Karnataka High Court
Lingappa vs Sri Mohanlal on 3 December, 2013
Author: B.S.Indrakala
Bench: B.S. Indrakala
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MRS. JUSTICE B.S. INDRAKALA
M.F.A.No.8366/2009 c/w M.F.A.No.9276/2009 (MV)
IN M.F.A.No.8366/2009
BETWEEN:
1. SRI.LINGAPPA
S/O SRI.JAVARAPPA
AGED ABOUT 54 YEARS
2. SRI.L.SUBRAMANYA
S/O SRI. LINGAPPA
AGED ABOUT 33 YEARS
3. SRI.L.MANJUNATHA
S/O SRI.LINGAPPA
AGED ABOUT 26 HEARS
ALL ARE AT #17/3-27, II CROSS,
ANJANEYA BLOCK,
SESHADRIPURAM
BANGALORE-560 002. ... APPELLANTS
(BY SRI.K.SURESH, ADV.)
AND:
1. SRI.MOHANLAL
S/O SRI.POOLCHAND,
MAJOR, #59/1, 11TH CROSS,
MALLESWARAM,
BANGALORE-560 003
2. SRI.C.P.VENKATARAMAN
S/O SRI.P.V.SURYANARAYANAN,
MAJOR, #635, V MAIN, II STAG,
INDIRANAGAR, BANGALORE-560 038
MFA Nos.8366 c/w 9276/2009
2
3. SRI.MUNISWAMY,
S/O SRI.NARAYANASWAMY
MAJOR, #26, K.PALYAM
INDIRANANGAR
BANGALORE - 560 038
4. SRI.V.SHIVASHANKAR
S/O LATE M. VARADARAJ
MAJOR, #29, 'B' STREET,
JEDARAHALLI, BENSON TOWN,
BANGALORE-46
5. SRI.VASANTH RAJ
S/O CHAMPALAL, MAJOR, #120,
M.M.ROAD, FRAZER TOWN,
BANGALORE - 05. ... RESPONDENTS
(BY SMT.SUGUNA R. REDDY, ADV. FOR R-1;
SRI.A.C.BALARAJ, ADV., FOR R-2;
SRI.B.L.KUMAR, ADV. FOR R-3;
NOTICE TO R-4 DISPENSED WITH;
SRI.H.V.NAVEEN KUMAR RAO, ADV. FOR R-5)
IN MFA.NO.9276/2009:
BETWEEN:
SRI.C.P.VENKATARAMAN
S/O P.V.SURYANARAYANAN,
AGED ABOUT 63 YEARS
RESIDENT BLOCK-E, FLAT NO. A1,
GOLDEN FORTUNE,
NOLAMBUR MAIN ROAD,
MOGAPPAIR EAST,
CHENNAI-600 107. ... APPELLANT
(BY SRI.A.C.BALARAJ, ADV.)
AND:
1. SRI.LINGAPPA
S/O JAVARAPPA
AGED ABOUT 54 YEARS
2. SRI.L.SUBRAMANYA
S/O LINGAPPA
MFA Nos.8366 c/w 9276/2009
3
AGED ABOUT 34 YEARS
3. SRI.L.MANJUNATHA
S/O LINGAPPA
AGED ABOUT 26 HEARS
R-1 TO R-3 ARE AT #17/3-27,
II CROSS, ANJANEYA BLOCK,
SESHADRIPURAM
BANGALORE-560 002.
