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2019 DIGILAW 1629 (KAR)

C. N. Ramachandra Shetty v. A. L. Narsinga

2019-07-08

H.B.PRABHAKARA SASTRY

body2019
JUDGMENT : H.B. Prabhakara Sastry, J. 1. It is a plaintiff's appeal. The present appellant as a plaintiff in O.S.No.10423/2006 filed against the present respondent in the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH-14) (hereinafter for brevity referred to as the "Trial Court") had sought for recovery of a sum of Rs. 1,04,500/- together with costs and interest at the rate of Rs. 12% per annum from the defendant. 2. The summary of the case of the plaintiff in the Trial Court was that, he was the registered owner of a Scooter bearing Registration No.MEN-8320 and had sold the said Scooter by delivering the possession of the said Scooter to the defendant on 02-04-1992, in which regard, the defendant had given him a delivery receipt acknowledging taking delivery of the Scooter. The plaintiff had also given Form No.29 and Form No.30 duly executed by him to enable the defendant to get the transfer of registration of the vehicle in his name. The Insurance certificate, tax card, registration certificate documents were all delivered to the defendant by the plaintiff at the time of delivering his Scooter. The said vehicle met with a road traffic accident near Vijayanagar, Bengaluru on 05-07-1994, wherein a pedestrian by name Smt. Rajamma, W/o. Mallaiah sustained injuries. She filed a claim petition before the learned XI Additional Judge, Motor Accident Claims Tribunal at Bangaloru (SCCH-12) (hereinafter for brevity referred to as the 'MACT') in M.V.C.No.3204/1994 against the plaintiff and one Sri.V. Jayaram, arraigning them as the owner and rider of the offending vehicle, i.e. Scooter, respectively. According to the plaintiff, an ex-parte judgment and award was passed in the claim petition by the Motor Accident Claims Tribunal holding the respondents before it jointly and severally liable to pay to the claimant therein, a sum of Rs. 73,500/- with interest at Rs. 8% per annum. The claimant Smt. Rajamma filed an Execution Petition in Execution Case No.1131/2003 for recovery of the award amount. According to the plaintiff, it is only thereafter he came to know about the claim made against him and the award passed against him. Challenging the said award, the plaintiff filed a Miscellaneous petition before the Small Causes Court on 12-05-2005 along with an application under Order XXI Rule 26 r/w. Section 151 of the Code of Civil Procedure,1908, for stay of the judgment and award passed in M.V.C.No.3204/1994. Challenging the said award, the plaintiff filed a Miscellaneous petition before the Small Causes Court on 12-05-2005 along with an application under Order XXI Rule 26 r/w. Section 151 of the Code of Civil Procedure,1908, for stay of the judgment and award passed in M.V.C.No.3204/1994. The said application came to be rejected. The plaintiff preferred a writ petition before this Court in W.P.No.23932/2005 which also came to be dismissed. Having no other alternative, the plaintiff settled the claim with the claimant for a sum of Rs. 80,000/- in Execution Petition and the said amount was paid by him to the claimant. It is thereafter the plaintiff got issued a legal notice upon the defendant calling upon him to make good the amount paid by him to the claimant in M.V.C.No.3204/1994, since the defendant was the purchaser of the said Scooter and owning it as on the date of accident. However, the defendant did not respond to the said notice. As such, the plaintiff was constrained to institute a suit against him for recovery of money. 3. In response to the summons served upon him, the defendant appeared through his counsel and filed his Written Statement, wherein he categorically denied that he had purchased the Scooter from the plaintiff and got issued to him Form No.29 and Form No.30 duly executed by the plaintiff. He also denied that he had issued a delivery receipt to the plaintiff. He denied his alleged liability under the suit. 4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:- "[1] Whether the plaintiff proves that he was the registered owner of the Scooter bearing Registration No.MEN 8320? [2] Whether the plaintiff further proves that on 2.4.1992 he had sold and delivered possession of the said Scooter to the defendant along with the documents and the defendant had passed delivery receipt for having taken the delivery of the said Scooter? [3] Whether the plaintiff further proves that while handing over the said documents he had also signed and delivered to the defendant Form Nos.29 and 30 to enable the defendant to get the Scooter transferred in his name in the certificate of registration? [4] Whether the plaintiff further proves that he had delivered to the defendant