Madhya Pradesh High Court
Satish Sanghi vs Mihir Kumar Joshi And Ors. on 20 January, 1993
Equivalent citations: II(1993)ACC648, 1993ACJ893
JUDGMENT R.D. Shukla, J.
1. This appeal is directed against the judgment and award dated 4.2.1983 of the End Additional Motor Accidents Claims Tribunal, Indore, passed in Claim Case No. 195 of 1979, whereby while awarding the compensation to claimant-applicant Mihir Kumar (respondent No. 1 here), the respondent Nos. 2 and 4 have been jointly made liable for payment of compensation to the tune of Rs. 17,333.08 with interest at the rate of 6 per cent per annum.
2. The brief history of the case is that on the date of incident, i.e., on 14.5.1979 at about 9.15 p.m. the claimant Mihir Kumar was going on his scooter No. CPF 3318 from Regal Theatre towards Palasia. His younger sister Kamakshi Joshi was sitting on the pillion. The motor car No. MPI 1144 driven by Abdul Salam (respondent No. 2 here) came from the front of Anand Bhawan, M.G. Road. The motor car was in an excessive speed. It dashed against the scooter resulting in injuries to the claimant and damaged the scooter as well. The claimant was taken to the hospital. He was treated and operated twice. There was a fracture of right femur. Nailing had to be done. This has created deficiency in the walking.
3. The claimant was working as an Engineer in Gajara Gears. He could not attend duty for months together. The claimant had applied before the Union Public Service Commission and in two private concerns, namely, J.K. Synthetics and Vaishnav Polytechnic, but he could not appear in the interview because of the accident. His leg has also shortened by about 172 inch. Hence he claimed Rs. 10,000/- for pain and mental agony, Rs. 5,000/- towards expenses for medical treatment, Rs. 15,000/- possible expenses towards the transport facilities because of the physical infirmity, Rs. 10,000/- towards loss of wage earnings, Rs. 50,000/- for permanent partial disability. Thus, he claimed a sum of Rs. 90,000/- as compensation. The non-applicant No. 2 (appellant here) denied the fact of accident, negligent driving and further pleaded that on the date of incident this appellant (NA 2) was not the owner of the vehicle as he had sold it to Mukhtiyar Ahmed (respondent No. 3 here) on a price of Rs. 16,500/-. Out of that Rs. 11,875/- was paid by him, and thereafter the possession was also delivered to him. The registration of the vehicle stood in the name of the appellant (NA 2) as the whole of the sale amount was not paid by respondent No. 3. It has also been asserted that the driver was neither the agent nor servant of the present appellant (NA 2).
4. The respondent No. 3, Mukhtiyar Ahmed, filed separate reply to the claim petition and while denying the fact of rash and negligent driving and the injuries to the claimant it was pleaded by him that vehicle was purchased by him on hire-purchase basis and had kept the vehicle for repairs with one Sardarkhan, mechanic, who without his consent gave the vehicle for driving to Abdul Salam, driver. He, therefore, is not responsible for payment of any compensation.
5. After hearing, the learned Tribunal in an exhaustive judgment has held that the accident occurred due to rash and negligent driving of the driver of motor car No. MPI 1144 and thereafter the driver ran away from the spot. The claimant was thrown from the scooter and sustained injuries including the fracture of right femur. He had to be operated twice for the same. He was under plaster for months and the nailing had to be done. The claimant was earning Rs. 650/- p.m. at the time of accident. The learned Tribunal has further held that the driver was plying the vehicle as an agent of non-applicant-respondent No. 2, i.e., present appellant and Mukhtiyar Ahmed, respondent No. 3. An award as above was granted in favour of the claimant and all the NAs including present appellant were made jointly and severally liable for payment of compensation. Now, this appeal has been filed by present appellant mainly on the grounds that the appellant was not the owner of the vehicle on the date of incident as the vehicle was sold to Mukhtiyar Ahmed (respondent No. 3) and possession of the same was also given to him.
6. The respondent No. 1-claimant has also filed a cross-objection and prayed for compensation to the tune of Rs. 50,000/-. Abdul Salam, driver and Mukhtiyar Ahmed, alleged transferee, have not filed any appeal. There is no challenge to the fact of accident and rash and negligent driving.
7. The contention of the learned counsel for the appellant is that the person in possession of the vehicle at the time of accident was Mukhtiyar Ahmed and his driver Abdul Salam and, therefore, he is not liable to make payment of the compensation either jointly or severally. The definition of owner as given in Section 2(30) of the Motor Vehicles Act runs as follows:
(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.