4. SRI.MOHANLAL
S/O SRI.POOLCHAND,
MAJOR, R/O #59/1,
11TH CROSS, MALLESWARAM,
BANGALORE-560 003
5. SRI.MUNISWAMY,
S/O SRI.NARAYANASWAMY
MAJOR, R/O #26, K.PALYAM
INDIRANANGAR
BANGALORE - 560 038
6. SRI.V.SHIVASHANKAR
S/O LATE M. VARADARAJ
MAJOR, RESIDENT OF #29,
'B' STREET, JEDARAHALLI,
BENSON TOWN,
BANGALORE-46
7. SRI.VASANTH RAJ
S/O CHAMPALAL, MAJOR, R/O #120,
M.M.ROAD, FRAZER TOWN,
BANGALORE - 05. ... RESPONDENTS
(BY SRI.K.SURESH, ADV. FOR C/R-1 TO R-3;
SMT.SUGUNA R. REDDY, ADV. FOR R-4;
SRI.B.L.KUMAR FOR M/S. VEGA LAW
ASSOCIATES, ADVS. FOR R-5;
SRI.H.V.NAVEEN KUMAR RAO, ADV. FOR R-7
R-6 NOTICE HELD SUFFICIENT VIDE
ORDER DATED 25.2.2013.)
THESE MFAs ARE FILED U/S 173(1) OF MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED
21.8.2009 PASSED IN MVC NO.1568/2002 ON THE FILE OF I
ADDITIONAL SENIOR CIVIL JUDGE & MEMBER, MACT,
MFA Nos.8366 c/w 9276/2009
4
BANGALORE AWARDING A COMPENSATION RS.2,19,200/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT
The claimants and respondent No.1 in MVC.No.1568/02 on the file of I Additional Judge, Court of Small Causes and MACT, Bangalore have preferred the above two respective appeal against the judgment and award rendered in the said case which is dated 21.08.2009.
2. For the sake of convenience, the parties herein are referred to by their respective rank as arrayed before the Tribunal.
3. The brief facts leading to the filing of these two appeals are that:
The claimants claiming themselves as husband and children of one Puttatayamma filed the said claim petition alleging that the said Puttatayamma who was aged about 40 years and who was working as maid MFA Nos.8366 c/w 9276/2009 5 servant in M/s. MIMS Private Limited and also working as helper in Maruthi Auto Consultants, earning total income of Rs.4,000/- per month while crossing the road on 2nd Main Road of Vyalikaval opposite Canara Bank, the first respondent being the rider of motor cycle Suzuki Samurai bearing registration No.TN-27-F-5690 belonging to the second respondent by riding the said vehicle in a rash manner dashed against the said Puttatayamma and caused the accident on 8.12.2000 at about 7.30 a.m. Further it is contended that in the said accident, said Puttatayamma sustained suffered grievous injuries to which she succumbed on the way to the Hospital; the Sadashivanagar police registered a criminal case against the rider of the vehicle viz., first respondent which is pending disposal.
4. It is further contended that on account of the untimely accidental death of the victim, the claimants being the husband and children of the deceased are not only put to mental shock and agony but also to financial loss. In the circumstances, they sought compensation MFA Nos.8366 c/w 9276/2009 6 from the rider and owner of the vehicle involved in the accident viz., respondent Nos. 1 and 2.
5. Further it is to be noted that despite service of notice to respondent No.2, the alleged R.C.owner of the vehicle remained absent and as such he was placed exparte and respondent No.1 though entered appearance through his Counsel did not choose to file any statement of objections and failed to contest the case.
6. In the circumstances, as the matter stood thus, the claimant No.3 got examined as P.W.1 and got marked Exs.P.1 to 12 and no evidence was adduced on behalf of the respondents.
7. Appreciating the evidence so placed on record, the then the Member of the Tribunal deemed it fit to award a sum of Rs.2,67,600/- against respondent No.2 payable with interest at the rate of 6% p.a. from the date of petition till realisation vide its judgment and award dated 26.10.2004.
MFA Nos.8366 c/w 9276/2009 7
8. Being aggrieved by the said judgment and award, 2nd respondent preferred Misc. Petition No.151/2006 and the same was rejected by an order dated 08.11.2006 passed by the Tribunal.
9. Meanwhile on perusal of the order sheet maintained in the proceedings, it is seen that vide order dated 12.10.2004, I.A.IV filed by respondent No.1 under Order XVIII Rule 17 r/w Section 151 of the Code of Civil Procedure seeking recalling of the order dated 17.08.2004 was rejected and on perusal of the order sheet in MVC case, it is seen that after disposal of the claim petition on receipt of the orders dated 27.2.2007 passed in W.P.No.37/2007 filed by the 2nd respondent on the file of this Court, the case was re-opened.
