V. Muthuswami Gounder vs Thulasi Ammal

M. Natesan, J.—The 1st defendant in a suit for recovery of damages caused to an auto-rickshaw on account of collision with his car, has

preferred this second appeal. The 2nd defendant was the 1st defendant''s driver. He was driving the car in the course of employment under the 1st

defendant.

The plaintiff was plying the auto-rickshaw for hire and her son who has given evidence as P.W. 1 was driving the said auto-rickshaw at the time

of the accident. The Courts below have concurred in finding that the collision by which the auto-rickshaw was damaged was due to the rash and

negligent act of the 1st defendant''s driver. Damages have been assessed by the Courts below at a sum of Rs. 1,200. The finding that the accident

was due to the rash and negligent driving of the car by the 1st defendant''s driver and the quantum of damages assessed are findings of fact, not

open to impeachment in second appeal. Learned Counsel for the appellant submitted that, in assessing the damages, the Courts below have failed

to advert to certain discrepancies in the dates of bills exhibited to prove purchase of damaged parts for the auto-rickshaw. No point has been

made in the Courts below of any such discrepancy. Nor is the discrepancy irreconcilable with the plaintiff''s case The substantial point raised by

learned Counsel for the appellant is the locus standi of the plaintiff to institute the suit and claim damages.

The auto-rickshaw in question was purchased by the plaintiff from one Ponnuswami for a sum of Rs. 6,150 about two years prior to the

accident. This Ponnuswami himself had purchased it from another party, entering into an hire-purchase agreement with one Ramanathan Chettiar.

The registration certificate for the vehicle stands in the name of Ponnuswami, and there is an entry about the hire-purchase agreement in the

registration certificate. There has been no transfer of the registration certificate in the name of the plaintiff after her purchase from Ponnuswami. The

purchase by the plaintiff was subject to liability under the hire-purchase agreement and statutory intimation of the sale in favour of the plaintiff was

given to the registering authority. But the registering authority has not recorded the transfer of ownership in the registration certificate, as

Ramanathan Chettiar was not willing to give his consent for transfer of registration till the amount due under the hire-purchase agreement was fully

paid. Ponnuswami has given evidence as P.W. 2 about his sale of the vehicle to the plaintiff, and there is no dispute that factually the property in the

vehicle has been transferred by the registered owner Ponnuswami to the plaintiff. The objection raised for the 1st defendant is that without a

transfer of the registration certificate in her name, the plaintiff cannot claim to be the owner of the vehicle and sue for damages caused to it.

Learned Counsel for the appellant relies on the provisions of the Motor Vehicles Act IV of 1939, to non-suit the plaintiff. It is submitted that,

unless there is a transfer of ownership as provided u/s 31 of the Act, the ownership of the vehicle remains with the registered owner. The transfer

of ownership of the motor vehicle it is said is not complete without a change of registry.

Counsel for the appellant would rely for his contention on Vimal Rai v. Gurcharam Singh (1967) A.C.J. 115, and Mohan Lal v. Kumari Babbi

(1967) A.C.J. 126, Both these cases relate to claims before the Motor Accidents Claims Tribunal constituted under Chapter VIII of the Motor

Vehicles Act. In the first case in a running down action, the question arose whether the insurance policy lapsed with the factual transfer, even

before the transfer of the registration certificate by the Registering Authority. The registered owner repudiated liability on the ground that he had

sold the vehicle prior to the accident. It was held that a mere parting with the possession of a motor vehicle without the transfer of the ownership in

the records of the Registering Authority under the Act would not result in the lapse of the insurance policy covering the vehicle, and that, even

though there might have been a sale, the insurance policy quo third parties would continue to subsist until the ownership of the vehicle was

transferred in accordance with the provisions of Section 31 of the Motor Vehicles Act. It was said that the general principles of insurance

regarding the lapse of an insurance policy immediately upon the sale would not apply to motor vehicles which are governed by the special law. The

learned Judge Andley J., observes that a perusal of the various provisions of the Act leads to only one conclusion that ownership of a motor

vehicle is to as evidenced by the registration as such with the Motor Registering Authority and the registration book which is supplied is the

document of title. The learned Judge said:

I think the Act proceeds on the basis that it is only the ostensible owner who is entered as such in the registration books, who is to be considered

to be the owner of the motor vehicle irrespective of the fact that the real ownership may be with somebody else.

In Mohan Lal v. Kumari Babbi (1967) A.C.J. 123, the insured sought to escape liability on the ground that the actual owner was someone else.

It was held that the fact that the vehicle was insured in his name coupled with other circumstances proved that the insured was owner of the

vehicle. These two cases relating to insurance liability of a registered owner or the insured are not relevant in the context of the problem before us.

