Himachal Pradesh High Court
Lakhwinder Singh vs Seema Devi And Others on 7 October, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.314 of 2011 with FAO No.7 of 2013.
Reserved on : 30.09.2016.
Pronounced on : 7.10..2016
1. FAO No.314 of 2011 Lakhwinder Singh .....Appellant .
Versus Seema Devi and others ..... Respondents
2. FAO No.7 of 2013 Sewa Singh and Another .....Appellants Versus Lakhwinder Singh and others ..... Respondents of Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice rt Whether approved for reporting?
FAO No.314 of 2011:
Yes.
For the appellants: Mr.Jagdish Thakur, Advocate, for appellant No.1.
Appellant No.2 deleted.
For the respondents: Mr.Karan Singh Kanwar, Advocate, for respondents No.1 to 7.
Mr.B.C. Negi, Senior Advocate, with Mr.Narender Singh Thakur, Advocate, for respondents No.8 and 9.
FAO No.7 of 2013:
For the appellants: Mr.B.C. Negi, Senior Advocate, with Mr.Narender Singh Thakur, Advocate, for the appellants.
For the respondents: Mr.Jagdish Thakur, Advocate, for respondent No.1.
Mr.Karan Singh Kanwar, Advocate, for respondents No.3 to 9.
Respondent No.2 deleted.
___________________________________________________________ ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 2 Mansoor Ahmad Mir, Chief Justice Both these appeals are directed against a common award, dated 7th June, 2011, passed by the Motor .
Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P., (for short, the Tribunal), whereby compensation to the tune of Rs.3,94,000/, alongwith interest at the rate of 7.5% per annum from the date of filing of the claim petition till of realization, came to be granted in favour of the claimants.
The driver, the owner under sale agreement Gurdeep Singh rt and the registered owners i.e. Sewa Singh & Ranbir Singh were saddled with the liability, (for short, the impugned award).
2. Feeling aggrieved, the driver and the owner have challenged the impugned award by the medium of FAO No.314 of 2011, while the registered owners filed FAO No.7 of 2013 questioning the impugned award, on the grounds taken in the memos of appeals.
Facts:
3. Claimants, being widow, parents, sons and daughters of deceased Nar Singh, invoked the jurisdiction of ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 3 the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), for grant of compensation to the tune of Rs.20.00 lacs, as per the break-ups given in the claim .
petition. It was averred that on 29th April, 2007, at about 8.30 a.m., the deceased, namely, Nar Singh, aged about 32 years, alongwith Gurmeet Singh, was traveling on tractor bearing No.HR-11-5553 to village Jangla Bhood to sell wheat of straw. It was further averred that at the relevant time, the tractor was being driven by its driver, namely, Lakhwinder rt Singh, and when the said tractor reached at Jangla Bhood, due to the rash and negligent driving of the driver of the offending tractor, it met with an accident, resulting into the death of Nar Singh. In regard to the accident, FIR No.86/07 was registered at Police Station, Nahan. It was also averred that the deceased was an agriculturist and was earning Rs.15,000/- per month from that vocation. Hence the claim petition.
4. Respondent No.1 i.e. Lakhwinder Singh (driver) and respondent No.2-C Gurdeep Singh resisted the claim petition by filing replies. Respondent No.2-A Sewa Singh and ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 4 respondent No.2-B Ranvir Singh did not appear before the Tribunal and were proceeded against ex parte.
5. On the pleadings of the parties, the Tribunal .
framed the following issues:
"1. Whether Nar Singh died on account of rash and negligent driving of the Tractor by respondent No.1 Lakhwinder Singh, as alleged? OPP
2. In case issue No.1 is proved in affirmative, to what of amount of compensation the petitioners are entitled to and from whom? OPP
3. Whether the petition is bad for misjoinder of the rt respondents? OPR-1 & 2C.
4. Whether the petition is not maintainable in the present form? OPR-1 & 2C
5. Relief."
6. Parties have led evidence. In order to prove their case, claimants examined PW-2 Sajad Ali, PW-3 Sukhpal Singh, PW-4 Umeed Singh, PW-5 Shakil Ahmed Sheikh and one of the claimants i.e. Seema Devi appeared as PW-1. On the other hand, respondent No.1 Lakhwinder Singh and respondent No.2-C Gurdeep Singh appeared in the witness box as RW-1 and RW-4, respectively. Respondents also ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 5 examined Sheetal Kumar as RW-2 and ASI Om Kishan as RW-3.
