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2022 DIGILAW 1001 (MP)

Sushil Kumar Chaturvedi v. Bela Bai

2022-08-04

VIVEK AGARWAL

body2022
ORDER 1. This appeal is filed by the appellant/non-claimants being aggrieved of the award dated 13.8.2001, passed by learned Addl. Motor Accident Claims Tribunal, Maihar, District Satna (M.P.), allowing the Claim Petition and awarding compensation in favour of claimants on account of death of Lalji Basor, in an accident which took place on 21.10.1992. 2. It has come on record that deceased Lalji Basor was 32 years of age on the date of the accident when accident took place with a Matador bearing registration No.MP-19-C/9355, which was driven by Ramkaran, licenced driver and owned by the respondent No.4 before the learned Claims Tribunal, namely, Ramesh Singh, Manager of Star Automobiles, Mukhtyarganj, District Satna. It has come on record that income of the deceased was about Rs.2,000/- per month, out of which he was spending Rs.1500/- on the upkeep and welfare of his family. 3. On 21.10.1992, Lalji was visiting Maihar on his bicycle from his Village Dhatoora to purchase necessary provisions when on Maihar-Katni road close to Village Dasaipur, driver Ramkaran came driving with said Matador in a rash and negligent manner and hit the bicycle driven by Lalji, resulting in grievous injuries, causing his instant death. A Criminal Case was registered at Police Station Maihar. Non-claimant-Sushil Kumar was shown as registered owner of the said vehicle, who obtained vehicle on Supurdgi. A Claim Petition was filed on 4.12.1992 and thereafter, in the year 1996, name of non-applicant No.4 Ramesh Singh was added. 4. Non-applicants No. 1 and 2 filed a common written statement, disputing the fact of ownership of Sushil Kumar Chaturvedi and informed that vehicle was obtained on hire purchase from the non-applicant No.4. 5. Learned counsel for appellant Sushil Kumar Chaturvedi, submits that since the agreement in question cannot be termed to be a hire purchase agreement in terms of provisions contained in Hire Purchase Act, 1972, which in any case stood repealed in the year 2005 and as there is no clause of present appellant becoming owner of the vehicle in question on payment of hire instalments, theefore, the liability should have been fixed on the non-applicant No.4, i.e. Star Automobile and not on appellant-Sushil Kumar Chaturvedi. 6. Attention is drawn to Ex.D/2 agreement drawn between Star Automobiles and appellant-Sushil Kumar Chaturvedi to suggest that name of the owner is mentioned as Star Automobiles. 6. Attention is drawn to Ex.D/2 agreement drawn between Star Automobiles and appellant-Sushil Kumar Chaturvedi to suggest that name of the owner is mentioned as Star Automobiles. It was hired out by the first party in favour of second party. Reading para 4 of the agreement, it is pointed out that there is a stipulation that an amount of security deposit will be refunded by the owner to the hirer on the satisfactory completion of the agreement and return of the said vehicle at Satna by the hirer. Reading this clause, it is submitted that appellant cannot be treated as hirer. Reliance is placed on the judgment of Hon'ble Supreme Court in Damodar Valley Corporation v. The State of Bihar ( AIR 1961 SC 440 ), wherein Constitution Bench of Hon'ble Supreme Court held that mere contract of hiring, without more, is a species of the contract of bailment which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half century or more and has introduced a number of variations, thus leading to categories and it becomes a question of some nicety as to which category a particular contract between the parties. 7. Drawing attention to para 11 of the said judgment, it is submitted that for the purpose of determining as to which category a particular contract comes under, the Court will look at the substance of the agreement and not at the mere words "describing the category". One of the test to determine the question whether a particular agreement is a contract of mere hiring or whether it is a contract of purchase on a system of deferred payments of the purchase price is whether there is any binding obligations on the hirer to purchase the goods. Another useful test to determine such a controversy is whether there is a right reserved to the hirer to return the goods at any time during the subsistence of the contract. If there is such a right reserved, then clearly there is no contract of sale, vide [Helby v. Matthews (1895) A.C. 471]. 8. Another useful test to determine such a controversy is whether there is a right reserved to the hirer to return the goods at any time during the subsistence of the contract. If there is such a right reserved, then clearly there is no contract of sale, vide [Helby v. Matthews (1895) A.C. 471]. 8. On the other hand, learned counsel for respondent No.7, Shri Pramod Sahu, has drawn attention of this Court to the judgment of Rajasthan High Court in Murari Lal v. Gomati Devi [( 1986 ACJ 316 )], wherein it is held that words and phrases "owner" i.e. the real owner and registered owner, it is held that the person who is in possession/incharge of the vehicle and who is dealing with the vehicle for his benefit, is the owner as defined in section 2(19) of the Motor Vehicles Act. 9. Similarly, reliance is placed on the judgment of Hon'ble Supreme Court in Naveen Kumar v. Vijay Kumar and others [(2018) 3 SCC1], wherein it is held that "owner" under section 2(30) of Motor Vehicles Act, 1988 that continuance of name of registered owner of vehicle in records of Registering Authority despite sale/transfer of vehicle by him. It is held that situation is to be distinguished where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation or is under requisition. It is held that 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. The latter part of the definition in section 2(30) of the Motor Vehicles Act, 1988 is in the nature of an expansion which applies where the motor vehicle is the subject of a hire purchase agreement or of an agreement of lease or hypothecation. 