Punjab-Haryana High Court
Indersen Gupta vs Amarvir Kaur & Orss. Hence on 17 February, 2012
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
FAO No. 5162 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No. 5162 of 2011
Date of decision:17.2.2012
Indersen Gupta Appellant
v.
Krishan Kumar and Others Respondents
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. R.S.Manhas, Advocate for the appellant
Mr. Mandeep Singh, Advocate for respondent Nos. 1 &
2 -claimants
Mr. Ashok Tyagi,advocate for respondent No.3-driver
None for respondent No. 4
....
JITENDRA CHAUHAN.J The present appeal has been filed by the appellant against the Award dated 27.5.2011 passed by the Motor Accident Claims Tribunal, Sonepat (for short the Tribunal) whereby an amount of Rs.5,38,400/- has been awarded as compensation to the claimants- respondents.
The brief facts of the case are that Krishan Kumar and Usha, claimants, filed claim petition No. 117 of 2009 under section 166 of the Motor Vehicles Act, 1988 ( hereinafter referred to as the Act) for compensation on account of the death of their son Som Dutt in motor vehicular accident. On 21.10.2008 at about 9.30 p.m. Som Dutt was going to village Machhri from Sonepat. He boarded a three-wheeler bearing registration No. HR-69-5436 alongwith other passengers. When the three- wheeler reached 2-1/2 kms. ahead of Village Barwasni towards Gohana side, a Maruti Van bearing registration No. DDA/3172 came from the FAO No. 5162 of 2011 2 opposite side. It was driven by respondent No. 1 in a rash and negligent manner and it struck against the three wheeler. As a result of the accident, three wheeler overturned and the Maruti Van fell into the ditch on the side of the three wheeler. Som Dutt received grievous injuries. He was taken to Civil Hospital, Sonepat but he succumbed to his injuries. The accident was witnesssed by Satish Kumar, Sube Singh and Sanjay Singh. FIR No. 346 dated 21.10.2008 under section 279/337/304-A IPC was registered in P.S.Sadar, Sonepat.
As per the claimants, their son was a student of B.A. Part III and was earning Rs. 6000/- p.m from tuition by teaching other students of the village.
Upon notice, respondent No.1, Sukhpal-driver of the Van filed written statement. He denied all the averments made in the claim petition.
Respondent No.2, Indersen Gupta (appellant in the present appeal) filed written statement. He alleged that on the day of accident i.e. On 21.10.2008, he was not the owner of the offending Van, as he had already sold it to one Nanak Chand, resident of Model Town, Sonepat on 24.3.2003/20.4.2003. He took the stand that the Van was stolen on 14.4.2002 from backside of his house at New Delhi. He reported the matter to the police. FIR No. 313 of 2002 was registered in Police Post Saket under Police Station Malviya Nagar, New Dehli. The Van was traced after sometime. It was got released on supardari and he sought permission to sell the same, from Illaqa Magistrate. Thereafter he sold the Van to Nanak Chand. He submitted letter Ex. R3 dated 20.4.2003 to the Licensing Authority, Sarai Kale Khan, New Delhi, where the Van was registered. According to respondent No.2, on the day of accident, Nanak Chand was FAO No. 5162 of 2011 3 the owner of the offending Van. On the disclosure of respondent No.2, Nanak Chand was impleaded as respondent No. 4 in the claim petition by the claimants. However, on the statement dated 11.11.2010 made by the counsel for the claimants, respondent No. 4, Nanak Chand was given up.
From the pleadings of the parties, the following issues were framed:-
1. Whether the death of deceased Som Dutt son of Krishan Kumar was caused in a road accident on 21.10.2008 allegedly due to rash and negligent driving of Van bearing No. DDA/3172 allegedly being driven by respondent No. 1 Sukhpal at that time? OPP
2. If issue No. 1 is proved to what amount of compensation the petitioners are entitled to and from whom? OPP
3. Whether respondent No.1 was not holding a valid and effective driving licence at the time of accident? OPR-3
4. Relief While deciding Issue No. 1, Ld. Tribunal observed that the accident was reported to the police by one Satish, son of Ram Kishan. He was an eye-witness to the occurrence and his testimony was not shattered.
FIR Ex.P6 was registered against respondent No.1. Respondent No.1, driver of offending Van admitted that he was facing prosecution in FIR Ex. P6. He denied having any knowledge of the registered owner of the van. From the evidence on record, it was proved that the accident took place due to rash and negligent driving of respondent No.1.
While deciding Issue Nos. 2 and 3, the Ld. Tribunal assessed FAO No. 5162 of 2011 4 the income of the deceased at Rs. 2400/- per month and by applying the guidelines framed in Sarla Verma (Smt.) and others v. D.T.C. And Another, 2009 (6) SCC 121, total compensation of Rs. 5,38,400/- was awarded to the claimants.