valid insurance certificate, tax card, registration certificate also? [4] Whether the plaintiff further proves that he had delivered to the defendant valid insurance certificate, tax card, registration certificate also? [5] Whether the plaintiff further proves that he came to know on 15.4.2005 when the court bailiff came to his house to execute the attachment warrant of the movables in Ex. Case No.1131/2003 about one Sri. V. Jayaram having caused traffic accident on 5.7.2004 at about 7:05 a.m. that resulted in dashing against Smt. Rajamma, W/o. Mallaiah who in turn was successful in obtaining the award on the strength of the petition that came to be filed on 23.12.1994 before the MACT and that the MACT had passed order on 18.1.2003 directing him to pay sum of Rs.73,500/- together with interest at the rate of 18% p.a.? [6] Whether the plaintiff further proves that inspite of preferring Misc. in said Ex. Case and writ petition before the Hon'ble High Court of Karnataka vide No.23932/2005 to challenge the said award he could not succeed? [7] Whether the plaintiff further proves that as per the settlement in the said case he had paid Rs.80,000/- to the said decree holder on 22.6.2006 and obtained the receipt? [8] Whether the plaintiff further proves that he had also spent in preferring the said Mis.Case and in preferring the said writ petition vide No.23932/05 sum of Rs.20,000/-? [9] Whether the plaintiff further proves that the defendant is solely liable to pay the said amounts of Rs.80,000/- and Rs.20,000/- respectively together with interest at the rate of 12% per month? [10] Whether the defendant proves that the suit is not properly valued and the court fee paid is insufficient? [11] Whether the defendant is entitled to exemplary costs under Sec.35-A of CPC? [12] What order or decree?" In support of his contention, the plaintiff got himself examined as PW-1 and got marked documents from Exhibits P-1 to P-13. The defendant got himself examined as DW-1 and no documents were got marked as exhibits from his side. 5. The Trial Court, after hearing both side, by its impugned judgment and decree dated 28-03-2011 answered issue No.7 in the 'affirmative', issue Nos.1, 2, 3, 4, 8, 9, 10 and 11 in the 'negative' and issue Nos.5 and 6 as 'does not arise' and proceeded to dismiss the suit of the plaintiff. It is against the said judgment and decree, the plaintiff has preferred this appeal. 6. It is against the said judgment and decree, the plaintiff has preferred this appeal. 6. The Lower Court records were called for and the same are placed before this Court. 7. Heard the arguments of the learned counsel for appellant, learned counsel for respondent and perused the material placed before this Court including the memorandum of appeal and the impugned judgment. 8. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. 9. After hearing the learned counsels from both side and going through the material on record, the only point that arise for my consideration is: "Whether the judgment and decree under appeal deserves any interference at the hands of this Court?" 10. The learned counsel for the appellant/plaintiff in his argument submitted that, the document at Ex.P-1 which is a 'delivery note' executed and issued by the defendant clearly goes to show that the defendant had purchased a Scooter in question from the plaintiff on 02-04-1992 and taken delivery of the said vehicle, as such, as on the date of the road traffic accident, it was the defendant who was the owner of the vehicle. Merely because the transfer of ownership was not recorded in the Registration Certificate (R.C.Book) which was at the fault of the defendant, the claim amount had to be settled by the plaintiff, as such, the defendant is liable to pay the said amount to the plaintiff, who was not the owner of the vehicle, as on the date of accident. 11. Per contra, learned counsel for the respondent/defendant in his argument submitted that, the defendant has categorically denied of he executing the 'delivery note' at Ex.P-1. It is not established that Ex.P-1 was executed by the defendant. He further submitted that by virtue of Section 50(1)(a)(i) of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as "M.V. Act") and by virtue of Rule 55 of the Central Motor Vehicles Rules, 1989 (hereinafter for brevity referred to as "Central M.V. Rules"), unless and until Form No.29 and Form No.30 are filed with the Registration Authority and transfer of ownership is duly recorded in the Registration Certificate by the Regional Transport Officer, the defendant cannot be held as the owner of his vehicle as on the date of accident. As such, the MACT has rightly held that the present plaintiff alone as the owner of the offending vehicle and he along with the rider of the motor vehicle were liable to the claimant. 