Allahabad High Court
Derek Smith vs Smt. Yasmeen And Others on 19 July, 2019
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 28.03.2019 Delivered on 19.07.2019 Case :- FIRST APPEAL FROM ORDER No. - 1465 of 2008 Appellant :- Derek Smith Respondent :- Smt. Yasmeen And Others Counsel for Appellant :- A.D. Saunders Counsel for Respondent :- Mohd Zamir Hon'ble Saral Srivastava,J.
1. Heard Sri A.D. Saunders, learned counsel for the appellant.
2. The present appeal has been filed by the appellant challenging the judgement and order dated 23.04.2008 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 16, Agra in M.A.C.P. No. 364 of 2003 (Smt. Yasmeen and Others Vs. Sri Derek Smith and Another) whereby, Tribunal has fixed the liability upon the appellant to pay compensation to the respondent nos.1 to 5 for the death of one Arif in an accident on 12.04.2003.
3. The brief facts giving rise to the present appeal are that one Arif on 12.04.2003 was riding moped bearing registration No.U.P. 80-E-2341, and he was hit by a scooter No. U.H.M.-8991 (hereinafter referred to as 'scooter') coming from opposite direction driven by its driver rashly and negligently near Vrindawan Hospital Rajamandi, Agra. As a result of the said accident, Arif suffered serious injuries and died. The deceased was stated to be carpenter and was earning about Rs. 3300/- per month. In the aforesaid backdrop, respondent nos.1 to 5 instituted claim petition under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act, 1988') for a compensation of Rs. 10 lac along with 12% interest.
4. The appellant, who was impleaded as respondent no.1 in the claim petition, has filed filed written statement contending therein that on the date of alleged accident, he was not the owner of the scooter as he had sold the scooter on 24.03.2000 much before the date of alleged accident to Abdul Haji respondent no. 6 (respondent no.2 in the claim petition) and, therefore, appellant is not liable to pay any compensation. He further denied the factum of accident and also pleaded that accident had occurred due to the sole negligence of deceased.
5. Notices were issued to respondent no.6 but he did not appear before the Tribunal and consequently, the Tribunal proceeded exparte against him.
6. The Tribunal on the basis of pleadings between the parties has framed as many as fives issues, which are extracted herein below:-
"1. क्या दिनांक 12.04.2003 को समय करीब 9-30 बजे सुबह जब मोहम्मद आरिफ अपने भाई के साथ मोपेड स. यूं..पी 80-E- 2341 से अब्बू लाला की दरगाह के उर्स में जा रहे थे तब वह वृन्दावन होटल राजामंडी के पास पहुंचे तो विपरीत दिशा से आते हुए बजाज स्कूटर संख्या यूं-U.H.M.-8991 के चालक ने स्कूटर को तेजी व लापरवाही के चलते हुए मोपेड में टक्कर मारी जिससे मो.आरिफ व भइय्ये गंभीर रूप से घायल हो गए और बाद में उन चोटों के कारण मो. आरिफ की मृत्यु हो गयी.
2. क्या विपक्षी स.-१ प्रश्नगत दुर्घटना के समय स्कूटर संख्या U.H.M.-8991 का स्वामी नहीं था जैसा कि प्रतिवाद पत्र कागज़ स.२१ के पारा ६ में उल्लेख किया गया है यदि हाँ तो प्रभाव.
3. क्या मोपेड स. यूं..पी 80-E- 2341 के स्वामी व बीमा कंपनी को वाद में पक्षकार न बनाये जाने के कारण वाद दोषपूर्ण है.
4. क्या प्रश्नगत दुर्घटना में मोपेड चालक की भी कोई लापरवाही थी यही हाँ तो प्रभाव.
5. याचीगण कोई प्रतिकर प्राप्त करने के अधिकारी है यदि हाँ तो कितना और किससे.
