Sudhir Kewaliya and Others vs Nirmala Devi and Others

Dr. Vineet Kothari, J.—The present Misc. Appeals have been filed by the appellants namely, Sudhir Kewaliya and Trilok Chand, who were the non-applicants before the learned Judge, Motor Accident Claims Tribunal, Bikaner in Claim Case No. 111/1994 "Nirmala Devi Wd/o Indra Puri and Ors. Vs. Trilok Chand, Rajendra Kumar Mittal and Sudhir Kewaliya" being aggrieved by the judgment and award dated 28.07.2001 of learned Judge, MACT, Bikaner in the claim petition filed by the claimants under Section 166, Motor Vehicles Act, 1988, by which, the learned Judge held the non-applicant No. 1, Trilok Chand and the non-applicant No. 3-Sudhir Kewalia to be liable to satisfy the award in question for the sum of Rs. 15,87,245/- for the accidental death of Indra Puri when he was going on scooter (No. R.N.E. 9618) to his house towards Udasar on Sagar Road, Bank Training Centre, in front of Shiv Mandir situated at National Highway, Bikaner his scooter collided with the Yezdi motorcycle (No. R.J.F. 8232), an uninsured vehicle, driven by the non-applicant No. 1-Trilok Chand and on account of the head injuries suffered, the said Indra Puri, aged 42 years, died. He was an employee of the Bank. The motorcycle in question was not insured on the date of accident, i.e., on 07.06.1994 and 08.06.1994 mid-night, therefore, the insurance company was neither arrayed as a non-applicant nor there was any question of any insurance company paying the compensation.

The claim petition was filed by the legal representatives of the deceased Indra Puri, viz., his widow Nirmala Devi and Ors. claiming compensation in the sum of Rs. 27,36,892/- and after leading of the evidence, the learned Tribunal awarded a sum of Rs. 15,87,245/- to be paid jointly and severally by the non-applicants Nos. 1 (Trilok Chand) and 3 (Sudhir Kewalia) with interest from the date of filing of the claim petition @ 9% per annum. The learned Tribunal, however, exonerated the non-applicant No. 2 - Rajendra Kumar Mittal, the registered owner of the said motorcycle bearing registration number R.J.F. 8232, while holding that the driver of the said motorcycle, the non-applicant No. 1 Trilok Chand and the non-applicant No. 2A Sudhir Kewalia, were jointly and severally liable to satisfy the said award.

The learned counsels for the appellants Mr. L.R. Mehta and Mr. D.S. Rajvi submitted that the definition of the ''owner'' as given in Section 2(30) of the Motor Vehicles Act, 1988 makes it clear that the registered owner of the offending motorcycle in question could not have been exonerated from the liability to satisfy the award in question even though under civil law he claimed such exoneration, as he claims that he had sold the motorcycle before the date of accident. It is noticed that the said registered owner of the offending motorcycle namely, the non-applicant No. 2-Rajendra Kumar Mittal executed a sale letter dated 24.11.1987 (Ex. NA-6) for the said motorcycle in favour of non-applicant No. 2-A Mr. Sudhir Kewaliya and later on again a separate sale letter dated 15.04.1994 recovered from the said motorcycle, the said sale letter of the motorcycle was in favour of non-applicant No. 1 Triok Chand, who was driving the said offending motorcycle at the time of accident in question on 07.06.1994 mid night hours.

