeta, was deputed as driver of the vehicle. The vehicle was stolen on 04.09.2011 and, accordingly, the petitioner filed an ejahar before the Officer-in-Charge, Dispur Police Station, naming the said Ram Bahadur Chetry as a suspect. Accordingly, Dispur Police Station Case No. 1806/2011 under Section 379 IPC was registered. The vehicle was under comprehensive insurance of respondent No. 5 herein, i.e., National Insurance Company (for short, "Insurance Company"), valid from 01.03.2011 to 09.03.2012. The Insurance Company was duly informed about the loss of the vehicle. However, simultaneously, the petitioner also submitted a representation to respondent Nos. 3 and 4, i.e., Senior Superintendent of Police, City Guwahati, and Motor Transport Officer, City Police Reserve, City Guwahati, respectively, to take steps for recovery of the vehicle. On 26.10.2011, respondent No. 4 issued a letter to respondent No. 5 requesting him to pay compensation to the petitioner stating therein that the said vehicle was hired by the City Police Reserve and was attached with the Inspector General of Police (Logistics), Assam, and that the said vehicle was being driven by Ram Bahadur Chetry, a Government Driver, from 01.07.2011. It was also stated in the said letter that the vehicle had been stolen on 04.09.2011 at about 4:00 A.M. within the hiring period. It was further mentioned therein that the order of hiring from 01.07.2011 to 04.09.2011 would be served after receipt of the same from the Office of the Deputy Commissioner, Kamrup (Metro). 3. It was also stated in the said letter that the vehicle had been stolen on 04.09.2011 at about 4:00 A.M. within the hiring period. It was further mentioned therein that the order of hiring from 01.07.2011 to 04.09.2011 would be served after receipt of the same from the Office of the Deputy Commissioner, Kamrup (Metro). 3. Once again, on the request of the petitioner, the Additional Superintendent of Police, Headquarters, City Guwahati, issued a letter dated 24.11.2011 requesting the respondent No. 5 to pay adequate compensation to the petitioner. 4. As no compensation was paid, the petitioner has approached this court by filing this writ petition praying for a direction to pay compensation of Rs. 6.00 lakh against the loss of her vehicle. The petitioner has not made any specific prayer for a direction to the State respondents to make payment of the compensation, but, in paragraph 14 of the writ petition, statement is made that as the vehicle was requisitioned under a statute and was under continued requisition till the time of the accident, the State is liable to pay compensation. 5. Respondent Nos. 2 to 4 filed an affidavit stating that the vehicle in question was hired by the City Police from 01.03.2010 (Sic) and not requisitioned, as alleged by the petitioner. It is also stated therein that the vehicle was attached with the Inspector General of Police (Logistics), Assam. That constable Ram Bahadur Chetry was detailed for driving the vehicle is not denied. In the affidavit it is stated that, on the fateful day, Ram Bahadur Chetry had parked the vehicle inside the campus of his father-in-laws house though, normally, he resides within the office complex of Bureau of Investigation of Economic Office (BIEO) and that in connection of theft a person had been arrested on 13.09.2011. It is further stated in the affidavit that letters were also issued to the Insurance Company to facilitate making of payment of compensation to the petitioner. It is stated that as the vehicle was stolen while in custody of the Government, as the vehicle was on hire and not on requisition, it is the burden of the Insurance Company to make payment to the petitioner in terms of the insurance policy. 6. Mr. It is stated that as the vehicle was stolen while in custody of the Government, as the vehicle was on hire and not on requisition, it is the burden of the Insurance Company to make payment to the petitioner in terms of the insurance policy. 6. Mr. Saikia, learned counsel for the petitioner submits that as the vehicle was on requisition and was under control of the Government, the State respondents are liable to pay compensation of Rs. 6.00 lakhs, being the insured amount. 7. Ms. Bhattacharjee, on the other hand, submits that the vehicle was not under requisition but was on hire and the State had no absolute control over the vehicle and, therefore, it is the responsibility and obligation of the Insurance Company to make payment of the compensation amount. She has produced before the court an undated order of the Additional District Magistrate, Kamrup (M) District, which is taken on record. 