10. Reliance is also placed on the judgment of Hon'ble Supreme Court in HDFC Bank Limited v. Reshma and others [ (2015) 3 SCC 679 ], wherein it is again held that where the motor vehicle is subject of hire purchase agreement or an agreement of hypothecation, the person in possession of the vehicle under the agreement is the owner. 11. Shri D.N. Shukla, learned counsel for the respondent No.6, supports the award. 12. 11. Shri D.N. Shukla, learned counsel for the respondent No.6, supports the award. 12. After hearing learned counsel for the parties and going through the record, so also the agreement Ex.D/2, it is evident that Clause-3 of the agreement Ex.P/2, itself reads as under :-- "3. That the party of the first part shall not be responsible for any kind of accident etc. committed by the party of the second part of for any kind of unlawful activities indulged into by the said party and that the party of the first to part shall in no way be responsible for the same and that the party of the second part shall be wholly and solely responsible for all such deeds and acts and also for keeping the vehicle comprehensively insured during the period of hiring and timely payment of road taxes." 13. When Clause-4 and 5 of the agreement are read in toto, then it is evident that it is a hire purchase agreement and not an agreement simplicitor as is further magnified by the guarantee letter Ex.P/3, where it is clearly mentioned that appellant-Sushil Kumar Chaturvedi S/o Rammilan is purchasing vehicle from M/s Star Automobiles on credit for 24 months and one Badri Prasad had stood a guarantor for repayment of the value and had pledged his land. Thus, reading clauses of the agreement in isolation will be of no help to the present appellant. 14. Shri N.K. Sharma, witness of non-applicant No.4-Ramesh Singh, admitted that he or his Company had not taken the vehicle in question on Supurdginama and it was in possession of appellant-Sushil Kumar Chaturvedi only. In cross-examination, he had admitted that the hirer was required to pay 24 installments over two years. appellant Sushil Kumar Chaturvedi, admittedly did not examine any witness to dispute the contents of the agreement and, therefore, at this appellate stage, this plea of not being a hirer and that in terms of the law laid down by the Supreme Court in Damodar Valley Corporation (supra), which has relied on the judgment in case of Helby Matthews (supra), and held that if a right is reserved to the hirer to return the goods at any time during the subsistence of the contract, then clearly there is no contract of sale. 15. 15. A perusal of the agreement, relevant clauses of which have been reproduced above, it is evident that a text of refund of the security deposit by the owner to the hirer on the satisfactory completion of the agreement and return of the said vehicle at Satna by the hirer. Thus, it does not stipulate right to the hirer to return the goods at any time during the subsistence of the contract and when this is read with letter of guarantee, then it is abundantly clear that principles laid down in Helby Mattews (supra), is not applicable in the present case and, therefore, appellant being in possession of the vehicle at the time of accident under a hire purchase agreement is liable to compensate the claimants. Therefore, there is no error apparent in the impugned award fixing liability of the possessor, namely, the appellant as the owner in terms of the provisions contained in section 2(30) of the Motor Vehicles Act, 1988. 16. Nobody is appearing for the claimants, but in the light of New India Assurance Company Ltd. v. Kalpana (Smt.) and others [ 2007 ACJ 825 (SC)], this Court can do complete justice between the parties by modifying the award. Therefore, this Court is of the opinion that Tribunal has considered income of the deceased to be Rs.15,000/- per annum and has accepted that one third amount was being spent by the deceased on self and, therefore, taken dependency at Rs.10,000/- per annum. 17. It has come on record that deceased at the time of accident was working as Rajmistri. 18. The Claim Petition was filed under section 166 of the Motor Vehicles Act, 1988. Therefore, 40% is to be added towards the future prospects in the light of law laid down by the Supreme Court in National Insurance Company v. Pranay Sethi [ (2017) 16 SCC 680 ]. Therefore, annual dependency of the family will come out to Rs.14,000/- per annum. Multiplier of 16 will be applicable in place of 14 applied by the learned Claims Tribunal and, therefore, total pecuniary compensation will come out to Rs.2,24,000/- (Rupees Two Lacs, Twenty Four Thousand). Over and above which learned Tribunal has awarded a sum of Rs.27,000/-(Rupees Twenty Seven Thousand) under different heads of non-pecuniary compensation etc. which will be kept intact taking total compensation of Rs.2,24,000/- in place of Rs.1,67,000/-(Rupees One Lacs Sixty Seven Thousand). Over and above which learned Tribunal has awarded a sum of Rs.27,000/-(Rupees Twenty Seven Thousand) under different heads of non-pecuniary compensation etc. which will be kept intact taking total compensation of Rs.2,24,000/- in place of Rs.1,67,000/-(Rupees One Lacs Sixty Seven Thousand). Thus, there will be enhancement of Rs.84,000/-(Rupees Eighty Four Thousand) in favour of the claimants which will also earn interest @ 9% per annum from the date of filing of the Claim Petition till the date of actual payment. Other terms and conditions of the award shall remain intact. 19. In the above terms, this appeal stands disposed of. 20. Let record of the learned Claims Tribunal be sent back.