10. On perusal of the copy of the said order passed in W.P.No.37/2007, it is seen that the petition was preferred against the order of dismissal dated 08.11.2006 passed in Misc.Case No.151/2005 which was filed by the alleged owner of the vehicle viz., MFA Nos.8366 c/w 9276/2009 8 respondent No.2 and while allowing the said writ petition, the said MVC No.1568/2002 was restored and further an opportunity was granted to the said 2nd respondent to contest the matter on merits.
11. On such restoration, at the instance of respondent No.2, respondent Nos. 3 to 5 were impleaded vide order dated 25.10.2007.
12. On such impleading of the parties and on respondents choosing to file their own statement of objections, the matter was taken up for disposal afresh.
13. Even on such remand, respondent No.1 rider of the vehicle did not choose to file any objections while respondent No.2 in whose name the registered certificate stood even as on the date of accident choose to file statement of objections pleading that he is not a necessary or proper party to the proceedings, the vehicle which once belonged to him was sold in favour of respondent Nos.3 to 5 respectively as could be made out from the police records in Crime No.406/2000 and MFA Nos.8366 c/w 9276/2009 9 further he pleaded his ignorance with regard to the cause of accident, age, income, avocation of the deceased; It is specifically pleaded that as on the date of accident he was not the owner of the vehicle bearing No. TN-27-F-5690 and further that he was the native of Salem and in the year 1995, he shifted his place of residence from Salem to Bangalore along with his family and during his stay at Salem, he purchased the motor cycle bearing registration No.TN-27-F-5690 and on shifting his place of residence i.e., on 16.10.1997, he sold the said vehicle in favour of Sri Muniswamy - respondent No.3, who was introduced to him through one Mr. Pal. Further it is pleaded that at the time of sale, the sale agreement was drawn and he handed over the original registration certificate, policy of insurance and also duly signed forms for the purpose of transfer of registration of vehicle to the purchaser; further he also obtained 'No Objection Certificate' from the RTO of Salem for the purpose of transfer of registration of vehicle from Salem to Bangalore and he also obtained MFA Nos.8366 c/w 9276/2009 10 delivery note from the said Muniswamy regarding delivery of possession of the above said TVS Suzuki motor cycle in his favour and he ceased to be owner of the vehicle with effect from 16.10.1997. Further it is pleaded by the 2nd respondent that a notice dated 16.01.2001 under Section 133 of the Motor Vehicles Act was served on him through the police constable calling upon him to produce the documents of the above vehicle and also to offer an explanation about the change of registration number of the vehicle without re- registration; to the said notice, he replied stating that the above vehicle was sold in favour of Muniswamy delivering all documents and as such he was not having any knowledge of change of registration number of the above vehicle. Further in pursuance of the summons in criminal case, he also gave evidence in that regard on 26.3.2003 and deposed with regard to he handing over the documents of the vehicle to the police. Further it is pleaded that he obtained certified copies of the statements made by the witnesses in the said case MFA Nos.8366 c/w 9276/2009 11 which revealed that the purchase of the vehicle belonging to the 2nd respondent by the above said Muniswamy by one V.Shivashankar - respondent No.4 and he had handed over all the documents of the vehicle while delivering possession to him viz., to Sri V. Shivashankar who in turn pledged the above vehicle for a sum of Rs.10,000/- with one Sri Vasanth Raj - respondent No.5 - the pawn broker and thereafter, the said Vasanth Raj handed over the vehicle to 1st respondent, who is none other than the uncle of said Vasanth Raj. Further it is pleaded that the 1st respondent used the vehicle by changing its registration number plate as KA-05-U-7369 and on such use, the alleged accident occurred and all those facts came to his knowledge only after obtaining the copies from the Hon'ble Court and thus even as per records, he was not at all the owner of the vehicle as on the date of accident and seeks dismissal of the claim petition.