8. Mr. Goswami submits that the question whether the vehicle was under requisition or on hire, in the facts and circumstances of the case, will be of no consequence as the materials on record demonstrate that the vehicle was in the custody of the Government at all points of time, including at night, so much so that the respondents had also detailed a police constable to drive the vehicle and, therefore, the petitioner had no control over the vehicle. Mr. Goswami has placed reliance on the following judgments: (i) Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari and Others, reported in (1997) 7 SCC 481 , National Insurance Co. Ltd. vs. Deepa Devi and Others, reported in (2008) 1 SCC 414 and State of Tripura vs. Joydeb Lodh, reported in 2014 ACJ (II) 893. 9. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 10. Except the fact as to whether the vehicle was under requisition or on hire, there is no dispute in respect of other material facts. It is not disputed that the driver of the vehicle was a police constable and that the vehicle was stolen while in physical custody of the Government. 11. The petitioner has not produced any document to establish that the vehicle was requisitioned in accordance with the provisions of the Assam Requisition and Control of Vehicles Act, 1968 (for short, "Requisition Act"). 11. The petitioner has not produced any document to establish that the vehicle was requisitioned in accordance with the provisions of the Assam Requisition and Control of Vehicles Act, 1968 (for short, "Requisition Act"). The respondents have also not produced any document at the time of filing affidavit demonstrating as to how the vehicle was hired, except stating that the vehicle was hired from 01.03.2010 till 03.09.2011 (which could not have been as the vehicle was purchased on 10.03.2010). According to the petitioner, the vehicle was taken from her custody on 11.03.2010. Thus, what is clear is that the vehicle was continuously in possession of the State Government for more than eighteen months at a stretch. The order that has been produced before the court by Ms. Bhattacharjee is not dated. The said order is signed by the Additional District Magistrate, Kamrup (M) District, Guwahati, indicating that, according to his opinion, the vehicle was required for public service for the purpose of maintenance of law and order in the State of Assam. The vehicle in question is the vehicle which belonged to the petitioner. By the said order it was ordered that the vehicle be taken on hire on the terms and conditions mentioned therein and the owner of the vehicle was directed to deliver the vehicle in good running condition along with driver by 11:00 A.M. of 01.07.2011 up to 11:00 P.M. of 04.09.2011. It is also stated therein that the vehicle was used by Senior Superintendent of Police, Guwahati, whereas, the stand taken in the affidavit is that the vehicle was attached with the Inspector General of Police (Logistics), Assam, when it was stolen. In the affidavit filed, no averments are made that the vehicle was disengaged from time to time and was again taken on hire. It will also be relevant to take note of the fact that the Insurance Company was requested twice by the respondents by their letters dated 26.10.2011 and 24.11.2011 to pay compensation to the petitioner. 12. In Rajasthan State Road Transport Corporation (supra), a bus was hired by Rajasthan State Road Transport Corporation (RSRTC) from its owner and the driver of the vehicle was an employee of the RSRTC. In an accident twenty-three passengers travelling in the ill-fated bus died while the bus was running on a specified route. 12. In Rajasthan State Road Transport Corporation (supra), a bus was hired by Rajasthan State Road Transport Corporation (RSRTC) from its owner and the driver of the vehicle was an employee of the RSRTC. In an accident twenty-three passengers travelling in the ill-fated bus died while the bus was running on a specified route. The Supreme Court observed that the definition of "owner" under Section 2 (19) of the Motor Vehicles Act, 1988 is not exhaustive and that 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. The Supreme Court accordingly held that on facts and in law the liability to pay compensation for the accident must fall on the RSRTC. 13. In State of Tripura (supra), the basic facts, inter alia, were that the vehicle which met with the accident was leased out to the Electrical Department of the Government of Tripura. The driver of the vehicle was employed by the owner of the vehicle. In the accident, the driver sustained severe fractured injuries in both of his legs. The Commissioner, Workmen Compensation, awarded compensation directing the State to make payment of the compensation. The appeal filed by the State, wherein contention was advanced that as the vehicle had a valid insurance on the date of the accident, the Insurance Company is liable to make payment, was rejected. This Court held that the vehicle was leased out by the owner for the use of the State and that the vehicle had met with an accident while the same was under the control and possession of the State and, thus, the State was the owner of the vehicle for all intents and purposes at the relevant point of time of the accident. 