Paulus alias Balan vs Natarajan and Others

Sathiadev, J.—This appeal is preferred by the petitioner in MACP No.,9 of 1975 on the file of the District Judge, Kanyakumar. Ranking of

parties will be as referred to as in the Tribunal. He was injured in an accident which occurRed at 7.30 a.m., on September 5,1972, at Edaicode on

the Melpuram-Panichamood Road, when he was going on a bicycle from the north to the south on the eastern side of the road., At that time, the

car bearing registration number TMC 5488 came from the opposite direction and dashed against him causing freievous injuries. he was an in-

patient in the hospital from September 5,1972, to September 18, 197, and took treatment as an out-patient until JUly 5,1973. The first respondent

was convicted by the criminal court under Sections 279 and 338, Indian penal Code. Due to the accident, the petitioner had sustained permanent

disability including cerebral concussion and partial loss of hearing and sight, and he could not continue his studies and he is not fit to do any manual

work. Hence, he had claimed a total compensation of Rs. 50,000.

This claim was opposed by the first respondent, the driver of the vehicle, the second respondent, the registered owner of the vehicle, and the

third respondent, the insurance company, stating that the car was driven with due care and caution, and it was only the petitioner who was at fault.

The second respondent stated that he was never the owner of the car, and it was only under the control and use of one Padmanabha Nadar and

that the first respondent was not his employee,and,therefore, he is not liable to damages. the insurer denied rash and negligent driving of the vehicle

and claimed that the second respondent has sold the vehicle long prior to to the occurrence, and, therefore, it is not liable to pay any

compensation.

The Tribunal held that the accident was due to the rash and negligent driving of the car by the first respondent, and as for the quantum of

damages, it fixed it at Rs.26,100 and about the liability of respondents Nos,2 and 3, it held that the second respondent was not the owner of the

vehicle, though the registration certificate and the insurance certificate stood in his name, and the third respondent is also obsolved because the

actual owner of the vehicle, Padmanabha nadar, had not insured the vehicle with it. Hence, it passed a decree only as against the first respondent-

driver.

Learned counsel for the petitioner-appellant first submits that the finding of the Tribunal about the non-liability of respondents Nos,2 and 3 is

beset with illegalities. he reads through the evidence of the second respondent and contends that the claims made by him had been accepted in toto

even though there is no corroboration about the claims made by him, and more particularly, in the absence of padmanabha Nadar having been

examined in support of his claim. No documentary evidence having been filed to disclose about transfer of ownership, and admittedly, when the

registration certificate and the insurance certificate also stood only in the name of the second respondent, his liability had not been rightly fastened.

Mr.Verghese, learned counsel appearing for the second respondent. relies upon the decisions in The South India Insurance Co., Bombay Vs.

Lakshmi and Others, , Automobiles Transport (Rajasthan) Pvt. Ltd. and Another Vs. Dewalal and Others, , and pleads that, once there is a

transfer of ownership, irrespective of non-compliance with section 31 of the Motor Vehicles Act,it is only the transferee who could be held

responsible for the consequences of the accident, if any, and, therefore, the second respondent, having never taken delivery of the vehicle, and at

no point of time having used it nor engaged the first respondent as driver, cannot be held responsible for the accident.

The second respondent, R.W. I had stated that he was a registered medical practitioner who was permanently settled at madras since 1929. he

had secured an allotment of an Ambassador car in 1969, and that he had signed as early as September 26,1971 the transfer form in favour of

padmanabha Nadar, and the vehicle was taken delivery of by him directly from Reliance Motors, and that he did not receive any money from him,

because at that time the Motor Cars (Distribution and Sale) Control Order was in force, and, therefore, there could not be a transfer of a vehicle

for two years from the date of purchase. he does not know as to when exactly the vehicle was transferred in favour of padmanabha Nadar, even

though he had given him the transfer form duly signed. He admits that the registration certificate stood only in his name and the insurance certificate

was also taken only in his name.

With these admissions made by him, it is quite clear that he was the owner of the vehicle at the time of the accident. he might have handed over

the transfer form to Padmanabha Nadar in June,1971, but under the Motor Cars (Distribution and Sale) Control Order, 1969, no valid transfer of

the vehicle could take place till the expire of two years from the date of purchase; and hence, the transfer form signed by him could become valid

and effective only after June,1973, and not earlier. The right to transfer ownership having been restrained by the said Control Order, whatever

form he might have signed in June,1971, had not resulted in transfer of ownership of Padmanabha Nadar, He had not chosen to examine anybody

in support of the claim made by him. He could have examined Padmanabha Nadar. But what is stated by his counsel is that, when a

communication was went to him, it was returned stating that he was dead. That would not have proved by other evidence regarding transfer in his

favour. he could have sent for and produced the transfer extracts from the Regional Transport Office. He could have asked Reliance Motors to

produce the relevant documents to show as to in whose favour the vehicle was sold in June, 1971. He would not produce such documents

knowing quite well that they will disclose that on September 5,1972, viz., the date of accident, he was the owner of the vehicle.