7. Learned counsel for the appellant has assailed the finding of the Tribunal on issue nos. 2, 4 and 5. The Tribunal while deciding the issue no.2 in respect of ownership of scooter on the date of accident has held that since on the date of accident, the scooter was registered in the name of appellant, therefore, liability to pay compensation is of the appellant. The Tribunal has decided the issue no.4 along with issue nos.1 and 3 and held on the basis of evidence and material on record that there was no negligence of the deceased in the accident. The Tribunal while deciding the issue no.5 in respect of quantification of compensation has held that the deceased was a carpenter but as there was no proof of income of deceased, therefore, Tribunal computed the compensation treating the income of deceased to be Rs.15,000/- per annum on the basis of income as provided in the second Schedule framed under Section 163-A of the Motor Vehicles Act. The Tribunal, thereafter, deducted 1/3rd from the aforesaid amount towards personal expenses of the deceased and, thereafter, by applying the multiplier of 17 awarded Rs.1,70,000/- towards loss of income. Besides above, Tribunal also awarded Rs.2,000/- towards funeral expenses. Thus, Tribunal awarded Rs.1,72,000/-, in total, as compensation along with 6% interest and fixed the liability upon the appellant to pay compensation.
8. Challenging the finding on issue no.2 in respect of ownership of scooter, learned counsel for the appellant has contended that appellant had sold the scooter on 24.03.2000 much before the date of accident to respondent no.6 and due intimation in respect of sale of scooter to the respondent no.6 was given by the appellant to the Regional Transport Officer on 26.05.2000 and thus, on the date of accident, he was not the owner of the scooter, and consequently, he cannot be fastened with the liability to pay compensation. He further contends that Tribunal has misread the definition of owner defined in Section 2(30) of the Act, 1988 and has ignored Section 50 of the Act, 1988 in holding the liability upon the appellant to pay compensation. According to him, as per Section 50(1) (a) (i) of the Act, 1988, the transferor of motor vehicle is required to inform the transfer of the vehicle to the concerned registering authority within whose jurisdiction transfer is affected within 14 days of the transfer and appellant in compliance of Section 50(1) (a)(i) has discharged his part of obligation as he had given due intimation to the concerned registering authority on 26.05.2000. Thus, submission is that as appellant has discharged his part of duty as contemplated under the Ac, 1988, the appellant could not be treated to be the owner of the scooter.
9. He further submits that according to Section 50(1)(b), a duty is also caste upon the transferee of the vehicle to report the transfer to the registering authority within whose jurisdiction the transferree has the residence or place of business where the vehicle is normally kept, 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 transferor in order that particulars of transfer of ownership may be entered in the certificate of registration. He further placed reliance upon Section 50 (3) of the Act, 1988 which provides that 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, they may be liable for an action as provided under sub section (3) of Section 50, and as in the instant case, owner has complied with the requirements of Section 50(1(a)(i) of the Act, and it is the respondent no.6 who had failed to comply his part of duty as provided in Section 50(1)(b), therefore, appellant is not responsible for non transfer of vehicle in the name of respondent no.6 and as such, appellant cannot be made liable to suffer for want of action on the part of registering authority in not taking any action against the respondent no.6 as provided in Section 50(3) of the Act, 1988.
10. Thus, he contends that as the appellant has discharged his part of duty as provided in Section 50(1) (a)(i) of the Act, 1988 the vehicle shall be deemed to have been transferred in the name of respondent no.6, and the appellant cannot be made liable to suffer for the fault of registering authority in not taking any action as provided under Section 50(3) of the Act, 1988 against the respondent no.6 and not entering the name of respondent no.6 in the registration certificate. In support of his aforesaid submission, he has placed reliance upon the judgement of Apex Court in the case of Panna Lal Vs. Shri Chand Mal and Others, 1980 ACJ 213. He further submitted that the judgement of Apex Court in the case of Naveen Kumar Vs. Vijay Kumar and Others (2018) 3 SCC 1 wherein Apex Court has held the liability of the owner whose name was registered in the registration certificate, in case of a motor vehicle accident, is not applicable in the facts of the present case.