14. Respondent No.3/Muniswamy inspite of service of notice remained absent and as such, he was MFA Nos.8366 c/w 9276/2009 12 placed exparte. Likewise respondent No.4 the latest purchaser of the vehicle viz., V. Shivashankar also remained absent and he was also placed exparte. Sri Vasanth Raj/respondent No.5, who is said to have lent money to respondent No.4 has chosen to contest the claim petition and also has filed his statement of objections to the claim petition.
15. In the statement of objections filed by respondent No.5, it is pleaded that the petition is bad for misjoinder of parties, he is falsely implicated in the case, he has no knowledge about the alleged accident, he is neither the insurer, nor an insured or even a necessary or proper party to the proceedings; nothing is stated in the petition with regard to his involvement in the alleged accident and there is no personal liability arising to pay any compensation and sought dismissal of the petition.
16. Thus out of 5 respondents on record including the rider of the motor bike, who is alleged to MFA Nos.8366 c/w 9276/2009 13 have caused the accident, who is arrayed as respondent No.1, only two of them viz., respondent No.2 in whose name the R.C. stood as on the date of the accident and respondent No.5, who is said to have lent money to the purchaser of the vehicle viz., respondent No.4 have chosen to contest the case on merits.
17. As the issues which were already framed, the Tribunal held the same as sufficient and no additional issues were framed on the basis of the pleadings filed by the parties. Further on behalf of the claimants, apart from the evidence of P.W.1, a witness is also examined as P.W.2 and they got marked EXs.P.1 to 12 and on behalf of respondent Nos. 2 and 5, the father of respondent No.2 is examined as R.W.1, respondent No.2 as R.W.2 and respondent No. 5 as R.W.3 and got marked Exs.R.1 to 10.
18. On the basis of the evidence so lead, on hearing the Counsel, the Tribunal deemed it fit to allow the claim petition awarding compensation of MFA Nos.8366 c/w 9276/2009 14 Rs.2,19,200/- with interest at the rate of 6% per annum from the date of petition till realisation against respondent No.2 in whose name the R.C. stood as on the date of accident.
19. Aggrieved by the said judgment and award, respondent No.2 against whom the award is passed preferred MFA No. 9276/2009 while the claimants preferred MFA No. 8366/2009.
20. In MFA No. 8366/2009, the claimants amongst other grounds have specifically contended that the amount awarded is too meager and seeks enhancement of the same.
21. Learned Counsel for the claimants/appellants in the said appeal submitted that though the income of the deceased is established by producing the salary certificate issued by the employer where the deceased was working as part time employee, the Tribunal failed to consider the contents of the said two documents and further submitted that the income of the deceased MFA Nos.8366 c/w 9276/2009 15 ought to have been assessed at Rs.4,000/- p.m. as claimed by the claimants and the observation made by the Tribunal by fixing the income at Rs.2,000/- p.m. is not proper. Further he contended that even otherwise the amount awarded under other heads is also on the lower side and seeks enhancement of the same.
22. The 2nd respondent against whom the award is passed in his appeal i.e., MFA No.9276/2009 contended amongst other contentions that the Tribunal grossly erred in not considering the contents of the documents filed and got marked by him disclosing that as on the date of the accident, he was not the owner of the vehicle alleged to have been involved in the accident. Further it is contended that the citations relied upon by him are also not considered. It is also contended relying upon the decision rendered in the case of HEMA RAMASWAMI -vs- K.M. VALARENCE PANJANI reported in 1981 ACJ 288 that under Section 96 of the Motor Vehicles Act wherein it is observed that in the accident which occurs subsequent to the transfer of ownership, MFA Nos.8366 c/w 9276/2009 16 but, before the vehicle is registered with the Transporting Authority in the name of the transferee the transferor and the insurance company are not liable to pay the compensation and the liability is only on the transferee which is not at all considered by the Tribunal; further it is contended that under the Motor Vehicles Act, the definition of the owner takes into its fold the person in whose name a motor vehicle stands as on the date of accident under hypothecation or under lease agreement and as such, it ought to have fastened the liability on respondent-1, etc., and sought setting aside of the judgment and award so passed against him.