So far as the liability to pay the compensation was concerned, the Ld. Tribunal in para 10 of the Award, observed as under:-
"Coming on the point of liability to pay the compensation, by the findings of this Tribunal on Issue No.1, it has been clearly established on record that on the day of accident, respondent No. 1 was driving the offending van due to which deceased Som Dutt suffered injuries and succumbed to his injuries as due to rash or negligent driving of respondent No.1, it struck against the three wheeler in which deceased was boarding. Respondent No. 2 denied his liability to make the payment of compensation on the ground that prior to the day of accident, he had already sold the offending Van to respondent No.4. Initially, respondent No. 4 was impleaded as necessary party by the petitioners but he was given up by the counsel for petitioners on 11.11.2010. There is no dispute that prior to alleged selling of offending Van to respondentNo.4, respondent No. 2 was registered owner of it. Respondent No. 2 alleged that the offending Van was sold to respondent No. 4 on 24.3.2003 as per receipt Ex. RW1. Receipt Ex. RW1 has not been proved by respondent No.2. Mere exhibition of document into evidence does not dispense with the proof on this point. The view of the Tribunal is fully supported by the law laid FAO No. 5162 of 2011 5 down in AIR 1971 (SC) 1865. No efforts have been made by the respondent No. 2 to prove that receipt Ex. RW1 is bearing the signatures of respondent No.4. Nanak Chand. Receipt Ex. RW2 is unilaterally receipt. Then respondent No. 2 kept reliance on application dated 20.4.2003 according to which he informed the Motor Licensing Officer, Sarai Kale Khan, New Delhi intimating that he had sold the offending Van to respondent No. 4. This application Ex. R3 has not been proved according to the law such as by examining any official from Motor Licensing Authority, Sarai Kale Khan, New Delhi to say that on 20.4.2003 it was received in his/her office. The information to learned Judicial Magistrate vide letter Ex. R4 by respondent No.2 that he has sold the offending Van to respondent No 4 is having no bearing of respondent No.4. He has not produced any certified copy of order passed by Judicial Magistrate that as per the order by Judicial Magistrate, the respondent No. 2 informed about the sale of offending Van to respondent No.4. The correspondence like Ex.R4 is not permissible by the party with the judicial court. Ex.R6 Form No. 29 again nowhere shows that the offending Van was ever sold by respondent No. 2 to respondent No.4. Driving licence mark 'A', photo copy of ration card mark 'B', copy of receipt mark 'C' are pertaining to respondent No.4. Coming into these documents in the hand of respondent No.2, it is not proved that he sold the Van to respondent No.4. Respondent No. 2's own document mark 'C' i.e cash receipt dated 20.4.2003 contradicts FAO No. 5162 of 2011 6 his own document Ex. RW2 dated 24.3.2003. According to Ex.RW2 dated 24.3.2003, he received Rs. 34,000/-from respondent No. 4 and on 24.3.2003, he was in balance of Rs. 10,000/- whereas document mark 'C' dated 20.4.2003 according to which he received Rs. 44000/- from respondent No. 4 , respondent No.2 cannot wriggle out from his own documents Ex RW2 and mark 'C' which falsifies the stand of respondent No.2. So far other documents Ex. R3 to Ex. R7 are concerned including the statement of Satish, Sanjay, Sube Singh are having no bearings on the merits of this case, because proceedings before the Motor Accident Claim Tribunal and Criminal Court are to run independently. Neither, criminal court is bound by the verdict of the Tribunal nor the Tribunal is bound by the verdict of Criminal Court pertaining to same accident. From the oral as well as documentary evidence on record, it has clearly been established on the record that on the day of accident, the respondent No. 2 was the registered owner of the offending Van, even assuming he had sold the same to respondent No.4 till the date of accident, the ownership was not transferred in the name of respondent No.4 in the record of concerned Motor Vehicle Licencing Authority. Therefore, the respondent No. 2 can not escape from his liability to pay the compensation to the petitioners merely on the ground that prior to the accident he had already sold the offending Van to respondent No.4. The view of this Tribunal is further cemented by the law laid down in 2006 (I) FAO No. 5162 of 2011 7 Accidents Compensation Judicial Reports 472, Punjab and Haryana High Court, Vipin Kumar Sharma v Jagwant Kaur and Others, 2003 (3) Latest Judicial Reports 456, Punjab and Haryana High Court, Om Parkash v. Kamlesh and Anr. And 2009 (2) Latest Judicial Reports 692 Punjab and Haryana High Court, Rulda Singh & Ors vs. Amarvir Kaur & Orss. Hence, respondents No. 1 & 2 are held jointly and severally liable to make the payment of compensation to the petitioners. Issues No. 2 partly goes in favour of the petitioners and issue No. 3 goes against the respondents No. 1 & 2.
After the appreciation of entire evidence on record and hearing the counsel for the parties, the Ld. Tribunal awarded total compensation to the tune of Rs. 5,38,400/- to the claimants.
Aggrieved against the same, the appellant-respondent No.2 preferred this appeal.
