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Himachal Pradesh High Court · body

2018 DIGILAW 993 (HP)

Pungu Devi v. Hirdu Ram

2018-05-25

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —This appeal at the instance of the owner and driver of the offending vehicle takes exception to the award dated 31.10.2012 passed by the learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, in M.A.C. petition No. 47/2009, whereby he awarded a sum of Rs.9, 77, 000/- along with interest @ 8.5% per annum from the date of the petition till realization in favour of the claimants/respondents No. 1 to 5 and against the appellants. 2. The brief facts giving rise to the present appeal are that a claim petition under Section 166 of the Motor Vehicles Act (in short, ''the Act'') came to be filed by the claimants/respondents No.1 to 5 claiming compensation on account of death of Inder Devi, in a vehicular accident involving vehicle No. HP-26-0590, in which, she had been travelling on 17/2/2009. It was alleged by the claimants that at the relevant time the vehicle was owned by appellant No.1 and being driven by appellant No.2 in a rash and negligent manner. The deceased had boarded the vehicle from Chaura to Rupi at about 6.00 P.M. and when it reached Dumpti near Nigulsari, it met with an accident and as a result whereof, the deceased sustained multiple injuries on her person. The deceased was firstly attended by Medical Officer, MGMSC, Khaneri and thereafter was referred to PGI Chandigarh, where she died on 19.2.2009. An FIR No.26/2009 dated 18.2.2009 was registered at Police Station Bhabanagar against appellant No.2. 3. The appellants contested the petition by filing separate replies, wherein appellant No.1 denied that he was the owner of the vehicle at the time of accident and claimed to have sold the same about 7 months prior to the accident to one Ram Bhagat. Appellant No.2 in his reply denied that he was driver of the vehicle at the relevant time and averred that criminal case had wrongly been registered against him. 4. Since the offending vehicle was not insured, the learned Tribunal vide award dated 31.10.2012 awarded a sum of Rs.9, 77, 000/- along with interest @ 8.5% per annum from the date of the petition till realization in favour of the claimants/respondents No. 1 to 5 to be paid by the appellants jointly and severally. 5. 4. Since the offending vehicle was not insured, the learned Tribunal vide award dated 31.10.2012 awarded a sum of Rs.9, 77, 000/- along with interest @ 8.5% per annum from the date of the petition till realization in favour of the claimants/respondents No. 1 to 5 to be paid by the appellants jointly and severally. 5. Aggrieved by the impugned award of the learned Tribunal, the appellants have filed the instant appeal mainly on the ground that the liability to pay compensation to the claimants could not have been fastened upon them especially when appellant No.1 was not the owner of the vehicle and appellant No.2 was not driving the same at the relevant time. 6. I have heard the learned counsel for the parties and have also gone through the records of the case. 7. As regards first contention, it is vehemently argued by Mr. Dibender Ghosh, learned counsel for the appellants that appellant No.1 was not the owner of the vehicle and had in fact sold the same about 7 months prior to the accident to one Ram Bhagat, son of Dhanbir, resident of Rupi. 8. Notably, issue No.3 to this effect had been framed by the learned Tribunal and despite this, appellant No.1 did not choose to step into the witness box. He neither placed on record documentary evidence which could go to show that he in fact had sold the offending vehicle to Ram Bhagat nor he chose to produce the registration certificate on record. 9. Indubitably, the offending vehicle continues to be registered in the name of appellant No.1. If that be so, obviously then for the purpose of Motor Vehicles Act, person whose name is reflected in the records of Registering Authority, is the owner of the vehicle. 10. This issue is no longer res integra and has in fact been reiterated recently by Three Judges'' Bench of Hon''ble Supreme Court in Naveen Kumar vs. Vijay Kumar and ors. , (2018) 3 SCC 1 , wherein it was observed as under: 6. 10. This issue is no longer res integra and has in fact been reiterated recently by Three Judges'' Bench of Hon''ble Supreme Court in Naveen Kumar vs. Vijay Kumar and ors. , (2018) 3 SCC 1 , wherein it was observed as under: 6. The expression ''owner'' is defined in Section 2(30) of the Act, 1988, thus: "2(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." The person in whose name a motor vehicle stands registered is the owner of the vehicle for the purposes of the Act. The use of the expression ''means'' is a clear indication of the position that it is the registered owner who Parliament has regarded as the owner of the vehicle. In the earlier Act of 1939, the expression ''owner'' was defined in Section 2(19) 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." 7. Evidently, Parliament while enacting the Motor Vehicles Act, 1988 made a specific change by recasting the earlier definition. Section 2(19) of the earlier Act stipulated that where a person in possession of a motor vehicle is a minor the guardian of the minor would be the owner and where the motor vehicle was subject to a hire purchase agreement, the person in possession of the vehicle under the agreement would be the owner. The Act of 1988 has provided in the first part of Section 2(30) that the owner would be the person in whose name the motor vehicle stands registered. Where such a person is a minor the guardian of the minor would be the owner. In relation to a motor vehicle which is the subject of an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement would be the owner. Where such a person is a minor the guardian of the minor would be the owner. In relation to a motor vehicle which is the subject of an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement would be the owner. The latter part of the definition is in the nature of an exception which applies where the motor vehicle is the subject of a hire purchase agreement or of an agreement of lease or hypothecation. Otherwise the definition stipulates that for the purposes of the Act, the person in whose name the motor vehicle stands registered is treated as the owner. 