8. Now this has to be seen as to whether there was any agreement or agreement of lease or hypothecation or whether the motor vehicle was subject to hire-purchase? Learned counsel for the appellant has submitted that since the purchaser of the vehicle, Mukhtiyar Ahmed, had admitted the fact of hire-purchase the same ought to be accepted. This court is not in agreement with the contention of the learned counsel. As admittedly the registration of the vehicle stood in the name of the appellant on the date of accident normally the presumption is that vehicle belongs to the person in whose name it is registered and shown as such in the records kept under the Motor Vehicles Act and the Rules thereunder. Therefore, the burden lies on the appellant to show that the possession of the vehicle is covered under the exceptions given in the definition referred to above. The appellant who was NA 2 before the Tribunal has examined Mohanlal Bhagat, who was working as General Manager and attorney holder in the company owned by the appellant, as a witness in support of his contention. He has stated that the vehicle was sold to Mukhtiyar Ahmed on a price of Rs. 20,000/- and Rs. 6,000/- was paid the same day by him. The NA 2, appellant, has also filed a document (a receipt) regarding payment of Rs. 6,000/- as Exh. 1 of NA 2. This statement of Mohanlal Bhagat is in variance with the assertions made in the written statements. In the W.S. they have stated that the vehicle was sold on a price of Rs. 16,500 and Rs. 11,875/- was paid by Mukhtiyar Ahmed towards the sale price (refer para 5 of the W.S.). Thus, the appellant's witness stands contradicted from the assertions made in the pleadings. During cross-examination this witness has admitted that he was making a statement on the basis of a record kept with the company. That record or the copies thereof have not been produced in the court. In para 12 of his statement he has accepted that he did not file the record and has not brought them as it was not necessary to produce them in the court. From the evidence of this witness it is borne out that the company is keeping regular record of sale and agreement. It appears the entries of payments made by the purchasers are also made and records of the same are kept and maintained regularly. In the presence of written document an oral statement of this witness cannot be accepted, and an inference has to be drawn against the appellant that had the agreement been produced before the court it must have been against the interest of the appellant. No other document of any agreement of hypothecation, lease or hire-purchase or any other agreement has been filed in the court and the document pertaining to the transfer of the vehicle has also been withheld from the court and, therefore, it has rightly been held by the learned Tribunal that the appellant (NA 2) cannot escape from his liability.
9. Learned counsel for the appellant has submitted that the definition of owner given in Section 2(30) of the Motor Vehicles Act refers to the independent agreement as well, as there is a comma after word 'hire-purchase' and a further comma after the word 'agreement' and this agreement can be other than the agreement of hire-purchase, lease or hypothecation. This contention of the learned counsel does not appear to be very sound. However, even if this contention is accepted, there is no document of independent agreement. There is a variance in the pleadings and proof. The document regarding alleged agreement has been withheld from the court and, therefore, in the opinion of this court it has rightly been held that the appellant was the owner of the vehicle at the relevant period, i.e., at the time of accident.
10. Learned counsel for the appellant referred to a case reported in State of Madhya Pradesh v. Premabai 1979 ACJ 503 (MP) and submitted that a person in possession of the vehicle under the hire-purchase agreement will be deemed to be the owner of the vehicle. That proposition of law appears to be correct and I also agree with it, but in this case the very fact of agreement of hire-purchase or any other agreement has not been proved. Thereafter, the learned counsel for the appellant referred to another case reported in Divisional Manager, Life Insurance Corporation of India v. Raj Kumari Mittal 1985 ACJ 179 (Allahabad) and further submitted that the financier of the vehicle cannot be made liable to pay the compensation. In that case also there was an agreement of hire-purchase, the payments were to be made in instalments and vehicle was in the possession of hirer, but this is not the case here. The very fact of agreement or agreement of hire-purchase has not been proved and, therefore, this case also does not help the appellant.
11. As against it learned counsel for the respondents has referred to cases reported in Shankerlal v. Shankerlal 1988 ACJ 866 (Rajasthan), United India Fire & Genl. Ins. Co. Ud. v. Kanchanbai 1981 ACJ 554 (MP) and Geetabai v. Hussainkhan 1985 ACJ 44 (MP) and submitted that since the appellant continued to be the registered owner and this accident was caused to a third party and, therefore, registered owner is liable to satisfy the award. I am in agreement with the proposition referred to above. In the opinion of this court, therefore, the appellant has rightly been held liable to satisfy the claim along with other NAs.
12. Now, so far as the cross-objection filed by the claimant-respondent No. 1 is concerned, learned Tribunal has awarded Rs. 349.70 towards the medical expenses, but this fact has not been taken into consideration that during the ailment and the plaster in his leg the claimant must have taken some special diets and some money must have been spent in coming, going and remaining in the hospital and, therefore, in the opinion of this court that deserves to be enhanced and a minimum amount of Rs. 1,000/- was required to be given for medical treatment in all including the expenses for transport and special diet.
13. Learned Tribunal has awarded Rs. 275.61 plus Rs. 5,200/- plus Rs. 122.82; in all Rs. 5,598.43 for the loss of earnings. He has tried to meticulously calculate the loss of earnings on the basis of evidence, but looking to the evidence of the claimant and the doctors it is apparent that the claimant could not attend his duties and earn from the date of accident, i.e., 14.5.1979 to mid of April, 1980, about 11 months. The claimant has also stated in para 9 that he could not work for 11 months. Thus, loss of earning comes to Rs. 7,150/- which the claimant is entitled to get, as he was getting Rs. 650/- p.m. at the time of accident.
14. The claimant must have suffered physical pain and agony. His leg has shortened by 1V2". This must have decreased his efficiency. He being an engineer would be facing difficulties in climbing up and walking fast for whole of his life. In the opinion of this court, therefore, the claimant is entitled for Rs. 15,000/- as general damages including damage for the pain and suffering. Thus, the whole compensation comes to Rs. 1,000/- + Rs. 7,150/- + Rs. 15,000/- = Rs. 23,150/-. The claimant is further entitled to the interest on the amount at the rate of 12 per cent per annum from the date of application till realisation.
15. As a result, the appeal fails, but the cross-objection of the respondent No. 1 is sustained and the compensation awarded to him is enhanced from Rs. 17,333.08 to Rs. 23,150/-. The claimant is further entitled to an interest at the rate of 12 per cent per annum from the date of application till realisation on the amount of compensation estimated above. Any amount paid or deposited by the appellant or respondent Nos. 2 and 3 may be given an adjustment against the amount awarded above.
16. Appellant shall bear his own costs and shall pay the costs of the respondents. Counsel's fee Rs. 500/-.