The learned counsels for the appellants Mr. L.R. Mehta and Mr. D.S. Rajvi relied upon a decision of the Hon''ble Supreme Court in the case of Pushpa @ Leela and Others Vs. Shakuntala and Others, (2011) ACJ 705 : AIR 2011 SC 682 : (2011) 2 CPJ 9 : (2011) 2 CTC 693 : (2011) 1 JT 117 : (2011) 162 PLR 472 : (2011) 2 RCR(Civil) 616 : (2011) 1 SCALE 303 : (2011) 2 SCC 240 : (2011) 1 SCC(Cri) 682 : (2011) 1 SCR 334 : (2011) 1 TAC 778 : (2011) 1 UJ 412 : (2011) AIRSCW 562 : (2011) 1 Supreme 193 and submitted that firstly, the vehicle in question was being driven by the non-applicant No. 1 Trilok Chand at the time of accident and the document NA-1, a copy of the sale letter executed by Rajendra Kumar Mittal on 15.04.1994 was in favour of Trilok Chand himself and, therefore, the appellant Sudhir Kewaliya has wrongly been held liable to satisfy the award in question. The learned counsels also drew the attention of the Court towards the documents, NA-6 dated 24.11.1987 and NA-1 dated 15.04.1994, the two sale letters purportedly one in favour of Sudhir Kewaliya and another in favour of Trilok Chand. In one of the Sale Letter, i.e., NA-6, there is an endorsement on the back of it as well as the same has been registered by the Notary Public on 24.11.1987 whereas, in the second document, i.e., NA-1 dated 15.04.1994, no such endorsement is there.

The learned counsel for the appellant Mr. L.R. Mehta submitted that the appellant Sudhir Kewaliya was working as a Medical Representative with the registered owner of the offending motorcycle namely, Mr. Rajendra Kumar Mittal, who was in the business of selling drugs and medicines and, therefore, under the regular business transactions, the appellant Sudhir Kewaliya had given the cheque of Rs. 3,000/- which was credited in the bank account of Mr. Rajendra Kumar Mittal but it was purportedly stated that the said cheque of Rs. 3,000/- was given to him as a consideration for transfer of the offending motorcycle. The learned counsel Mr. L.R. Mehta, therefore, submitted that the appeal of the appellant Sudhir Kewaliya deserves to be allowed and the registered owner of the offending motorcycle Mr. Rajendra Kumar Mittal also deserves to be held liable to satisfy the award in question along with the non-applicant No. 1 - Trilok Chand, in whose favour, the said document NA-1, the sale letter dated 15.04.1994 was also recovered from the said vehicle itself by the police. The relevant extract from the judgment in the case of Pushpa @ Leela (supra) is quoted herein below for ready reference:-

"9. The question of the liability of the recorded owner of the vehicle has to be examined under different provisions of the Act. Section 2(30) of the Act defines "owner" in the following terms:

"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;"

(Emphasis added)

Then, section 50 of the Act lays down the procedure for transfer of ownership. It is a long section and insofar as relevant it is reproduced below:

"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) xxxxxxx

(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) xxxxxxx

(3) xxxxxxx

(4) xxxxxxx

(5) xxxxxxx

(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."

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 February 2, 1993.

The question of the liability of the recorded owner of a vehicle after its sale to another person was considered by this Court in Dr. T.V. Jose Vs. Chacko P.M. alias Thankachan and Others, AIR 2001 SC 3939 : (2001) 8 SCC 748 : (2001) AIRSCW 3910 : (2001) 7 Supreme 257 . In paragraphs 9 and 10 of the decision, the Court observed and held as follows:

"9. Mr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No. 9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas.

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 the 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 the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to do so."

(Emphasis added)

Again, in P.P. Mohammed vs. K. Rajappan and Ors., (2008) 17 SCC 624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held as follows:

"4. These appeals are filed by the appellants. 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 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. 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 RTO 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 RTO records, he remains liable to a third person."

(Emphasis added)

The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of section 2(30) and section 50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd.

Learned counsel for the insurance company submitted that even though the registered owner of the vehicle was Jitender Gupta, after the sale of the truck he had no control over it and the possession and control of the truck were in the hands of the transferee, Salig Ram. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Co. Ltd. Vs. Deepa Devi and Others, (2008) ACJ 705 : AIR 2008 SC 735 : (2008) 1 CLT 907 : (2008) 149 PLR 780 : (2007) 14 SCALE 168 : (2008) 1 SCC 414 . The facts of the case in Deepa Devi are entirely different. In that case the vehicle was requisitioned by the District Magistrate in exercise of the powers conferred upon him under the Representation of the People Act, 1951. In that circumstance, this Court observed that the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remained under requisition, the owner did not exercise any control over it: the driver might still be the employee of the owner of the vehicle but he had to drive the vehicle according to the direction of the officer of the State, in whose charge the vehicle was given. Save and except the legal ownership, the registered owner of the vehicle had lost all control over the vehicle. The decision in Deepa Devi was rendered on the special facts of that case and it has no application to the facts of the case in hand.