7. The Tribunal after scanning the pleadings as well .
as the entire evidence allowed the claim petition and saddled respondents No.1 & 2-C (jointly and severally), and respondents No.2-A and 2-B (jointly and severally), with the liability in the ratio of 50 : 50.
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8. Feeling aggrieved, original respondents No.1 and 2-C (Lakhwinder Singh and Gurdeep Singh) filed FAO No.314 rt of 2011 and original respondents No.2-A and 2-B (registered owners) challenged the impugned award by way of FAO No.7 of 2013.
9. During the pendency of the appeals, Gurdeep Singh (respondent No.2 in FAO No.7 of 2013 and appellant No.2 in FAO No.314 of 2011) expired, constraining the appellants to move an application, being CMP No.7132 of 2015 in FAO No.7 of 2013, for deletion of name of said Gurdeep Singh, since the sole legal representative of Gurdeep Singh, namely, Lakhwinder Singh was already on record. Accordingly, the said application was allowed vide ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 6 order dated 15th July, 2015 and the name of Gurdeep Singh was ordered to be deleted from the array of respondents.
Thereafter, in FAO No.314 of 2011 also, the name of said .
Gurdeep Singh, being appellant No.2, was deleted on the request of the learned counsel for the appellant.
10. I have heard the learned counsel for the parties and gone through the record.
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11. Learned counsel for the appellant in FAO No.314 of 2011 argued that the Tribunal has fallen into an error in rt saddling Lakhwinder Singh and Gurdeep Singh with the liability to the extent of 50% for the reason that the appellant Lakhwinder Singh was not driving the offending tractor at the time of accident, but it was the deceased who was driving the said tractor and the deceased himself was responsible for the accident. Further argued that the registered owners have to satisfy the award.
12. The learned counsel for the appellants in FAO No.7 of 2013 argued that the appellants Sewa Singh and Ranvir Singh had already sold the vehicle in favour of Gurdeep Singh. Therefore, it was submitted that the Tribunal ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 7 has wrongly fastened the liability on them to the extent of 50%.
13. After hearing the learned counsel for the parties, .
the following questions emerge for determination in these appeals:
(i) Who was driving the offending vehicle rashly and negligently at the time of accident?
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(ii) Whether the Tribunal has rightly saddled Lakhwinder Singh & Gurdeep Singh with the liability to the extent of rt 50%, and Sewa Singh & Ranvir Singh to the extent of 50%?
(iii) Who is to be saddled with the liability?
14. The claimants have pleaded in the claim petition that Lakhwinder Singh was driving the offending tractor at the relevant point of time. In order to prove the said factum, the claimants examined PW-2 Sajad Ali, who has specifically deposed that at the time of accident, Lakhwinder Singh was driving the offending tractor.
15. On the other hand, the said Lakhwinder Singh and Gurdeep Singh (father of Lakhwinder Singh) have ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 8 averred in their replies that the deceased was himself driving the offending tractor at the time of accident, have examined one Sheetal Kumar as RW-2 who stated that the .
offending tractor was being driven rashly and negligently by the deceased himself at the time of accident.
16. FIR No.86/07 (Ext.PW-1/B) was registered by Gurmeet Singh in Police Station Nahan, was one of the of occupants in the offending tractor at the time of accident.
In the FIR, it was reported that Lakhwinder Singh was driving rt the offending tractor at the time of accident. However, afterwards, the informant Gurmeet Singh resiled from the said statement during investigation and stated that the FIR was recorded under compulsion. But, the said Gurmeet Singh has not been examined as witness before the Tribunal, thus adverse inference has to be drawn.
17. The contents of the first information report recorded with promptitude has to be given credence. In the instant case, the FIR was registered immediately after the accident and the first version, the informant Gurmeet Singh has given, was that at the time of accident, Lakhwinder ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 9 Singh was driving the offending tractor. The Tribunal has rightly scanned the evidence and has not relied upon the statement of RW-2 Sheetal Kumar. The contents of the FIR .
and the statement of PW-2 Sajad Ali do, prima facie, establish that Lakhwinder Singh was driving the offending tractor at the time of accident in which deceased Nar Singh lost his life.