23. Learned Counsel for appellant in MFA No.9276/2009 contended that Exs.R.2 to 4 are no doubt the statements recorded during the course of investigation in Criminal Case under Section 162 of the Code of Criminal Procedure and no evidentiary value can be attached to it, but, nevertheless a judicial note of the said contents will have to be taken into consideration to assess the exact facts of the case MFA Nos.8366 c/w 9276/2009 17 regarding transfer of vehicle; further he submitted that even in the charge sheet, such transfer of vehicle from respondent Nos. 2 to others is also mentioned besides in Exs.P.6 and 7 - depositions of the appellant before the Criminal Court with regard to the ownership of the vehicle, such transfer of vehicle from him to Shivashankar is disclosed. Further he contended that in his examination-in-chief, it is the said Shivashankar/R-4, who has clearly deposed that in the year 1988 he purchased the motor vehicle bearing registration No. TN 27 F 2690 for a sum of Rs.28,000/- and he handed over the required forms duly filled and signed by him with 'NOC' and also insurance with 'NOC' so given by one Mr. Venkatramaiah to Muniswamy, who in turn handed over the same to him; due to the urgency, he handed over the possession of the same to one Mr. Vasanth Raj/respondent No.5 and obtained a sum of Rs.10,000/-; he also pledged the vehicle documents on which no receipts were created for it and after 3 months, he returned from Madras and claimed MFA Nos.8366 c/w 9276/2009 18 the vehicle from Mr. Vasanth Raj who informed that the vehicle was seized by the police in connection with the accident and the police recorded his statement in that behalf and thus the said unequivocal evidence of respondent No.4 is lost sight of and has been ignored by the Tribunal and in the circumstances, such evidence of respondent No.4, who was also subjected to cross- examination, will have to be considered to assess the true facts that prevail in the case.
24. Per contra learned Counsel appearing for the rider of the vehicle, who according to the charge sheet is alleged to have caused the accident submitted that as respondent No.1 is acquitted in the criminal case, it cannot be said that basically he was the cause for the accident; further she submitted that as long as the vehicle stands in the name of respondent No.2, he is deemed to be the owner of the vehicle and as such, liability is upon him to honour the award passed in the case and by no stretch of imagination, respondent No.1 can be held liable to pay the compensation; further she MFA Nos.8366 c/w 9276/2009 19 submitted that the claimants have not discharged their burden of establishing as to how the vehicle was transferred to Shivashankar and as to how the vehicle was pledged with respondent No.5 and how respondent No.5 handed over the vehicle to respondent No.1. In the absence of such discharge of burden by the claimants, no liability whatsoever can be fastened on respondent No.1.
25. Thus she submitted that even if the vehicle is presumed to be transferred to Shivashankar/ respondent No.4, there is no evidence on record to show that respondent No.4 in turn handed over the vehicle to respondent No.5, who in turn handed over the same to respondent No.1; further she submitted that even the R.C. owner will have to be held liable to honour the award that is to be passed in the case; she specifically contended that there is no evidence on record to show that respondent No.4 pledged the vehicle with respondent No.5 and she also submitted that the statement given under Section 162 of the Code of MFA Nos.8366 c/w 9276/2009 20 Criminal Procedure cannot be looked into for any purpose much less taking judicial note of the same; she also submitted that the certified copies of the deposition of the appellant as well as respondent No.4 is of no consequence when they are very much alive and they are not subjected to cross-examination by respondent No.1 or the claimants and as such, in the absence of all the evidence, judgment and award passed by the Tribunal making respondent No.2 liable to pay compensation are just and proper and the same does not call for interference.