11. On the issue of negligence, learned counsel for the appellant has placed reliance upon the testimony of PW-2 Asif to contend that PW-2 was not an eye witness which is evident from the testimony of PW-2 and, therefore, the Tribunal has erred in believing the testimony of PW-2 in holding that the accident had occurred due to the sole negligence of driver of scooter. In support of his said submission, he has placed reliance upon the judgement of this Court in the case of Guddi and Others Vs. New India Insurance Company Ltd. and Others 2012(6) AWC 5627 and judgement of Apex Court in the case of Indrani Raja Durai Vs. Madras Motor and General Insurance Company, 1996 (2) SCC 157.
12. Thus, the submission is that it was an accident of two vehicles coming from opposite direction and there was no eye witness of the accident, therefore, the manner in which the accident had taken place clearly reveals that there was some negligence of the deceased in the accident, and, thus, Tribunal should have reduced the compensation to the extent of 50% of the negligence of deceased in the accident.
13. I have considered the submissions of learned counsel for the appellant and perused the record.
14. It transpires from the record of the court below that appellant, though, has stated in his testimony that he had given due intimation of transfer of scooter to respondent no.6 on 26.05.2000 but no document or letter of owner dated 26.05.2000 is on record to buttress the contention of appellant that he had given due intimation of transfer to the Regional Transport Officer. Paper no. 40(ग) referred in the testimony of owner which also find reference in the judgement of Tribunal in issue no.2 is not a letter of appellant but is a postal receipt of UPC (Under Postal Certificate). The appellant has not filed the letter dated 26.05.2000 alleged to have been sent by him to the Regional Transport Officer, Agra intimating the transfer of the vehicle to the respondent no.6, and thus, the submission of learned counsel for the appellant, with regard to the intimation by appellant to the Regional Transport Officer, Agra in respect of transfer of vehicle is not supported by any document. Accordingly, in the facts of the present case, the contention of learned counsel for the appellant that he has complied with his part of duty as contemplated under Section 50 (1)(a) of the Act, 1988 is not proved. Therefore, in view of the aforesaid fact, the contention of learned counsel for the appellant that since he has discharged his obligation as contemplated under Section 50(1)(a) of the Act, 1988, therefore, he cannot be penalized for the fault of registering authority in not entering the name of respondent no.6 in the registration certificate is not sustainable being not supported by any evidence on record.
15. Even otherwise, the judgement of Apex Court in the case of Naveen Kumar (supra) squarely covers the controversy in the present case as undisputedly, the scooter on the date of the accident was registered in the name of appellant and the Apex Court has rendered the aforesaid judgement after considering the definition of owner in Section 2(30) and also the effect of Section 50(3) of the Act, 1988. Paragraphs 13 and 14 of the aforesaid judgement are being extracted herein below:-
"13. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression ''owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the ''owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression ''owner' in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was the ''owner' of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.
14. The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled."
16. Thus, the submission of learned counsel for the appellant on issue no.2 denying liability to pay compensation is not sustainable and is accordingly, rejected.
17. Now, coming to the question of negligence, the claim petition has been instituted under Section 163-A of the Act, 1988 and the claimants are required only to prove the occurrence of accident in a claim submitted on the basis of structured formula under Section 163-A of the Act, 1988, and in the instant case, occurrence of the accident has been proved and finding in respect of occurrence of the accident has not been disputed by the appellant, therefore, there was no occasion for the Tribunal to enter into the question of negligence of the accident. Thus, the second submission of learned counsel for the appellant in respect of contributory negligence is also not sustainable in the facts of the present case and as such, the same is rejected.
18. Thus, for the reasons given above, the appeal lacks merit and is accordingly, dismissed. Stay order, if any, stands vacated.
Order Date :- 19.07.2019 Sattyarth