8. Section 50 deals with the procedure for transfer of ownership, and provides as follows: "50. Otherwise the definition stipulates that for the purposes of the Act, the person in whose name the motor vehicle stands registered is treated as the owner. 8. Section 50 deals with the procedure for transfer of ownership, and provides as follows: "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 acknowledgement received by the transferred if he has sent an application in this behalf by registered post acknowledgement 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." 9. The decision of the Bench of two judges of this Court in Pushpa alias Leela was in a case where the offending vehicle was registered in the name of J who had sold it to S on 2 February 1993 and had given possession to the transferee. On the date of the transfer the truck was covered by a valid policy of insurance. Despite the sale of the vehicle the change of ownership was not reflected in the certificate of registration. The policy of insurance expired on 24 February 1993. Subsequently S took out an insurance policy in the name of the registered owner and it was valid and subsisting when the accident took place on 7 May 1994. The Tribunal held that no liability to pay compensation attached to J since he had ceased to be the owner of the vehicle after its sale on 2 February 1993. S alone was held to be liable for the payment of compensation to the claimants. On these facts the Bench of two judges of this Court held as follows: "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 2-2-1993." (Id at page 244) In the course of its decision, the two judge Bench referred to the earlier decision in Dr T V Jose v Chacko P M4, which had arisen under the Motor Vehicles Act 1939. In that context, this Court had held thus: "12 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. In that context, this Court had held thus: "12 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 RTO as the owner. The appellant could not escape that liability by merely joining Mr Roy Thomas in these appeals." (Id at page 244) The decision in Dr T V Jose was followed in P P Mohammed v K Rajappan. Noticing that the decision in Dr T V Jose was rendered under the Motor Vehicles Act, 1939, the Court in Pushpa held that the ratio of the decision "shall apply with equal force to the facts of the cases arising under the 1988 Act" in view of the provisions of Section 2(30) and Section 50. Consequently, the view of this Court was that the person whose name continues in the record of the registering authority as the owner of the vehicle is equally liable together with the insurer. 10. The decision of a three judge Bench of this court in Purnya Kala Devi involved a situation where the registered owner of a vehicle involved in an accident denied his liability to compensate the legal heirs of the deceased victim on the ground that the state government had requisitioned the vehicle. On the date of the accident, the vehicle stood requisitioned under the Assam Requisition and Control of Vehicles Act, 1968. The state failed to establish that the vehicle was released from requisition after service of a notice in writing to the owner, to take delivery, as required by Section 5(1) of the state Act. Under the Assam Act, it was only upon the service of a notice to that effect that no lability for compensation would lie with the requisitioning authority. The High Court absolved the state government on the basis of the definition of the expression ''owner'' in Section 2(30) of the Motor Vehicles Act, 1988. Reversing the judgment, this Court held thus: "16. the High Court, without adverting to Section 5 of the Assam Act, merely on the basis of the definition of "owner" as contained in Section 2(30) of the 1988 Act, mulcted the award payable by the owner of the vehicle. Reversing the judgment, this Court held thus: "16. the High Court, without adverting to Section 5 of the Assam Act, merely on the basis of the definition of "owner" as contained in Section 2(30) of the 1988 Act, mulcted the award payable by the owner of the vehicle. The High Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of Respondent 1 State of Assam under the provisions of the Assam Act. Therefore, Respondent 1 was squarely covered under the definition of "owner" as contained in Section 2(30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of "owner" a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hirepurchase agreement to the effect that a person in control and possession of the vehicle should be construed as the "owner" and not alone the registered owner. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that Section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act. The Tribunal also erred in accepting the allegation of Respondent 2 that the vehicle was released on the date of the accident at 10.30 a.m. and the accident occurred at 10.30 a.m. without any evidence even though in the claim petition, it was stated that the accident had occurred at 10.15 a.m." (Id at page 147) 11. The above observations would indicate that a combination of circumstances cumulatively weighed with this Court. Significantly, for the purposes of the present discussion, what emerges from the above judgment is the circumstance that the motor vehicle was on the date of the accident requisitioned by the state government. Requisitioning by its very nature is involuntary insofar as the person whose property is requisitioned is concerned. Significantly, for the purposes of the present discussion, what emerges from the above judgment is the circumstance that the motor vehicle was on the date of the accident requisitioned by the state government. Requisitioning by its very nature is involuntary insofar as the person whose property is requisitioned is concerned. This Court observed that it is the person in control and possession of a vehicle which is under an agreement of lease, hypothecation or hire purchase who is construed as the owner and not the registered owner. The same analogy was drawn to hold that where the vehicle had been requisitioned, it was the state and not the registered owner who had possession and control and would hence be held liable to compensate. Purnya Kala Devi does not hold that a person who transfers the vehicle to another but continues to be the registered owner under Section 2(30) in the records of the registering authority is absolved of liability. The situation which arose before the court in that case must be borne in mind because it was in the context of a compulsory act of requisitioning by the state that this Court held, by analogy of reasoning, that the registered owner was not liable. 