It is unfortunate that his evidence had simply found acceptance as if he was prone only to speak the truth. the Tribunal had stated that a

registered medical practitioner would only speak truth. When he had deliberately violated the Control Order, a person, who stoops to violate such

regulations and enrich himself unjustly, cannot be believed of whatever he may claim. Rather, it reflects on his character and his evidence ought to

have been cautiously approached. If a transgressor or a violator or a law-breaker comes forward to tender evidence, it will be obligatory on the

part of the court to look for clinching corroboration on claims made by him if at all his evidence has to be accepted, and failing which, his evidence

should not accepted. it is quite evident that he had taken the vehicle in his own name, got it registered and also taken the insurance policy, but

allowed somebody else to use it, till the control period is over. he has to face the consequences of what he had consciously and knowingly done.

therefore, when in law, there could be no transfer at all, none of the decisions relied upon by Mr.Verghese could apply to the facts and

circumstances of this case.

It is not only because of registration of the vehicle in his name this conclusion is arrived at; but on his own showing, when he had applied for

allotment of the quota and taken the vehicle in his name with full knowledge, from Reliance Motors. Whatever other methods he might have

adopted to circumvent the legal provisions in the eye of law, he was the real owner of the vehicle. he might have been negligent or careless in

handing it over to another person for enriching himself quite unjustly. Hence, his evidence does not deserve any credence and the only conclusion

that could be arrived at is to hold that on the date of the accident, he was the owner of the vehicle.

On behalf of the third respondent, it is submitted that the insurance policy having been taken as between the second respondent and the third

respondent, as soon as the insured handed over the vehicle to another person, the privity of contract as between them had come to an end. He

would submit that on the admissions made by R.W.2, he having entered into an illegal transaction with another person, and who had in turn

entrusted it to the first respondent, the policy issued by it would not cover this accident. There is considerable force in the contention of the third

respondent that it cannot be held liable to pay the compensation amount. The second respondent had not filed the insurance policy to who that the

third respondent would be liable to pay compensation when the car was used by strangers. hence, the third respondent cannot be held responsible

because no specific term in the said policy is relied upon by the second respondent to show that for what he had done, the third respondent to

show that for what he had done, the third respondent had undertaken to pay compensation amount for acts done by others.

On the quantum of compensation awarded, it is contended that the Tribunal had not properly fixed the compensation payable for paid and

suffering, which was claimed at Rs.10,000. A sum of Rs. 4,000 had been allowed. The petitioner had not only been an in-patient for 13 days,but

as deposed by P.W. 4, the doctor, who had attended on him, he was treated as an out-patient at the hospital. He had suffered fracture not only in

both the arms, mandible, nasal bone, but also lost six teeth besides cerebral concussion. Wire had been attached to his jaw. he had undergone

surgery. hence, the uncontradicted evidence discloses that he must have suffered paid for the injures sustained by him for a considerable time.

hence, the compensation payable for paid and suffering is fixed at Rs.7,500 bearing in mind the indisputable fact that he was an out-patient for 10

months.

The petitioner had claimed compensation of Rs.20,000 for disfiguration and permanent and continuing disability. P.W. 4 had stated that not

only his earning capacity had been affected, but there has been a partial damage to the brain, vision and hearing. He had stated that there was

100% total temporary disability form September 5,1972 to July 5,1973, and the permanent disability had been fixed at 11% due to defect of the

8th nerve function and 20% due to defect in the vision of both the eyes and 6% for the loss of teeth, and 1% for mental agony. Hence, when this

has been so certified in exhibit A-2, it is quite clear that he had suffered disfiguration and disablement not only pertaining to his future employment,

but he cannot lead a happy life. He was a youngster yet to be married. having become partially deaf and his vision having been affected and his

mental faculty having been impaired partially, the compensation ought to have been fixed at Rs.20,000 as claimed.

As far as loss of earning power was concerned, he was studying at that time, and as to what sort of a vocation he would have taken, there was

no certainty. It is in this view, the Tribunal had fixed it at RS.150 per moth bearing in mind the status of the family, and how he had fared during his

studies. Then, deducting 10% towards lump sum payment, if fixed the compensation for loss of earning suffered at Rs. 11,340. It also a awarded

compensation of Rs.10 towards damages to clothing and Rs. 750 towards cost of medicines. Thus, in all, the petitioner-appellant is entitled to

compensation of Rs. 39,600 which is payable by respondents Nos.1 and 2. it is open to the petitioner to proceed against anyone of respondents

Nos. 1 and 2 as he may choose. The Tribunal having awarded interest only at 6% p.a which is on a very low side, in the light of the decision of the

Supreme Court in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, the interest in fixed at 12% p.a. from the date

of petition till the date of realisation.

Hence, the appeal is allowed with costs as against the second respondent to the extent indicated above.