Punjab-Haryana High Court
Sugar Singh Son Of Shri Shyam Lal vs Mehar Singh Son Of Shri Kishan Lal on 27 May, 2014
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.6517 of 2012 (O&M)
Date of decision:27.05.2014
Sugar Singh son of Shri Shyam Lal, resident of Village Gindoh,
VPO Nandgaon, Tehsil Chhata, District Mathura (UP).
... Appellant.
versus
Mehar Singh son of Shri Kishan Lal, resident of Village Gaudhota,
Tehsil Hodal, District Faridabad (now Palwal), and others.
.... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. B.S. Tewatia, Advocate,
for the appellant.
Mr.Surinder Dagar, Advocate,
for respondents 1 and 2.
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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 cost as ordered has been paid.
2. The appellant before this court is the person who was registered owner of the vehicle that was admittedly involved in the accident. The accident had taken place on 08.03.2006. His contention in defence was that at the relevant time of the accident, the vehicle had been transferred to Kishan Lal and transfer was effected by delivery and an affidavit had also been given by him. A Kumar Sanjeev 2014.05.30 10:02 I attest to the accuracy and integrity of this document FAO No.6517 of 2012 (O&M) -2- person said to be Devi Singh son of Girdhar was examined as RW2 who vouched for the fact that the vehicle was transferred and the property delivered to Kishan Lal. The petition was filed by the claimant only against the registered owner and Kishan Lal was added as a party subsequently as respondent No.2-A. He was served with a notice through court but he had chosen to remain ex parte. His own driver-1st respondent also remained ex parte. The Tribunal held that the registered owner would be liable and passed the award against the second respondent.
3. The decision is erroneous and it is bound to be set aside. Instances where the Tribunal would be competent to pass an award against a registered owner would be cases when there is no other person other than the registered owner who is made answerable to the claim. If the registered owner makes out a defence that he had transferred the vehicle to yet another person and the transferee is also made as a party, then the Tribunal is bound to enter a finding on whether there had been a transfer of vehicle or not. Registration of vehicle will not at all times conclude the issue of ownership. Section 50 of the Motor Vehicles Act which details a procedure for transfer of ownership is a facilitative provision intended to make available in official records the person who would be prima facie responsible for payment of road tax and to make possible enforcements against a registered owner. If there is ever an issue Kumar Sanjeev 2014.05.30 10:02 I attest to the accuracy and integrity of this document FAO No.6517 of 2012 (O&M) -3- that is brought for an adjudication of who the owner was, the court cannot simply wear blinkers and refuse to adjudicate with reference to the evidence tendered before it. This assumes significance because a motor vehicle is "goods" within the definition in the Sale of Goods Act and as per Section 19 of the said Act, the ownership in the goods is transferred by delivery. In Vasantha Viswanathan Versus V.K. Elayalwar-(2001) 8 SCC 133, the Supreme Court clarified that the ownership of a vehicle will be transferred by delivery and the registration is not all times sine qua non. In this case, if the registered owner gave evidence of transfer and brought evidence through affidavit signed by the purchaser and had also gave evidence through an independent witness who testified to the transfer, the Tribunal ought to have drawn an adverse inference on the part of the person said to be the subsequent purchaser in avoiding the witness-stand.
4. The learned counsel appearing on behalf of Kishan Lal has an argument to make that at the time of evidence, the appellant had denied that he had transferred the vehicle. I have not been shown through such an admission, but if it exists, the case cannot be decided on a chance of admission or what he failed to deny. The substantive evidence was that he had transferred the vehicle and brought through documentary and oral evidence. The subsequent purchaser did not take courage to come to court. The liability cast Kumar Sanjeev 2014.05.30 10:02 I attest to the accuracy and integrity of this document FAO No.6517 of 2012 (O&M) -4- was clearly wrong.
5. The counsel for the respondents relies on the judgment of the Supreme Court in Pushpa @ Leela and others Versus Shakuntala and others-2011(2) SCC 240 as purporting to support his defence. The court was deciding a case where the transferee took the policy of insurance in the name of the transferor. Even after such sale, steps had not been taken by the transferor or by the transferee to change the name of the owner. The certificate of registration still stood in the name of the transferor. The court found that the registered owner continued to be the owner of the vehicle even though under civil law he ceased to be the owner after sale. In that case, the fact that there was an insurance policy taken in the name of the registered owner was found to be sufficient to make the insurer liable. It was not a case where the court was holding the transferor liable. The Insurance Company was made liable by the fact that the transferee had taken the insurance in the name of the transferor and there existed a subsisting liability for the insurer. In yet another judgment of the Supreme Court in Dr. T.V.Jose Versus Chacko P.M. @ Thankachan-2001(8) SCC 748, cited by the counsel for the respondents, the court was again considering the issue of liability of an Insurance Company qua gratuitous passengers. In that case, the transferee was not even a party and the court held that the liability shall be on the registered owner. Where the transferee was not a Kumar Sanjeev 2014.05.30 10:02 I attest to the accuracy and integrity of this document FAO No.6517 of 2012 (O&M) -5- party, liability to be fastened on the registered owner is well laid in law. In this case, the transferee is a party and impleaded as such, and hence, the above decision also does not help. The counsel also refers to a decision rendered by this court in Mrs. Sardar Varinder Singh alais Charanjit Kaur Versus Smt. Parkash Wati and others in FAO No.630 of 1988, dated 04.10.2012. This was again a situation where a transferee was not a party and the registered owner was proceeded with. I have held that the registered owner would continue to be liable and also provided for a remedy to the registered owner to proceed independently in action against the transferee. The liability cast on the registered owner is always to ensure that the claimant is not defeated by the only fact that the actual owner was not before it. In cases where the actual owner is a party impleaded and had not availed the right to enter defence, he ought to take the consequences of his own lapse.
6. The award against the appellant is set aside and there shall be an award against the 2nd respondent in this appeal and who was respondent No.2-A before the Tribunal. The right of enforcement of the award shall be available for the claimants only against the 2nd respondent herein.
7. The appeal is allowed on the above terms.
(K.KANNAN) JUDGE 27.05.2014 sanjeev Kumar Sanjeev 2014.05.30 10:02 I attest to the accuracy and integrity of this document