Zabar Singh vs Prithi Chand and Others

S.S. Sodhi, J.—The accident here was between a truck and tractor. This happened on February 1, 1973 at about 4.00 P. M on the National High way between Delhi and Jaipur, near village Pachgaon. Siri Kishan and Anand Parkash, two young students, who were travelling on the tractor trolly at that time died as a result of the injuries sustained by them when on account of the accident the tractor trolly turned turtle and fell into a ditch on the road side. Siri Kishan died at the spot when the wheel of the tractor passed over him after he had fallen; whereas Anand Parkash died a few days later on February 12, 1973.

The Tribunal found that the accident had been caused by the rash and negligent driving of the truck driver. A sum of Rs. 16,000/- was awarded as compensation to Smt. Sarwan Devi, the mother of Siri Kishan; while Pirthi Chand and Smt. Shanti Devi, the parents of Anand Parkash were awarded Rs. 9000/-. Liability for the amount awarded was fastened upon the truck driver and Zabar Singh, who was held to be owner of the truck at the time of the accident. The financcr of the truck M/S Janta Cinema Property & Finance, Limited was the other party held liable The Respondent Insurance Company was, however, absolved of liability on the finding that Zabar Singh, who was the owner of the offending truck when accident occurred was not the insured at the time.

The finding of negligence recorded against the truck driver warrants no interference. It being based upon the testimony of two persons PW. 1 Urmila and PW2 Ved Parkash, who were both traveling in the tractor trolly when the accident took place and were amongst the injured. They both deposed to the truck having come from behind at a fast speed and hitting into the tractor trolly whereby the hook of the tractor trolly broke and it then turned turtle. This was corroborated by PW3 Day a Ram and PW4 Dharam Singh, the other eye witnesses to the occurrence. The testimony of all these witnesses being consistent and straight-forward with no discrepancies or contradictions to create any doubt therein was rightly relied upon by the Tribunal.

On the other hand, the testimony of the truck driver Harphul Singh, who was incidently the only, witness examined by the other side inspires no confidence He came-forth with no counter version in the written statement, but in the witness box he deposed to the patently implausible story, "I wanted to over-take the said tractor trolly, but the hook of the trolly was snapped and the trolly fell in front of my vehicle. This was on the face of it clearly an afterthought.

The photographs taken at the scene of the occurrence soon thereafter also provide eloquent testimony to the negligence of the track driver.

No exception can, thus, be taken to the finding of negligence recorded against the truck driver.

The next question which calls for determination in this case is with regard to the claim for enhanced compensation put-forth by Smt. Sarwan Devi the mother of Siri Kishan deceased. It was her testimony as PW. 6 that the deceased here was 16 years of age at the time of his death. He was a student in the Pre-University class at that time, and was intending to join the Army. She mentioned in this behalf that one of her sons was already a Captain in the Army, while the other was on the reserve list. Her third son was studying for his M.A. at Meerut University.

A reading of the testimony of Smt. Sarwan Devi would show that her''s was a family of well educated children and the two elder ones who had joined the Army were both well placed. In the circumstances, it would be reasonable to assume that Siri Kishan too would have got into the Army as his brothers. By the very nature of things there can be no precise yard stick to measure the loss suffered by the mother on account of the death of her young son In the circumstance! as appear in this case, however, it would be a valid assumption to take it that after completing him education the deceased would have joined the Army and thereafter helped in supporting his mother in her old age. What deserves to be kept in view here is that the deceased still had before him some years of education before he could be gainfully employed. It also deserves note that the claimant Smt. Sarwan Devi gave her age as 60 years when she was examined as a witness in 1976 which would mean that she was about 57 years of age when deceased died. Seen in the totality of the circumstances of the case in the light of the principles laid down by the Full Bench in Lachhman Singh v. Gurmit Kaur (1979) 81 P.L. R. 1, it would be fair and just to hold Smt. Sarwan Devi entitled to a sum of Rs. 25,000/- as compensation in this case.

Turning to the parties liable to pay the amount awarded, it must at the very outset be observed that the Tribunal was clearly in error in imputing liability to the finance company M/S Janta Cinema Property & Finance Limited. In support of his contention that the finance company could not have been held liable, Mr. L M. Suri cited Municipal Committee Sonepat and Ors. v. Khushi Ram and Ors. (1983) 85 P.L. R. 373 and Sundaram Finance Ltd. Vs. D.G. Nanjappa and Others, No exception Was taken to the contention raised by the counsel for the other parties to these appeals The Finance Company cannot, therefore be held liable.