Learned counsel for the appellant contended that the Van in question was sold to Nanak Chand on 24.3.2003 , which is proved from Ex. RW1. He placed reliance on National Insurance Co. Ltd. v. Deepa Devi and Others, 2008 ACJ 705 and contended that once the vehicle was not in the effective control of the appellant, the liability has to shift to the subsequent purchaser i.e Nanak Chand. He further contended that claimants filed an application on 3.8.2009 for impleading respondent No. 4 being a necessary party, but thereafter on 11.11.2010, he was given up. He asserts that the vehicle not being in the custody and effective control of the appellant, the liability cannot be fastened upon him. He submitted that the Tribunal has wrongly assessed the income of deceased at Rs. 3000/-, whereas the FAO No. 5162 of 2011 8 deceased being a student was not earning anything. It was further submitted that the multiplier applied by the Ld. Tribunal is on the higher side and it should have been applied as per the age of the claimants-parents of the deceased.
On the other hand, learned counsel for respondents No. 3 submitted that the appellant being the registered owner cannot escape the liability. He contended that the vehicle in question was sold on 24.3.2003. The accident was occurred on 21.10.2008 . The appellant did not take any step to get the ownership changed in the name of the subsequent purchaser. He further contended that the appellant has not challenged the order vide which respondent No. 4 Nanak Chand was given up by the claimants and at this stage, the said order cannot be re-opened as it has attained finality. He submitted that at the time of accident, deceased was a student and the Ld. Tribunal has rightly assessed his income as Rs. 3000/- p.m and awarded compensation to the claimants.
I have heard the learned counsel for the parties and perused the record.
It is admitted case of the parties that the appellant remained the registered owner of the offending Van. As per case of the appellant, the offending Van was sold way back in the year 2003 to Nanak Chand. No effort was made by the appellant to transfer the vehicle in the name of the purchaser. He remained the registered owner of the Van in the records of the R.T.O. Therefore, the appellant cannot escape from his liability. The case law cited by learned counsel for the appellant in National Insurance Co. Ltd. v. Deepa Devi (supra) is not applicable to the facts of the present case. In that case, the vehicle was requisitioned by the District Magistrate FAO No. 5162 of 2011 9 for election duty. The owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. The registered owner lost control over the vehicle and the driver had to drive the vehicle according to the direction of the officer of the State. The decision in that case was rendered on the special facts of that case.
In Pushpa @ Leela and others v. Shakuntala and Others, 2011 (2) RCR (Civil) 616, Hon'ble the Apex Court while dealing with somewhat similar proposition of law, that the owner did not take any step for the change of the name of owner in the certificate of registration of the vehicle, in paras 13 and 14 observed as under:-
"13 Again, in P.P.Mohammed v. 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 No. 4 and thereafter to Respondent No.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 FAO No. 5162 of 2011 10 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"
"14. 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."
In the case in hand, the registered owner Indersen Gupta remained the registered owner of the Van in the records of the R.T.O. Therefore, he cannot escape from his liability to pay the compensation to the claimants. It is held that the appellant-Indersen Gupta, registered owner is vicariously liable to pay the compensation alongwith the driver FAO No. 5162 of 2011 11 jointly and severally.
The argument of the learned counsel for the appellant that the income of the deceased was wrongly assessed by the Ld. Tribunal and compensation was awarded on the higher side finds force in view of the observations made by Hon'ble the Apex Court in R.K.Malik and another v Kiran Pal and Others, 2009 ACJ 1924. In that case, the notional income of the deceased, boys and girls between the age group of 10 and 18, was assessed at Rs. 15,000/- p.a. In paras 15 and 16 of of judgment, it was observed as under:-
"15. The real problem that arises in the cases of death of children is that they are not earning at the time of the accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. In this context, Lord Atkinson aptly observed in Taff Vale Rly C. v. Jenkins, (1911-13) All ER 160, as follows:-
"In the case of death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the FAO No. 5162 of 2011 12 child had lived."
In the instant case, the deceased was a student of 20 years. Under the Second Schedule to the Act in the case of a non-earning person, his income is notionally estimated at Rs. 15,000/- per annum.
So far as the multiplier applied by the Ld. Tribunal is concerned, this Court is of the opinion that as per the guidelines framed in Sarla Verma's case (supra), the multiplier applicable should be as per the age of the parents-claimants of the deceased. On that footing, the multiplier of 11 is to be applied in this case, as the parents-claimants of deceased are of the age group of 51-55 years.
In view of the above, the award passed by the Ld. Tribunal is modified in the following manner:-
Notional Income = Rs. 15,000/- per annum
less Dependency= 50%
( 15000 - 7500) = Rs. 7,500/- per annum
Multiplier applicable= 11
Amount to be
awarded Rs. 82,500/-
The amount of Rs. 20,000/- awarded under the various heads shall remain the same. The findings on Issue No.2 are modified accordingly.
In view of the foregoing discussion, the appeal filed by the appellant is dismissed. However, the award dated 27.5.2011 passed by the Ld. Tribunal is modified to the above extent. Respondents No. 1 & 2 i.e the driver and registered owner are jointly and severally liable to make the payment of compensation, as ordered by the Ld. Tribunal.
(JITENDRA CHAUHAN) JUDGE 17.2.2012 MS