26. With regard to he submissions made by the learned Counsel for the appellant, she submitted that both respondent Nos. 1 and 5 are not liable to pay compensation so awarded by the Tribunal; it is further seen that the amount awarded on the basis of the evidence available fixing the compensation at Rs.2,19,200/- is just and proper and the same does not require to be enhanced to any extent.
MFA Nos.8366 c/w 9276/2009 21
27. Thus in view of the submissions made, the points that arise for consideration are:
i) Whether the impugned judgment and award dated 21.8.2009 passed in MVC No. 1568/2002 making liable respondent No.2/appellant in MFA No. 9276/2009 is liable to pay the compensation requires to be modified and if yes,
ii) whether the amount awarded by the Tribunal also requires to be modified?
28. Before going to the merits or otherwise of the submissions made by the respective Counsel, it is seen basically that respondent-1 the rider of the vehicle has neither chosen to file statement of objections nor stepped into the witness box nor has he cross-examined any witness before the Tribunal. In that context, it is to be seen that whatever is submitted by his Counsel, will have to be considered in the absence of the pleadings and proof by him.
29. Further it is also seen that no evidence whatsoever is forthcoming either in the records of the Criminal Court or before the Tribunal with regard to change of registration number from State of Tamilnadu MFA Nos.8366 c/w 9276/2009 22 to State of Karnataka and also use of fake number displaying the registration number of the Karnataka State. Thus it is seen, admittedly the vehicle that met with the accident had the registration number belonging to Karnataka State registration number i.e., KA 05 U 7369 and in that regard, respondent No.1 is also charge sheeted for the offence under Section 201 of the IPC.
30. Learned Counsel for the claimant's submits that respondent No.1 is the person who took delivery of possession of the vehicle from the police custody. Further he submits that Ex.P.1 notice issued by the police discloses that respondent No.1 is described as the owner-cum-rider of the vehicle and it is also stated in the said notice that respondent No.1 changed registration number board from TN 27 F 5690 to KA 05 U 7369.
31. With regard to the quantum of compensation, it is seen that the claimants got marked two salary certificates disclosing that the deceased was getting MFA Nos.8366 c/w 9276/2009 23 Rs.2,000/- per month from each of the companies where she was working part time as maid servant. Considering the age of the victim as assessed by the Tribunal at 45 years, it is probable that she might have been working as a maid servant as per Ex.P.6 and P.9. However as rightly contended to by the counsel for respondent Nos. 1 and 2 in the claim petition, in the absence of proof of exact salary which was being drawn, it is reasonable to assess the income of the deceased at Rs.3,000/- per month. However, she being a working woman her contribution to run the family should also be given credence to and thus it is reasonable to assess her total income notionally at Rs.4,000/- per month. The deceased might have spent some amount towards her personal expenses. In the circumstances, 1/3rd of the income has to be deducted towards her personal expenses
32. The Tribunal by considering the age of her first son, assessed the age of the victim at 45 years and the same does not call for interference. Thus, MFA Nos.8366 c/w 9276/2009 24 considering the income of the deceased at Rs.2,667/- (Rs.4,000 - Rs.1,333=Rs.2,667/-) per month, and by applying the multiplier of 15 the claimants are entitled to be compensated under the head loss of dependency at Rs.4,80,060/- (2667 x 12 x 15).
33. Apart from the said amount, the claimants are also entitled to be compensated towards loss of consortium to the first claimant, loss of love and affection to claimants 2 and 3, loss of estate, expenses incurred towards funeral and obsequies etc. Hence it is reasonable to award Rs.40,000/- towards the same. Thus, the claimants are entitled to be compensated in all at Rs.5,20,060/-.