The main question which arises for determination in this case is with regard to the liability of the Respondent Insurance Company, for the amount awarded as compensation to the claimants. It is the admitted case of the parties that the truck in question was originally owned by Partap Singh and this Partap Singh sold the truck to Zabar Singh under a hire purchase agreement. The controversy that arises here is whether Zabar Singh became the owner of this truck on February 2, 1973, that is, a day after the accident had taken place or on a date prior to the date of the accident. The finding of the Tribunal which, was assailed in appeal Was that when the accident took place it was Zabar Singh who was the owner of the truck and as he was not insured then the Insurance Company could not be held liable It is this finding which came up as the main point under challenge in these appeals.

During arguments another important aspect of the matter, having bearing on the issue raised emerged, that being with regard to the effect and consequences of the representation contained in the letter submitted by Partap Singh to the Respondent Insurance Company regarding the transfer of the policy of insurance in respect of the truck to Zabar Singh. This letter contained a writing by Zabar Singh to the effect that the truck had not been involved in any accident prior to that date. This date being February 2, 1973, that is, one day after the date of the accident. Two additional issues were consequently framed in this behalf These issues being:

Whether Zabar Singh Respondent made a representation to the Respondent-Insurance Company on February 2, 1973 to the effect that the truck PRL-4722 had not met with an accident prior to that date ?

If the above issue is decided in favour of Respondent Insurance-Company, whether the Insurance Company is not liable to indemnify Zabar Singh for any amount that he may be held liable to pay in respect of this accident to the claimants ?

No additional evidence was led by the parties on these issues despite opportunity being afforded to them for this purpose. Reliance being upon material already-on record.

In order to establish that Zabar Singh was the owner of. the truck on the date of the accident, Mr. R.M. Suri, counsel for the Respondent-Insurance Company laid great stress upon the receipt of Rs. 35,000/- by Zabar Singh from the Finance Company for the purchase of the truck. This receipt (Ext. R/3) bears the date January 16, 1973. Next he referred to Ext. R4/6 the form relating to the intimation of transfer of ownership of motor vehicle as given by Zabar Singh to the rcgistring authority relating to the transfer of the truck to him by Partap Singh. This bears the date January 31, 1973. Similarly, Ext. Rule 4/7 is the intimation given by Partap Singh to the registering authority that he had sold this truck to Zabar Singh and had no objection to the vehicle being transferred in the name of the purchaser this again is of the same date, that is, January 31, 1973

Another document relied upon was the claim from Ext. Rule 4 filed up by Zabar Singh in respect of this accident. Counsel adverted to this form to point out that Harphul Singh the driver of the truck was recorded in this form as being in the employment of Zabar Singh.

Finally, counsel adverted to the letter Ext. Rule 4/1 submitted by Partap Singh to Insurance Company stating therein that he had no objection to the insurance of the truck being transferred to Zabar Singh. It was on this letter that Zabar Singh had written in ''Hindi'' that the truck had not involved in any accident. With regard to this letter stress was laid upon the fact that the date mentioned therein was January 26, 1973 and it was there under that the date February 2, 1973 had been written.

Relying upon the contents of the documents referred to above it was argued that the vehicle in question had been transferred to Zabar Singh before February 1, 1973 and consequently Zabar Singh was the owner thereof when the accident occurred.

Mr. V. P. Gandhi, counsel for the claimants on the other hand, contended that mere transfer of registration of a motor vehicle cannot be treated as conclusive evidence of transfer of ownership thereof. He relied here upon the precedent of Phul Bus Service v. Financial Commissioner, Taxation. Punjab and Ors. 1968 A.C. J. 57, where it was held that registration under the Motor Vehicles Act is not a necessary ingredient of a completed title of ownership of a motor vehicle.

The point canvassed by the counsel for the claimants being that it was only when the price of the truck had been paid and possession thereof handed over to Zabar Singh that he could be taken to be its owner. In this situation, it becomes necessary to look for evidence of the terms of the sale of the truck. Counsel here adverted to the testimony of Zabar Singh where he deposed that according to the settlement he was to become the owner of the truck only after he had paid the price thereof and both the registration as also the insurance in respect of the truck had been transferred in his favour and further that the truck had to be delivered to him thereafter at Jaipur. He stated that he actually received the delivery of the truck 2 or 3 days after he had paid Partap Singh for the truck. It was further his testimony that this payment was made by him to Partap Singh on February 2, 1973. In other words, he became the owner of the truck on February 2, 1973 or 2 or 3 days thereafter when he received delivery of the truck There was no challenge to his testimony regarding the terms of the sale of the truck to Partap Singh r, or indeed could counsel for the insurance Company refer to any other material on record or circumstances, to spell out any other terms. If such indeed were the conditions for the transfer of ownership from Partap Singh Exts. Rule 4/6 and Rule 4/7 are clearly of no avail to the Respondent Insurance company, as mere transfer of registration of the truck to the name of Zabar Singh could not by itself be taken to be transfer of ownership of the truck on that date.

