Biswajit Das vs Shuvharung Reang and Others

Deepak Gupta, C.J.

This appeal by the registered owner of the vehicle is directed against the award dated 21.3.2012 delivered by the learned Motor Accident Claims Tribunal, Dharmanagar, North Tripura, whereby he awarded a sum of Rs. 1,88,000/- as compensation in favour of the claimants and held the appellant (registered owner) liable to pay this amount.

The undisputed facts are that deceased Harendra Reang was traveling in a Commander Jeep bearing registration No. TR02-2715 which was driven by its driver at a high speed. According to the averments made in the claim petition, when this vehicle was being driven at a high speed it suddenly dashed against some Army vehicle number of which could not be traced out and as a result, Harendra Reang died at the spot itself.

Originally Sri. Biswajit Das was shown to be the owner of the vehicle and Litan Nath shown to be the driver of the vehicle. Written statement was fled by Sri Biswajit Das in which he stated that he was originally the owner of the vehicle but that he had sold the vehicle vide agreement dated 01.9.2009 to one Sri Jagadish Purkayastha in the presence of witnesses and thereafter, he had handed over the possession and management of the said vehicle to Sri Jagadish Purkayastha on 01.9.2009 for a period of three years till 01.9.2012. It would be pertinent to mention that the alleged driver of the vehicle Sri Litan Nath also fled a written statement where he denied all the allegations made in the claim petition. In the reply he also stated that he had come to learn that Sri Biswajit Das was not the owner of the vehicle and that from 01.9.2009 one Sri Jagadish Purkayastha of Village & Post Office, Panisagar, Dharmanagar had taken over possession and management of the said vehicle as per agreement on monthly basis for three years.

After the written statement was fled the claimants amended the claim petition and by amendment Sri Jagadish Purkayastha was added as a respondent. He was duly served in the case but did not put in appearance before the trial Court and was proceeded against ex-parte. Before the learned trial Court evidence was led but Sri Biswajit Das did not appear in the witness box to put forth his case. The learned Tribunal on the basis of the material on record came to the conclusion that since the present appellant Sri Biswajit Das was the registered owner of the vehicle he could not escape the liability to pay compensation.

The appeal was fled in the year 2012 and thereafter, in the year 2013 one application under Order XLI Rule 27 being CM APPLN No. 577 of 2013 has been fled in which it is mentioned that at the time when the written statement was fled the original agreement could not be traced out by the petitioner and therefore, the same could not be submitted with the learned Motor Accident Claims Tribunal. It is further stated that only a xerox copy of the agreement was available but the original could not be found by the petitioner and so the original could not be submitted. It is further stated that the learned counsel for the petitioner informed him that the xerox copy of the agreement would not be accepted in evidence by the learned Motor Accident Claims Tribunal. According to him, on further search the original documents were traced out from the papers of his elder daughter studying in Class-X and the same were found during puja vacation in the school and the documents were then fled in the High Court. The document is a purported agreement between Biswajit Das and Jagadish Purkayastha whereby Biswajit Das had hired out the Commander Jeep TR02-2715 to Jagadish Purkayastha at monthly hire charge of Rs. 3,500/- per month for a period of three years. It was also a term of the agreement that after three years the Jeep would be returned to Biswajit Das. The liability during this period was to be of Jagadish Purkayastha.

I am not at all satisfied by the reasoning given with regard to non-production of the agreement before the learned trial Court. Even as per the averments made in the application a photocopy of the agreement was available with the petitioner though he did not have the original. If that had been the case then an application for leading secondary evidence could have been fled. If the original of a document goes missing then it is expected that any counsel would have such basic knowledge of law that he would advise his client that if the original is missing the client can apply for proving the document by leading secondary evidence. That was not done. Moreover, during the trial Biswajit Das did not even care to step into the witness box. He could have at least orally stated that he had entered into a particular agreement. He did not do so at that stage also. Now it is too late in the day for Sri Biswajit Das to urge that this document be taken on record.

Order XLI Rule 27 is not meant to help indolent and lazy litigants. Recourse to Order XLI Rule 27 can only be taken if the party satisfies that despite exercise of due diligence the evidence could not be discovered. Other than making a bald statement in the application that the original was lost nothing has been stated. If the original had been lost why was an FIR not fled? At least a G.D. entry should have been got recorded that the original is not traceable. Order XLI Rule 27 can also be taken recourse to if the Court feels that such a document is necessary to decide the case. In my view, it is not necessary to go into this document for the purpose of this case because even if such document is held to be proved to be correct then also the appellant cannot escape the liability to pay the compensation.

The appellant continues to be the registered owner of the vehicle in the registration record. Even the agreement as fled does not show that he has sold the vehicle. He has only hired out the vehicle to some other person. The appellant does not cease to be the owner of the vehicle. Assuming that the agreement is valid and was acted upon, all it shows is that the management of the vehicle was handed over to some other person. This, however, will not mean that the appellant can be exonerated of his liability.

In this regard reference may be made to Sections 50 and 51 of the Motor Vehicles Act, 1988 which deal with transfer of vehicles. Relevant portion of Section 50 of the Act reads 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 acknowledgment received by the transferee if he has sent an application in this behalf by registered post acknowledgment 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--

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(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.

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(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."