Whereas the above two cases were concerned with claims cognizable by the Motor Accidents Claims Tribunal, the instant case is concerned with

a common law liability in tort. Those two cases even on their reasoning are not in my view authority for the position that an actual owner of a

vehicle who has suffered damage by collision cannot claim relief.

u/s 31 of the Motor Vehicles Act, where the ownership of any motor vehicle registered under the Act is transferred, it is the duty of the

transferor to report the transfer within fourteen days of the transfer to the registering authority sending a copy of the report to the transferee. Also

the transferee shall, within thirty days of the transfer, report to the registering authority the fact of transfer of ownership. A reading of Section 31

shows that the contractual transfer of ownership of a vehicle has to precede the application for transfer of ownership. As between the transferor

and transferee, the sale gets completed before the transfer of the registration certificate. The failure to report the transfer may involve some

penalities under the law. But that certainly does not interdict the passing of property, in the vehicle to the transferee. As observed in Mehtab Singh

v. N. F. & G. I. Company AIR 1963 Punj. 103 , all that is required under the Act is that the transfer has to be notified otherwise certain penal

consequences follow, but that does not made the transfer invalid. The moment the sale is effected of the vehicle intending to pass the property

therein forthwith, vis-a-vis the vehicle, the registered owner ceases to have any proprietary interest. It may be that, till there is an endorsement on

the registration certificate, ostenasibly the transferor is the owner. But the beneficial interest, including the right to possession, vests in the

transferee.

The Motor Vehicles Act regulates and controls the running of vehicles in public places and in other places for the purpose of carrying

passengers or goods. It does not deal with the passing of property in and legal title to the property. The definition of"" owner "" in Section 2 (19) of

the Act is not a complete definition. In fact, it cannot be considered to be a definition, as it merely describes as owners two classes of persons who

would not, under the ordinary use of the word "" owner,"" be said to be owners. Section 2 (19) states that, where the person in possession of motor

vehicle is a minor the guardian of such minor would be the owner, and that, where the motor vehicle is the subject of a hire purchase agreement the

person in possession of the Vehicles under that agreement would be the owner. The subsection does not exclude persons who are otherwise

owners from the coverage of the expression it being not an exhaustive definition. A person in whom title to the vehicle vests and who has legal right

to possession of the vehicle, does not cease to be the owner even for the purpose of the Act, Uma Shanker Tewary and Another Vs. Rex, . In

Halsbury''s Laws of England, Simonds Edition, Vol. 31, at page 447, it is pointed out that, while the registration book is issued to the owner of the

vehicle, that is, the person by whom the vehicle is kept and used and although provision is made for changes of ownership to be recorded in the

registration book, the name appearing in the registration book may not be that of the legal owner of the vehicle. The registration book is not a

document of title but is evidence of title and its absence at the time of sale would put a purchaser on inquiry.

About the jurisdiction of the Civil Court, Claims Tribunals have been constituted u/s 110 of the Act for the purpose of adjudicating upon claims

for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles. Counsel for the

respondent draws my attention to a decision of this Court in Selvami v. Jagannathan (1969) A.C.J. 1, where it was held that the Claims Tribunal

has no jurisdiction to try any claim other than the one defined in Section 110 (1) that is, a claim for compensation in respect of accidents arising out

of the use of motor vehicles. This Court upheld the exclusive jurisdiction of the Civil Court to try the suit in so far as it related to the claim for such

compensation, observing inter alia, that, if the claim in respect of loss of property was inextricably bound up with the claim in respect of personal

injury, the entire claim would be within the purview of the Civil Court. In taking this view this Court differed from the decision of Madhya Pradesh

High Court in Dr. Om Prakash Mishra Vs. National Fire and General Insurance Co. Ltd. and Others, . There is no room for controversy in the

instant case, as the claim is wholly in respect of damage to the plaintiff''s vehicle. Reading Section 110 and 110-A to 110-F of the Act, one thing is

clear and beyond controversy that, where no death or personal injury results in an accident arising out of the use of motor vehicles but the claim for

compensation is for loss suffered to property such claim has to be preferred in a civil Court. The claim for damages to a vehicle by the wrongful act

of the opposite party is a common law action in tort. The gist of the action is trespass to goods and the person who could complain of the trespass

and consequential damages must have the present possession of the property either actual or constructive or must have legal right to its immediate

possession. For the purpose of the action as a general rule, the master is treated as being legally in possession of the property which is in the actual

physical custody of his servant, the servant being a conduit through whom the master exercises his legal right. In the present case, the legal right to

the possession of the property was in the plaintiff at the time of the accident and the damage was to her property. The objection to the

maintainability of the suit by the plaintiff, therefore, fails.

In the result the second appeal is dismissed with costs. No leave.