12. The evidence of PW-1 would in no way improve the case of the plaintiff than what it is stated in his plaint. It is his contention throughout that he had sold the vehicle to the defendant in which regard, the defendant had executed a 'delivery note' as per Ex.P-1. In his support, the plaintiff has also got produced various other documents like the certified copy of the judgment dated 18-01-2003 passed in M.V.C.No. 3204/1994, certified copy of the award in the said case at Ex.P-3, certified copy of the petition in Execution Case No.1131/2003 at Ex.P-4, certified copy of the order dated 20-08-2005 passed in Execution Case No. 1131/2003 at Ex.P-5, certified copy of the order dated 16-06-2006 passed by this Court in Writ Petition No.23932/2005 at Ex.P-6 and the office copy of the legal notice dated 26-06-2006 at Ex.P-12 and postal acknowledgement at Ex.P-13. 13. From a perusal of those exhibits marked as documents, more particularly, from Exs.P-2 to P-13, it could only go to show that with respect to Scooter in question, i.e. a two wheeler bearing Registration No.MEN-8320, a road traffic accident had taken place on 05-07-1994, whereunder, one Smt. Rajamma had sustained injuries and had filed a claim petition before the MACT under Section 166 of the M.V. Act against the plaintiff and one Sr.V. Jayaram arraigning them as owner and rider of the Scooter respectively. The said claim petition came to be allowed and both the respondents therein were jointly and severally held liable to pay a total compensation of a sum of Rs. 73,500/- with interest at Rs. 8% per annum to said Smt. Rajamma. 14. It further goes to show that the present plaintiff as an R.C. Book holder and judgment debtor in the said claim petition paid an amount of a sum of Rs. 80,000/- to the claimant and settled the matter in the Execution Case No.1131/2003. 15. The defendant as DW-1 has reiterated his contention in his evidence and stated that he has never purchased the Scooter in question from the plaintiff and that he has not delivered Ex.P-1 to the plaintiff. 80,000/- to the claimant and settled the matter in the Execution Case No.1131/2003. 15. The defendant as DW-1 has reiterated his contention in his evidence and stated that he has never purchased the Scooter in question from the plaintiff and that he has not delivered Ex.P-1 to the plaintiff. He has expressed his ignorance about the alleged road traffic accident and settlement of claim by the plaintiff with the claimant - Smt. Rajamma. 16. The admitted fact remains that as on the date of the road traffic accident, which is said to have occurred on 05-07-1994, the Registration Certificate of the Scooter bearing Registration No.MEN-8320 was standing in the name of the plaintiff. Though the plaintiff contends that he had sold the said vehicle to the defendant, but to prove the same, except Ex.P-1 which is shown to be a 'delivery note', the plaintiff has not produced any other document. Further, the defendant has categorically disputed that the said Ex.P-1 was ever executed by him. The signature of the executant marked at Ex.P-1(a) in the said document when confronted to DW-1 has not been admitted by him as his signature. As such, Ex.P-1 remains to be a disputed document and the plaintiff could not succeed to establish that the said document was executed by the defendant in his favour. Therefore, Ex.P-1 which is a 'delivery note' would not come to the help of the plaintiff in his case. 17. The transfer of the Motor Vehicles is governed by the Motor Vehicles Act, 1988 and the Central Motor Vehicles Rules, 1989 framed thereunder. Section 50 (1)(a)(i) of the M.V. Act reads as below:- "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." 18. Based on the said Act, Rule 55 of the Central Motor vehicles Rules, 1989 reads as below:- "55. Based on the said Act, Rule 55 of the Central Motor vehicles Rules, 1989 reads as below:- "55. Transfer of Ownership (1) Where the ownership of a motor vehicle is transferred, the transferer shall report the fact of transfer in Form 29 to the registering authorities concerned in whose jurisdiction the transferor and the transferee reside or have their place of business. (2) An application for the transfer of ownership of a motor vehicle under sub-clause (i) of clause (a) of sub-section (1) of Section 50 shall be made by the transferee in Form 30, and shall be accompanied by (i) the certificate of registration; (ii) the certificate of insurance; and (iii) the appropriate fee as specified in rule 81. (3) An application for transfer of ownership of a motor vehicle under sub-clause (ii) of clause (a) of sub-section (1) of Section 50 shall be made by the transferee in Form 30 and shall, in addition to the documents and fee referred to in sub-rule(2), be accompanied by one