In light of the discussion made above it is held that the compensation amount is equally realisable from respondent No. 3, Oriental Insurance Company Ltd. and it is directed to make full payment of the compensation amount as determined by the Claims Tribunal to the appellants within two months from the date of this judgment.

Even though the claimants in the other case, the heirs and legal representatives of Nikku Ram, have not come to this Court, we consider it appropriate to give the same direction in respect of their case. There is absolutely no difference in the case of Nikku Ram and Prem Chand. Nikku Ram, being a daily wage earner was given a compensation of Rs. 2,42,000/-. It is quite possible that his heirs and legal representatives were unable to come to this Court simply for want of sufficient means. The insurance company must pay the compensation amount determined in case of Nikku Ram to his heirs and legal representatives in case the amount has so far not been realised from Salig Ram as directed by the Claims Tribunal.

The appeal is allowed but with no order as to costs."

On the other hand, the learned counsel Mr. Dhanesh Saraswat on behalf of Mr. Ravi Bhansali appearing for the respondent No. 9 - Rajendra Kumar Mittal, the registered owner of the offending vehicle submitted that the vehicle in question had been transferred to the appellant Sudhir Kewaliya vide sale letter document NA-6 way back in the year 1987 itself and he came to know about the fact that the said vehicle has not been transferred in the record of R.T.O. yet, only in the year 1998 when he received the summons from the Court concerned in the criminal matter in relation to the said accident in question in which the victim Indra Puri had died and since the entire consideration for sale of motorcycle has been received by him and the possession of the offending motorcycle had been handed over to the purchaser, therefore, merely because the purchaser failed to get the registration transferred in his favour, which was his duty under Section 50 and 88 of the Act of 1988, the registered owner of the vehicle in question in R.T.O. Record could not be held liable to satisfy the award in question.

The learned counsel Mr. Bheemkant Vyas appearing for the respondents-claimants submitted that the award in question deserves to be satisfied by all the non-applicants and under the interim orders of this Court passed on 11.07.2006, the appellant Trilok Chand (CMA No. 47/2002) was directed to deposit an amount of Rs. 1,00,000/- with the Tribunal and the appellant Sudhir Kewaliya (CMA No. 905/2001) was also directed to deposit an amount of Rs. 1,00,000/- with the Tribunal concerned; and at the same time, the registered owner of the offending vehicle namely, Mr. Rajendra Kumar Mittal was also directed to deposit an amount of Rs. 50,000/- with the Tribunal concerned. It is informed that the total amount of Rs. 2,00,000/- (Rupees Two Lacs Only) has been deposited by the appellants namely, Trilok Chand and Sudhir Kewaliya but the registered owner of the offending motorcycle namely, Mr. Rajendra Kumar Mittal has not deposited any amount so far in the present case.

I have heard the learned counsels for the parties at length and examined the record of the case and also perused the judgment cited at Bar. It is beyond the pale of doubt that Section 2(30) of the Act of 1988, definition of ''owner'' includes the registered owner of the motor vehicle and where the vehicle is under a hire-purchase agreement, the person in whose possession and control, the vehicle is found in case of any accident, that person cannot be held responsible as an owner of the vehicle unless and until the registration is transferred in favour of the transferee as per the Sale Letter submitted. Here, in the present case, the offending motorcycle was said to have been sold by its registered owner Rajendra Kumar Mittal to the appellant Sudhir Kewaliya in the year 1987 but the registration of the same was not transferred by the purchaser till 1998. In that case, the purchaser cannot be treated as registered owner of the vehicle for the purpose of the Act of 1988. From the extracted portion of the judgment in the case of Pushpa @ Leela (supra), as quoted herein above and in view of the settled legal position, it is clear that the exoneration of the registered owner of the offending motorcycle namely, Rajendra Kumar Mittal, by the learned Tribunal was wrong and is not sustainable even though under civil law, the transfer of the property takes place with the possession of the movable property handed over and the consideration for the transfer received by the seller but unless and until the registration of the motor-vehicle is transferred in favour of such transferee, the registered owner of the vehicle cannot be let off or exonerated from its liability to satisfy the award in question along with the other liable persons, in case, the accident takes places during such period.