14. In National Insurance Co. Ltd. (supra), in the context of a vehicle under requisition, it was held that it was the liability of the State to pay the amount of compensation and not the registered owner of the vehicle on the ground that while the vehicle remains under requisition, the owner does not exercise any control whatsoever over the vehicle. It was observed by the Supreme Court that the court must proceed on the presumption that the Parliament, while enacting the Motor Vehicles Act, 1988, did not envisage such a situation. It was observed by the Supreme Court that the court must proceed on the presumption that the Parliament, while enacting the Motor Vehicles Act, 1988, did not envisage such a situation. It was observed that if, in a given situation, the statutory definition contained in the Motor Vehicles Act, 1988 cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view. 15. Section 2 (30) of the Motor Vehicles Act, 1988, defines "owner" as follows: "2. Definitions. In this Act, unless the context otherwise requires, - (30) owner means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement." 16. A perusal of the above would go to show that Section 2 starts with the words, "In this Act, unless the context otherwise requires ". Thus, the definition of owner, under Section 2 (30) of the Motor Vehicles Act, 1988 is not exhaustive and admits of a different definition if the context so requires. The definition has to be construed in a wider sense if the facts and circumstances so warrant and the expression must include, in a given case, a person who is in the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the vehicle. To restrict the meaning of "owner" to the registered owner only, in a given case where the vehicle is in actual possession and control of another person, will not be right and equitable for the purpose of fastening liability. The question whether the owner had any possession and control over the vehicle being pivotal, the issue as to whether the vehicle was under requisition or was taken on hire, as stated by the State, pales into insignificance. However, a word or two on the document produced by Ms. Bhattacharjee, wherein it is stated that the vehicle was required for public service for the purpose of maintaining law and order in the State of Assam, will be in order. However, a word or two on the document produced by Ms. Bhattacharjee, wherein it is stated that the vehicle was required for public service for the purpose of maintaining law and order in the State of Assam, will be in order. Though this was not the stand taken in the affidavit and although the State, by producing the said order, which is not dated, wants to establish that the vehicle was taken on hire, what strikes the court is that language employed is akin to grounds of requisitioning a vehicle under the provisions of the Requisition Act, which provides for, amongst others, requisitioning of a vehicle for maintaining public order. 17. The undisputed facts are pointer to the fact that the State had employed its own driver by way of detailing a constable to drive the vehicle and the vehicle was stolen when the driver kept it in his father-in-laws house, instead of the designated place in the BIEO Complex. Essentially, the registered owner, i.e., the petitioner had lost all control over the vehicle and it was in all pervasive control of the State. The principles that apply to an accident would also be applicable in a case of a stolen vehicle, which was covered by insurance. 18. In view of the above discussions, I am of the opinion that it is the State who is to pay the compensation to the petitioner and not the owner and, thereby, the Insurance Company. The vehicle was stolen one day after the insurance premium had been deposited by the petitioner. The vehicle was insured for a sum of Rs. 6.00 lakhs and it is on that basis the petitioner has claimed compensation of Rs. 6.00 lakhs. Accordingly, State respondents are directed to make payment of Rs. 6.00 to the petitioner towards compensation within a period of three months from the date of receipt of a certified copy of this order. If the compensation is not paid within the stipulated period of three months, the same will carry interest at the rate of 6% per annum from the date of filing of this application, i.e. 23.03.2012. 19. Writ petition stands allowed in terms of the above. No cost.