Sub-clause (i) of sub-section (1) of Section 50 lays down that in the case of a registered vehicle, the registered owner within 14 days of the transfer must inform the registering authority that he has transferred the vehicle and shall give details thereof. In case the vehicle is registered outside the State then such intimation has to be given within 45 days. The transferee is also under a legal obligation to report the fact of his having taken over the vehicle within 30 days of the transfer.

This matter has been considered in a number of judgments. As Judge of the High Court of Himachal Pradesh, I had dealt with this issue in Shiv Lal v. Kahnu Ram and others, , 2006 ACJ 2465. In that case the vehicle had been transferred before the accident took place. The transferee also did not deny the fact that the transfer had been affected but it was held on reading of Section 50 and the case law that the registered owner continues to be liable and cannot escape his liability unless he follows the provisions of Section 50 and informs the registering and licensing authorities about the factum of transfer. The view taken by me as single Judge of the High Court was confirmed by a Division Bench of which I was member in Iswar Lal Choudhury and Anr. v. National Insurance Company, AIR 2008 (NOC) 2688.

In Imran Ansari v. Hajrat Ali Ansari, , 2004 ACJ 1056 (Jharkhand High Court) it was held that a person whose name was entered in the registration certificate would be deemed to be the owner of the vehicle for all purposes. Similarly, in S.N. Shanmugham v. Shankarlal Jain, , 2004 ACJ 1346(Madras) the Madras High Court held that the registered owner would continue to be liable till the registration is changed in the registration record.

In fact this position of law stands settled by the judgment of the Apex Court in Dr. T.V. Jose v. Chacko P.M., , 2001 ACJ 2059 (SC). In that case, the accident occurred on 9.4.1987. The appellant claimed that he had sold the car on 7.5.1986 to one ''M''. ''M'' had then to sold the car on 12.5.1986 to one ''A''. On 15.8.1986, ''A'' sold the car to ''G'' and on 18.8.1986 ''G'' sold the car to Roy Thomas. It was, thus, claimed that on the date of the accident the car belonged to Roy Thomas but on the registration certificate the name of the appellant continued to be shown as owner. The Apex Court, in Para 10 of the judgment held as follows:

"(10) We agree with Mr. Iyer that the High Court was not right in holding that the appellant continued to be the owner as the name had not been changed in the records of R.T.O. 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 R.T.O. as owner. The appellant could not escape that liability by merely joining Roy Thomas in these appeals. Roy Thomas was not a party either before M.A.C.T. or the High Court. In these appeals we cannot and will not go into the question of inter se liability between the appellant and Roy Thomas. It will be for appellant to adopt appropriate proceedings against Roy Thomas if in law, he is entitled to do so."

Thereafter the Apex Court in P.P. Mohammed v. K. Rajappan, 2003 ACJ 1595 (SC), settled the matter after considering the earlier judgments rendered in Rajasthan State Road Trans. Corpn. v. Kailash Nath Kothari, , 1997 ACJ 1148 (SC) and the judgment in T.V. Jose''s case (supra) the Supreme Court held as follows:

"(4) These appeals are fled by the appellant. The insurance company has chosen not to file any appeal. The question before this court is whether by reason of the fact that the vehicle has been transferred to respondent No. 4 and thereafter to respondent No. 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this court in case of Dr. T.V. Jose v. Chacko P. M., , 2001 ACJ 2059 (SC), wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that by itself would not absolve the party, in whose name the vehicle stands in the R.T.O. records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the appellant stands absolved of his liability to a third person. So long as his name continues in R.T.O. records, he remains liable to a third person.

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The above said observation is in the context of this question. All that was being considered in this case was the rights of the original owner vis-�-vis those of the transferee. Also the final decision is based on the terms of the contract between the parties. Therefore, they cannot be drawn out of the context. It will accordingly have to be held that the appellant as the person, in whose name registration continues, will remain liable to a third person. However, the person in actual possession would also be liable."

The law is very clear that the registered owner of the vehicle cannot escape his liability to pay compensation to third parties even after transfer of the vehicle unless the registered owner follows the procedure laid down in Section 50 and intimates the registering authority about the transfer of the vehicle. The purpose of Section 50 is to ensure that in the official record somebody shown as the registered owner. Third parties are not concerned with inter se transfers. The owner who is shown to be registered owner continues to be liable even if he has sold the vehicle but has not got the transfer dully affected in terms of Section 50 of the Motor Vehicles Act, 1988.

In view of the above discussion, the appellant cannot escape his liability to pay compensation. Therefore, I am not entering into the inter se dispute between the appellant and Sri Purkayastha. In case the appellant on the basis of the agreement feels that he is entitled to recover the amount which he pays pursuant to the award from Sri Purkayastha he may file a Civil Suit for recovery of the said amount in accordance with the agreement. This agreement, first of all, is not an agreement for change of ownership. It is only an agreement for transfer of management of the vehicle. Secondly, this is an agreement inter se the parties which will not bind the third parties. Therefore, the appeal is dismissed with the only modification that in case after paying the amount of compensation the petitioner wants to recover the same from respondent No. 8, Sri Jagadish Purkayastha in accordance with the terms of the alleged agreement, he may file a civil suit which Sri Purkayastha will have a right to defend in accordance with law.

Send down the LCRs forthwith.