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18. The Tribunal while coming to the conclusion that Lakhwinder Singh was driving the offending tractor at the rt time of accident, has rightly made detailed discussion in paragraph 13 of the impugned award. The said findings are borne out from the records and are accordingly upheld.
Question No.(i) is answered accordingly.
19. Appellants, namely, Sewa Singh and Ranvir Singh, registered owners, have specifically pleaded in the appeal that though they were the registered owners of the offending vehicle, but, much prior to the accident, they had sold it to Gurdeep Singh, (father of Lakhwinder Singh) and said Gurdeep Singh was in possession of the offending tractor at the relevant time and the vehicle was under his ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 10 control. The stand of the registered owners is fortified by the plea taken by Lakhwinder Singh and Gurdeep Singh, who have pleaded in the replies filed by them to the claim .
petition, that Lakhwinder Singh was not driving the offending vehicle, but deceased Nar Singh was driving the same. In case the vehicle was not in the possession of Gurdeep Singh, he would not have taken such a stand while defending the of claim petition.
20. Apart from it, there is ample documentary rt evidence available on the record to show that the registered owners had already sold the offending vehicle to Gurdeep Singh. During investigation, the offending vehicle was seized off by the police, Gurdeep Singh filed an application (Ext.PA) before the Chief Judicial Magistrate concerned for the release of the same, being the owner of the said vehicle. Alongwith the said application, he also annexed hire purchase agreement Ext.PD, which shows that the said agreement was entered into between the registered owners (Sewa Singh and Ranvir Singh) and Gurdeep Singh on 23rd March, 2006 and was duly attested ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 11 by Notary Public. The said agreement does disclose that the registered owners received full and final payment of the offending vehicle, had no objection if the vehicle was .
transferred in the name of Gurdeep Singh and would not be responsible for taxes, challans, accident etc. etc. after the date of execution of the said agreement i.e. 23rd March, 2006.
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21. Perhaps, when the earlier application was not granted, Gurdeep Singh filed another application, dated rt 16th May, 2007, before the Chief Judicial Magistrate concerned (Ext.PF) for the release of the offending vehicle, alongwith the Special Power of Attorney (Ext.PG) of the registered owners and the Chief Judicial Magistrate released the vehicle in favour of Gurdeep Singh vide order dated 16th May, 2007. Spurdari bond Ext.PJ was executed by Gurdeep Singh. It is also not the case of Gurdeep Singh that, on release, he had not taken the offending vehicle on Spurdari.
22. The hire purchase agreement was exhibited before the Tribunal as Ext.PD, Lakhwinder Singh and Gurdeep Singh have not objected to the same, though ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 12 registered owners were set ex parte, are precluded from raising any objection about the admissibility of the same at a later stage.
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23. The Apex Court in case titled as Rakesh Kumar & Etc. vs. United India Insurance Company Ltd. & Ors. Etc. Etc., JT 2016 (6) SC 504, has held that once the licence was proved and marked in evidence without any objection by of the insurance company, it had no right to raise any objection about its admissibility at a later stage. It is apt to rt reproduce paragraph 20 of the said decision hereunder:
"20. First, the driver of the offending vehicle (N.A.-2) proved his driving license (Exhibit-R1) in his evidence. Second, when the license was proved, the Insurance Company did not raise any objection about its admissibility or manner of proving. Third, even if any objection had been raised, it would have had no merit because it has come on record that the original driving license was filed by the driver in the Court of Judicial Magistrate First class, Naraingarh in a criminal case arising out of the same accident. Fourth, in any event, once the license was proved by the driver and marked in evidence and without there being any objection by the Insurance Company, the Insurance Company had ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 13 no right to raise any objection about the admissibility and manner of proving of the license at a later stage (See Oriental Insurance Company Ltd. Vs. Premlata Shukla & Ors., 2007 13 SCC 476 and lastly, the .
Insurance Company failed to adduce any evidence to prove that the driving license (Ex.R1) was either fake or invalid for some reason."