In the present case, as many as, two sale letters were executed by the registered owner Mr. Rajendra Kumar Mittal are on record; one in favour of the appellant Sudhir Kewaliya and another in favour of the appellant Trilok Chand, who was actually found to be in possession of the vehicle and was driving the said offending motorcycle on the date of accident i.e., mid-night of 07.06.1994 and 08.06.1994. There is also a document of transfer of vehicle in favour of Trilok Chand also, i.e., document NA-1 dated 15.04.1994 but the fact remains that the change of the ownership in the record of the Transport Department had not taken place in favour of any of them transferees until the date of the accident and even thereafter till 2001, as would appear from the documents filed by the appellant Sudhir Kewaliya along with the application under Order 41 Rule 27 of the Code of Civil Procedure before this Court namely, IA No. 13647/2012 dated 01.11.2012. The contention as raised on behalf of the appellant Sudhir Kewaliya that his examination-in-chief was done prior to the examination-in-chief of the registered owner of the offending vehicle, Mr. Rajendra Kumar Mittal and, therefore, he was not able to rebut the averments made in the statement of the Rajendra Kumar Mittal, does not persuade this Court to send the case back to the learned Tribunal concerned for trial afresh because, in the present case, the appellants had full opportunity to cross-examine the registered owner of the offending vehicle Mr. Rajendra Kumar Mittal and the sequence of examination of the witnesses does not affect the legal liability to satisfy the award in question in favour of the claimants.

The statements of the registered owner Mr. Rajendra Kumar Mittal and the appellants-Mr. Sudhir Kewaliya and Mr. Trilok Chand were also read over by the learned counsels before this Court but the appellant has failed to elicit anything from the statement of the registered owner Mr. Rajendra Kumar Mittal about the transfer of the offending motorcycle having been made to him. He even failed to prove the fact before the Tribunal that the cheque of Rs. 3,000/- was given by him to Mr. Rajendra Kumar Mittal, which was duly credited in his bank account, was given on account of any regular business transaction as Medical Representative while working for Mr. Rajendra Kumar Mittal, who was engaged in the business of sale of medicines. This failure on the part of the appellant Sudhir Kewalia to dislodge the factum of transfer of vehicle to him duly supported by the documents NA-1 and NA-6, the two sale letters, does not entitle him to claim that he was not at all liable to satisfy the award in question. The Hon''ble Supreme Court in the aforesaid case of Pushpa @ Leela (supra) held that irrespective of the transfer under the civil law regarding movable property, the liability of the registered owner as well as the person, in whose control and possession, the vehicle was found and was recovered on the date of accident. In the cases where the vehicle is already under a hire-purchase agreement, both of them were treated to be the "owners" of the property as per Section 2(30) of the Act of 1988.

In the present case, the vehicle in question not being insured, the insurance company is not involved but there are three persons who are equally liable to satisfy the award in question, the registered owner Mr. Rajendra Kumar Mittal, the transferee Mr. Sudhir Kewaliya and the second transferee or the person in actual control and possession of the vehicle Mr. Trilok Chand. Therefore, only to that extent where the learned Tribunal had exonerated the registered owner Mr. Rajendra Kumar Mittal, the award of the Tribunal deserves to be modified and the appeal deserves to be partly allowed to this extent only.

Accordingly and in view of the above, both the instant Misc. Appeals filed by the appellants-Sudhir Kewaliya and Trilok Chand are partly allowed and while upholding the award in respect of the amount of compensation, it is directed that all the three non-applicants will satisfy the award in question in equal proportion, after taking into the amount already deposited by them, if any, within a period of three months from today and upon such deposition of the entire amount, the same may be disbursed to the claimants in terms of the directions given by the Tribunal concerned in accordance with law. This will, however, not come in the way of the parties/non-applicants to claim their share from the other persons (transferees) after establishing the factum of transfer of vehicle in accordance with law by filing fresh recovery suits. No costs. A copy of this order be sent to the learned MACT, Bikaner and to all the parties concerned forthwith.