There is ample evidence on record to corroborate the testimony of RW. 4 Zabar Singh that the price of the truck had been paid by him to Partap Singh on February 2,1973. There is in the first instance, the statement of RW. 1 N.S. Sharma, an employee of the Finance Company concerned, who deposed that it was on that date, that is, February 2, 1973 that a cheque for Rs. 35,000/- was issued in favour of Partap Singh in the account of Zabar Singh against the receipt Ext Rule 1 which bests that date. This receipt, he stated, was signed by both Partap Singh and Zabar Singh in his presence. There is then the statement of RW 2, S. C Bhardwaj of the Bank of India, who deposed that the cheque drawn by the Finance Company in favour of Partap Singh for Rs. 35,000/- was encased on February 3, 1973.

Mention may here be made of the receipt Ext. R 3 upon which reliance has been place by the counsel for the Respondent-Insurance Company. Adverting to this receipt Mr. V. P. Gandhi counsel for the claimants pointed to the fact that by this receipt, the amount Rs. 35,000/- had merely been put in the account of Zabar Singh for the purchase of the truck. He referred here also to the note of Zabar Singh recorded there under that this Rs. 35,000/- be paid to Partap Singh. There is then the endorsement signed by Partap Singh to acknowledge payment to him of Rs. 35,000 by a cheque dated February 2, 1973. This receipt cannot thus be construed to advance the case of the Respondent-Insurance Company.

Next to note here it that the statement of the truck driver Harphul Singh. According to him, it was Partap Singh who was the owner of the truck at the time of the accident and he was his employee on that date. In this claim Ext. Rule 4/5 filed by Zabar Singh, in respect of this accident Zabar Singh had however, named Harphul Singh as a driver of the truck at the time of the accident had written "2 years" against the column "how long has he been in your employment". It was on the basis of this statement recorded in this claim application that counsel for the Respondent-Insurance Company had sought to use it as a piece of evidence to show that Zabar Singh was the owner of the truck at the time of the accident The statement recorded in this claim application is on the face of it is incorrect, in as much as admittedly if at all Harphul Singh was the employee of Zabar Singh, he could not have been so for two years considering that Zabar Singh had purchased the truck at best only a few days earlier. It is pertinent to note, however, that this claim application was not put to Zabar Singh to seek his explanation with regard therto. Be that as it may, in the circumstances this cannot be taken to establish that Zabar Singh was the owner of the truck at the time of the accident.

Turning to the two additional issues framed in this Court, it will be seen that the case of Respondent-Insurance Company is founded upon the letter Ext Rule 4/1 which was written by Partap Singh to the Insurance Company conveying his no objection to the transfer of his truck Zabar Singh. Zabar Singh admitted having written on this letter to the effect that the truck had not been involved in any accident. This was on February 2, 1973, that is, a day after the accident had taken place. When put to him, the explanation of Zabar Singh was that he did not know at that time that the truck had been involved in any accident. It deserves note that counsel for the Respondent-Insurance Company could point to no material on record from which knowledge of the accident could be imputed to Zabar Singh on that date or for that matter to Partap Singh. In the absence of such evidence, there it clearly no warrant to hold in favour of the Respondent-Insurance Company under either of these issues.

In the totality of the circumstances of the ease in the context of the evidence on record, on balance the conclusion to be arrived at is that it was Partap Singh who was time owner of the truck at the time of the accident. Partap Singh being the insured at that time and Harphul Singh the truck driver being in his employment then, the Respondent-Insurance Company must be held liable lor the amount awarded as compensation to the claimants along with Respondents Partap Singh and Harphul Singh. No liability can thus be fastened upon Zabar Singh

In the result the amount awarded as compensation to Smt-Sarwan Devi the mother of Siri Kishan deceased, is hereby enhanced to Rs. 25,000/- This amount shall be payable to her along with interest at the rate of 12% per annum from the date of the application to the date of the payment of the amount awarded. The liability for the amount awarded to Smt Sarwan Devi as also to the other claimants Prithi Chand and Smt. Shanti Devi the parents of Anand Parkash, deceased, shall be of the Respondent Insurance Company besides that of Respondents Harphul Singh and Partap Singh. Both the appeals, filed by Zabar Singh as also the Cross-Objections of the Respondents Smt. Sarwan Devi and Finance Company are hereby accepted. Smt. Sarwan Devi shall also be entitled to the costs of her Objections. Counsel''s fee Rs 300/-. There will be otherwise no order as to costs in the two appeals filed by Zabar Singh.