12. The subsequent decision of a Bench of three judges of this Court in HDFC Bank Limited v Reshma involved an agreement of hypothecation. The Tribunal held the financier of the vehicle to jointly and severally liable together with the owner on the ground that it was under an obligation to ensure that the borrower had not neglected to get the vehicle insured. The High Court had dismissed the appeal filed by the Bank against the order of the Tribunal holding it liable together with the owner. In the appeal before this Court, Justice Dipak Misra (as the learned Chief Justice then was) adverted during the course of the judgment to the principles laid down by this Court in several earlier decisions, including of this Court. Noticing that the case before the court involved a hypothecation agreement, this Court held: "22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. Noticing that the case before the court involved a hypothecation agreement, this Court held: "22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was the subject of an agreement of hypothecation and was in possession and control of Respondent 2."(id at page 693) . Since the Second respondent was in control and possession of the vehicle this Court held that the High Court was in error in fastening the liability on the financier. The failure of the Second respondent to effect full payment for obtaining an insurance cover was neither known to the financier nor was there any collusion on its part. Consequently, the High Court was held to be in error in fastening liability on the financier. 13. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression ''owner'' in Section 2(30) , it is the person in whose name the motor vehicle stands registered who, Mohan Benefit (P) Ltd. v. Kachraji Raymalji , (1997) 9 SCC 103 ; Rajasthan SRTC v. Kailash Nath Kothari , (1997) 7 SCC 481 ; National Insurance Co. Ltd. v. Deepa Devi , (2008) 1 SCC 414 ; Mukesh K. Tripathi v. 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 [Rajasthan SRTC v. Kailash Nath Kothari , (1997) 7 SCC 481 , National Insurance Co. Ltd. v. Durdadahya Kumar Samal , (1988) 1 ACC 204 (Ori) and Bhavnagar Municipality v. Bachubhai Arjanbhai , (1996) AIR(Gujarat) 51; Godavari Finance Co. Builders (P) Ltd. v. State of Bihar , (2007) 1 SCC 467 and placed reliance on Kailash Nath Kothari [Rajasthan SRTC v. Kailash Nath Kothari , (1997) 7 SCC 481 , National Insurance Co. Ltd. v. Durdadahya Kumar Samal , (1988) 1 ACC 204 (Ori) and Bhavnagar Municipality v. Bachubhai Arjanbhai , (1996) AIR(Gujarat) 51; Godavari Finance Co. v. Degala Satyanarayanamma , (2008) 5 SCC 107 ; Pushpa v. Shakuntala , (2011) 2 SCC 240 , SCC p. 51, para 10; U.P. SRTC v. Kulsum , (2011) 8 SCC 142 ; Purnya Kala Devi v. State of Assam , (2014) 14 SCC 142 ." for the purposes of the Act, would be treated as the ''owner''. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression ''owner'' in Section 2(30) , making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was the ''owner'' of the vehicle involved in the accident within the meaning of Section 2(30) . The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi. 14. In the present case, the First respondent was the ''owner'' of the vehicle involved in the accident within the meaning of Section 2(30) . The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi. 14. The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled. 11. Now, adverting to the second contention of Mr. Dibender Gosh, Advocate , regarding appellant No.2 not being the driver of the offending vehicle at the time of accident. 12. Suffice it to say that not only a criminal case was registered against appellant No.2 on account of his rash and negligent driving, but he also stood convicted and sentenced by the competent court for the accident in question. Apart from that, it would be noticed that appellant No.2 in his affidavit, Ext.RW1/A, that was filed before the learned Tribunal, did try to claim that the vehicle was being driven by Ram Bhagat, its owner, but in his cross-examination, he admitted that he had been convicted and sentenced for the rash and negligent driving in the accident in question. He further admitted that he has not made complaint against the police for having falsely implicated him in the case. The onus to prove that appellant No.2 was not driving the offending vehicle at the relevant time solely lies upon appellant No.2 and having failed to discharge said onus, no fault can be found with the impugned award. Even otherwise, similar appeal (FAO (MVA) No.56/2013, titled as Pungu Devi and ors. vs. Hirdu Ram and ors.) filed by the appellants questioning their liability to pay compensation to the claimants has already been dismissed by this Court vide judgment dated 16.5.2018. 13. Even otherwise, similar appeal (FAO (MVA) No.56/2013, titled as Pungu Devi and ors. vs. Hirdu Ram and ors.) filed by the appellants questioning their liability to pay compensation to the claimants has already been dismissed by this Court vide judgment dated 16.5.2018. 13. Having said so, I find no merit in this appeal and the same is accordingly dismissed leaving the parties to bear their own costs. Pending application(s) if any also stands dismissed.