Punjab-Haryana High Court
Amarjit Singh Alias Chhota Singh vs Mohinder Kaur And Others on 14 January, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.661 of 1994 (O&M)
Date of decision:14.01.2013
Amarjit Singh alias Chhota Singh ...Appellant
versus
Mohinder Kaur and others ....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. B.B.S. Sobti, Advocate,
for the appellant.
Ms. Harveen Kaur, Advocate,
for respondents 1 to 8.
Mr. Satinder Khanna, Advocate,
for respondent No.9.
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1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
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K.Kannan, J. (Oral)
1. The appeal is at the instance of the owner of the vehicle stating that after his purchase, there was no transfer of registration and the registered owner was still liable. The contention is that the award of the Tribunal making liable the subsequent purchaser, who was the owner of the vehicle at the time of the accident, without directing a joint liability or exclusive liability of the registered FAO No.661 of 1994 (O&M) -2- owner was not tenable in law. The learned counsel would place his reliance on the judgment of the Supreme Court in Pushpa @ Leela and others Versus Shakunta and others-2011(2) PLR 473 that if the policy was taken in the name of the registered owner-the person, whose name continued in the records, was equally liable for payment. The Court had held that if there was an insurance policy in respect of the truck taken in the name of the registered owner, he would be entitled to indemnity as well. Here was a case where the policy of insurance was in the name of the registered owner and the Supreme Court was making the registered owner liable in order to funnel the liability ultimately to the Insurance Company. To that extent, it provided for a right of indemnity as well.
2. The above judgment ought not to be understood as making impossible the liability to be cast on the owner of the vehicle by a transfer in accordance with law. The transfer of title to the motor vehicle takes place by delivery of the vehicle in the manner contemplated under Section 19 of the Sale of Goods Act. Change in registration of ownership is purely incidental and if at all, it could operate as evidence of such transfer of ownership. Registration of ownership particulars as contemplated under Section 51 of the Motor Vehicles Act shall be taken as limited to making available for public authorities its enforcement of what is essential from the State point of view, namely, the collection of road tax, issuance of permits FAO No.661 of 1994 (O&M) -3- etc. It ought not to finally conclude the issue of ownership. If the case were to be instituted without making the subsequent purchaser, who was not a registered owner, the Court could still pass an award against the registered owner, for, a third party claimant cannot be put to any hardship and it shall become possible for a registered owner to seek for indemnity against the subsequent purchaser. All this is not to empower a subsequent purchaser to plead that he could not have been made liable. There is no such proposition anywhere. On the other hand, the judgment of the Supreme Court in Vasantha Viswanathan Versus V.K. Elayalwar-(2001) 8 SCC 133 lays down that the transfer of motor vehicle takes place through delivery and the change in registration itself is inconsequential. I will not, therefore, find any use for the judgment of the Supreme Court in Pushpa's case (supra) for a proposition canvassed by the learned counsel. The liability cast on the subsequent owner, namely, the appellant, who was admittedly the owner of the vehicle at the time of the accident, was properly laid.
3. This argument has to be seen again on yet another line of defence propounded by the learned counsel that the petition was filed on an averment that one Hans Raj was the driver, who was also made a party. It turned out that one Devinder Singh alone was the driver and he was not even made a party. Since the driver had not been made a party, his owner, who is the appellant, could not have FAO No.661 of 1994 (O&M) -4- been made liable. This again, in my view, is not stating the law correctly. Except in special State enactments and rules which require the driver to be made as a party, there is no requirement for a driver to be made as a party. If it transpired in evidence that some other person was a driver, all that is possible by the application of theory of vicarious liability to make liable the owner of the particular vehicle, who had employed the driver that caused the accident. Consequently, in this case, the fact that the driver was not made a party cannot be fatal to the petitioner's claim so long as the owner had an opportunity to plead that his own driver had not been negligent in his driving. In this case, the driver-Devinder Singh was the son of the subsequent owner-the appellant himself and he could not have lost opportunity to bring in appropriate evidence, if there existed any occasion to prove that there was no negligence on his part. In this case, the Court has found the negligence of the appellant's driver to have been established and the liability cast thereon was again therefore perfectly justified.
4. The counsel has an additional string to the bow, as it were, that the claimant had admitted that there was no negligence on the part of any person. This compromise is denied by the claimant. The case resulting in death of a person on cycle in a collision with a four-wheeler cannot be but by the negligence of the driver of a four- wheeler. I would hardly ever place an issue of negligence on a FAO No.661 of 1994 (O&M) -5- cyclist in a case of collision with motor vehicle. An enactment that provides for compensation regime is especially so only because the motor vehicle by the very nature of things, is capable of causing harm, but a cyclist cannot cause harm such as serious injury or death to a pedestrian. An owner of a motor vehicle shall therefore apply greater circumspection on road than a cyclist or pedestrian is required to do.
5. Another argument by the counsel for the appellant is that the parties had already compromised the matter and the petition before the Tribunal was without sufficient cause of action. I do not find compelled to re-examine the issue of compromise in a situation where the Court has actually found the compromise as not established. Even if it were to be true, I will still hold the liability of the owner of the motorcycle that had caused death of a cyclist as established through evidence. I reject therefore also an argument that the compromise entered into with the owner must be given effect and that no award could be passed.
6. It is a case where the claim was at the instance of the widow, who had 7 minor children. The Court had awarded a measly compensation of ` 76,800/- in the year 1994 for an accident that had taken place on 11.10.1989. The case was instituted on 11.11.1989 and it was disposed of on 06.04.1994. If the petitioner had deposited the money immediately, he would have come to no harm. If he was FAO No.661 of 1994 (O&M) -6- however filing an appeal and pleading for a non-liability although the vehicle was only his, then he was making a defence only for the purpose of evading his liability. The order of stay, which was in favour of the petitioner, cannot come to his benefit now to relieve him of the liability which was verily on his shoulder. The award is sustained in full and the appeal is dismissed with costs assessed at ` 5,000/-.
(K.KANNAN) JUDGE 14.01.2013 sanjeev