24. Thus, from the perusal of the hire purchase of agreement, coupled with the discussion made herein above, it becomes crystal clear that the offending vehicle was in the possession of Gurdeep Singh at the time of rt accident.
25. The Apex Court in case titled as HDFC Bank Ltd.
vs. Kumari Reshma and Ors, 2014 AIR SCW 6673 held that a person who is in possession of the vehicle in terms of a hire purchase agreement or agreement of lease or agreement of hypothecation is the owner of the said vehicle. It is apt to reproduce paragraphs 10 and 24 of the said judgment hereunder:
"10. On a plain reading of the aforesaid definition, it is demonstrable that a person in whose name a motor vehicle stands registered is the owner of the vehicle ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 14 and, where motor vehicle is the subject of hire- purchase agreement or an agreement of hypothecation, the person in possession of the vehicle under that agreement is the owner. It also stipulates .
that in case of a minor, the guardian of such a minor shall be treated as the owner. Thus, the intention of the legislature in case of a minor is mandated to treat the guardian of such a minor as the 'owner'. This is the first exception to the definition of the term 'owner'. The of second exception that has been carved out is that in relation to a motor vehicle, which is the subject of hire- purchase agreement or an agreement of lease or an rt agreement of hypothecation, the person in possession of vehicle under that agreement is the owner. Be it noted, the legislature has deliberately carved out these exceptions from registered owners thereby making the guardian of a minor liable, and the person in possession of the vehicle under the agreements mentioned in the dictionary clause to be the owners for the purposes of this Act.
24. On a careful analysis of the principles stated in the foregoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 15 violation of the terms of the policy under which the insurer can seek exoneration."
26. The Apex Court further held that the person who .
is in actual possession of the vehicle and is under control of the same at the time of accident has to satisfy the liability. It is apt to reproduce paragraphs 13, 15, 16 and 25 hereunder:
"13. In this context, we may refer to a two-Judge of Bench decision in Rajasthan State Road Transport Corporation V. Kailash Nath Kothari & Others, 1997 7 SCC 481. In the said case, plea was taken by the rt Rajasthan State Road Transport Corporation (RSRTC) before the High Court that as it was only a hirer and not the owner of the bus, it could not be fastened with any liability for payment of compensation but the said stand was not accepted. It was contended before this Court that the Corporation not being the owner of the bus was not liable to pay any compensation arising out of the accident because driver who was driving the bus at the relevant time, was not in the employment of the owner of the bus and not of the Corporation and hence, it could not be held vicariously liable for the rash and negligent act of the driver. The Court referred to the definition in Section 2(3), which defines "contract carriage", Section 2(19), which defines the "owner", Section 2(29), which defines "stage carriage" and ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 16 Section 42 that dealt with "necessity of permits". Be it stated, these provisions reproduced by the Court pertained to Motor Vehicles Act, 1939 (for short, 'the 1939 Act'). The owner under the 1939 Act was defined .
as follows:
"2. (19) 'owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hirepurchase agreement, the person in possession of the vehicle under that agreement;"
of The Court referred to the conditions 4 to 7 and 15 of the agreement and in that context held thus:
"The admitted facts unmistakably show that the vehicle in question was in possession and under the actual control of RSRTC for the purpose of rt running on the specified route and was being used for carrying, on hire, passengers by the RSRTC. The driver was to carry out instructions, orders and directions of the conductor and other officers of the RSRTC for operation of the bus on the route specified by the RSRTC".
While dealing with the definition of the owner under the 1939 Act, the Court ruled that the definition of owner under Section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of "owner" to the registered ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 17 owner only would in a case where the vehicle is in the actual possession and control of the hirer would not be proper for the purpose of fastening of liability in case of an accident. The liability of the "owner" is vicarious for .
the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident.