of the following documents, namely:- (a) a no-objection certificate granted by the registering authority under subsection (3) of section 48; or (b) an order of the registering authority refusing to grant the no objection certificate under sub-section (3) of section 48; or (c) where the no objection certificate or the order, as the case may be, has not been received, a declaration by the transferor that he has not received any such communication together with- (i) the receipt obtained from the registering authority under sub-section (2) of section 48; or (ii) the postal acknowledgment received from the registering authority where the application for no-objection certificate has been sent by post." A combined reading of the above two provisions as applicable to the case on hand, makes it very clear that any transfer of ownership of a motor vehicle would be recognized and can be effected only when the transferor reports the said transfer to the concerned registering authorities by submitting Form No.29 duly executed in that connection. The said report of the transfer has to be made by the transferor to the concerned registering authority within fourteen days of such transfer. In the instant case, according to the plaintiff, the sale of the Scooter was made by him in favour of the defendant on 02-04-1992 and the road traffic accident took place on 05-07-1994. The said report of the transfer has to be made by the transferor to the concerned registering authority within fourteen days of such transfer. In the instant case, according to the plaintiff, the sale of the Scooter was made by him in favour of the defendant on 02-04-1992 and the road traffic accident took place on 05-07-1994. Thus, for more than two years three months, i.e. till the date of accident, the transferor i.e. the plaintiff had not informed or intimated the concerned Registering authority about the transfer of ownership of the vehicle in favour of the defendant. It is for the said reason, even in the motor vehicle case claim petition also, the present plaintiff has been arraigned as a respondent. Admittedly it is only the present plaintiff joined by the rider of the two wheeler were shown as owner and rider of the offending vehicle respectively. 19. Interestingly, though the plaintiff claims that he was not notified with respect to the said claim petition, but the fact remains that, he did not contest the said claim petition. He did not even take any steps to implead the defendant in the said claim petition bringing to the notice of the Claims Tribunal that he was not the owner of the Scooter as on the date of accident but it was defendant. Therefore, when the plaintiff had a statutory obligation to report about the transfer of the vehicle to the concerned registering authority within fourteen days of the alleged transfer, he has not done it. Further, though he had every opportunity to implead the alleged true owner of the Scooter in the motor vehicle claim petition also, he did not evince any interest. Admittedly, his attempt for bringing the defendant on record, for the first time in the execution case by filing an application under Order XLI, Rule 26 of the Civil Procedure Code also came to be rejected. His effort before this Court in Writ Petition No.23932/2005 also did not give him any relief. Thus, the summary is that, the plaintiff continued to be the owner of the offending vehicle as on the date of road traffic accident that occurred on 05-07-1994. His averment that on the said date, de facto, it was the defendant who was the owner of the offending vehicle, could not be established by him in the Trial Court. Thus, the summary is that, the plaintiff continued to be the owner of the offending vehicle as on the date of road traffic accident that occurred on 05-07-1994. His averment that on the said date, de facto, it was the defendant who was the owner of the offending vehicle, could not be established by him in the Trial Court. As such, by no stretch of imagination, it could be held that, the defendant who remains to be a stranger to the vehicle and the alleged road traffic accident, is liable and can be burdened with paying any money much less the compensation amount as a reimbursement to the plaintiff. Thus, the Trial Court even though has assigned some other reasons for dismissing the suit of the plaintiff on its merit, but, its ultimate finding that the plaintiff could not succeed in the suit, cannot be found fault with. Accordingly, I proceed to pass the following:- ORDER [i] The appeal is dismissed; [ii] The judgment and decree dated 28-03-2011 passed in O.S.No.10423/2006 by the learned XXXI Additional City Civil Judge, Bangalore City (CCH-14), is hereby confirmed; [iii] There is no order as to costs. Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.