15. In this context, it is profitable to refer to a two-
of Judge Bench decision in National Insurance Co. Ltd. V. Deepa Devi & Ors., 2008 1 SCC 414. In the said case the question arose whether in the event a car is rt requisitioned for the purpose of deploying the same in the election duty, who would be liable for payment of compensation to the victim of the accident in terms of the provisions of 1988 Act. The Court referred to the definition of 'owner' in the 1939 Act and the definition of 'owner' under Section 2(30) of the 1988 Act. In that context, the Court observed that the legislature either under the 1939 Act or under the 1988 Act had visualized a situation of this nature. The Court took note of the fact that the respondent no. 3 and 4 continued to be the registered owners of the vehicle despite the fact that the same was requisitioned by the District Collector in exercise of the power conferred upon him under the Representation of People Act, 1951 and the owner of the vehicle cannot refuse to abide by the ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 18 order of requisition of the vehicle by the District Collector. Proceeding further, the Court ruled thus:
"...... While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of .
the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover. He has no say as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive of a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle rt remains under the control of the State and/or its officers, the owner is only entitled to payment of compensation therefor in terms of the Act but he cannot not exercise any control thereupon. In a situation of this nature, this Court must proceed on the presumption that Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation, the statutory definitions contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view.
16. Elaborating the concept, the Court referred to Mukesh K. Tripathi V. Senior Divisional Manager LIC, 2004 8 SCC 387, Ramesh Mehta V. Sanwal Chand Singhvi, 2004 5 SCC 409, State of Maharashtra V. Indian Medical Assn., 2002 1 SCC 589, Pandey & Co. Builders (P) Ltd., V. State of Bihar, 2007 1 SCC 467 and placed ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 19 reliance on Kailash Nath Kothari , National Insurance Co. Ltd. V. Durdadahya Kumar Samal, 1988 2 TAC 25 and Chief Officer, Bhavnagar Municipality V. Bachubhai Arjanbhai, 1996 AIR(Guj) 51 and eventually .
opined the State shall be liable to pay the amount of compensation to the claimant and not the registered owner of the vehicle and consequently the appellant therein, the insurance company.
25. In Purnya Kala Devi , a three-Judge Bench has of categorically held that the person in control and possession of the vehicle under an agreement of hypothecation should be construed as the owner and rt not alone the registered owner and thereafter the Court has adverted to the legislative intention, and ruled that the registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control. There is reference to Section 146 of the Act that no person shall use or cause or allow any other person to use a motor vehicle in a public place without insurance as that is the mandatory statutory requirement under the 1988 Act. In the instant case, the predecessor-ininterest of the appellant, Centurion Bank, was the registered owner along with respondent no.2. The respondent no. 2 was in control and possession of the vehicle. He had taken the vehicle from the dealer without paying the full premium to the insurance company and thereby getting the vehicle ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 20 insured. The High Court has erroneously opined that the financier had the responsibility to get the vehicle insured, if the borrower failed to insure it. The said term in the hypothecation agreement does not convey that .
the appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the respondent no.2 to take the vehicle from the dealer without full payment of the insurance. Nothing has been brought on record that of this fact was known to the appellant financier or it was done in collusion with the financier. When the intention of the legislature is quite clear to the effect, a rt registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent no.2, without the insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the 1988 Act, the High Court could not have mulcted the liability on the financier. The appreciation by the learned Single Judge in appeal, both in fact and law, is wholly unsustainable."
27. In view of the above discussion, it is held that Gurdeep Singh, who was in actual possession of the offending vehicle, had the control of the offending vehicle, and thus, has to satisfy the entire liability. The Tribunal has ::: Downloaded on - 15/04/2017 21:22:48 :::HCHP 21 fallen into an error in saddling the registered owners with the liability. Since the driver of the offending vehicle, namely, Lakhwinder Singh is the sole representative of Gurdeep .
Singh, who has expired during the pendency of the appeals, therefore, said Lakhwinder Singh has to satisfy the award.
Questions No.(ii) and (iii) are answered accordingly.
28. Having said so, the appeal filed by the registered of owners, being FAO No.7 of 2013, is allowed and the appeal filed by Lakhwinder Singh i.e. FAO No.413 of 2011 is rt dismissed. The impugned award is modified, as indicated above. Lakhwinder Singh son of deceased Gurdeep Singh is directed to deposit the entire award amount, alongwith interest as awarded by the Tribunal, within a period of six weeks from today, in the Registry of this Court and on deposit, the Registry is directed to release the entire amount in favour of the claimants strictly in terms of the impugned award.
29. Both the appeals are disposed of accordingly.
October 7, 2016 ( Mansoor Ahmad Mir )
(Tilak) Chief Justice
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