34. With regard to the liability of the respondents which is seriously disputed by each one of the respondents contending that as on the date of the accident, the registered owner was respondent No.2 and he was liable to satisfy the said amount while respondent No.2 contended that as he has sold the MFA Nos.8366 c/w 9276/2009 25 vehicle on 16.10.1997 itself, the subsequent purchaser is liable. In this regard, it is seen that no doubt respondent No.2 was the registered owner of the vehicle as on the date of the accident, but, respondent No.2 who is examined as RW.3 has deposed that he sold the said vehicle bearing registration No. TN-27-F-5690 on 16.10.1997 in favour of one Muniswamy (respondent No.3 before the Tribunal) who was introduced to him through one Pal. At the time of sale of the said motor cycle, a sale agreement was drawn, he handed over the all the document i.e., the original Registration Certificate, Policy of Insurance and the signed forms for the purpose of transfer of registration of the vehicle to the purchaser. Further, he deposed that he also obtained No Objection Certificate from the RTO, Salem for the purpose of transfer of registration of the vehicle from the RTO Salem to Bangalore and he also obtained delivery note from the said Muniswamy regarding delivery of possession of the said motor cycle in his MFA Nos.8366 c/w 9276/2009 26 favour. Thus he ceased to be owner of the said vehicle with effect from 16.10.1997.
35. With regard to non-production of original of delivery note before the Tribunal, he deposed that in the month of January 2001, he received a notice under Section 133 of the Motor Vehicles Act through Police Constable calling upon him to produce the documents of the above said vehicle and also asking for an explanation about the change of number of vehicle without re-registration; to the said notice he replied stating that the above said vehicle belonging to him was sold in favour of Muniswamy and he delivered all the original documents to the said purchase, he does not possess any knowledge about change of registration number of the above vehicle and also does not know about the said vehicle involving in the aforesaid accident. Further he has deposed that in the month of March 2003, he was served with summons by Police constable and he was called upon to attend the Metropolitan Magistrate Traffic Court-III at Bangalore in MFA Nos.8366 c/w 9276/2009 27 C.C.No.1102/02 for adducing evidence. Accordingly, he approached the Court on 26.3.2003 and gave his evidence regarding sale of vehicle and about he handing over the documents to the purchaser.
36. The certified copy of the reply so given by respondent No.2 is marked as Ex.R.10 which is an incomplete document and only first page of the reply is got marked. The father of respondent NO.2 who is examined as RW.1 on behalf of respondent No.2 who had gone abroad at that point of time, has specifically deposed that he does not posses the papers belonging to the said motor cycle and the same were handed over to the purchaser. However during the course of cross- examination of R.W.3 herein before the Criminal Court in C.C.No.1102/2002 certified copy of which is marked as Ex.R.6, it is seen that during the course of his cross examination, he has specifically deposed that he possessed the documents relating to alienation of motor cycle to Muniswamy and he had enclosed the acknowledgement given by Muniswamy with his reply.
MFA Nos.8366 c/w 9276/2009 28 Thus it is the case of respondent No.2 that he handed over the relevant documents to one Muniswamy - respondent No.3 and he sent delivery note along with his reply sent by him to the police notice issued under Section 133 of the Motor Vehicles Act and wanted to mark the Xerox copy of the delivery note, but, on an objection, the same was not marked. On perusal of the said Xerox copy, it is seen that the same is issued by the third respondent herein viz., Muniswamy.
37. As against the said evidence of respondent No.2 in whose name, RC of the vehicle involved in the accident as on the date of the accident stood, Muniswamy, who was said to be the purchaser, has remained absent and placed exparte and thus an adverse inference will have to be drawn against the said Muniswamy. Further it is seen that subsequently Muniswamy had sold the vehicle to one Shivashankar who is also placed exparte. As such an adverse inference has to be drawn even against said Shivashankar also.
MFA Nos.8366 c/w 9276/2009 29
38. Said Shivashankar pledged the vehicle with one Vasanthraj-Respondent No.5 who has chosen to depose before the Tribunal and he is examined as RW.2. He has deposed denying the case of respondent no.2 on all aspects in as much as he has stated that he is falsely implicated in the case; he has no knowledge about the alleged accident; he is not necessary party to the proceedings, but, strongly he has not deposed anything with regard to the he lending the vehicle to his Uncle Mohanlal-respondent No.1 after taking delivery of possession of the said vehicle from Shivashankar. However during the course of his cross examination he has admitted that he has given statement before the Investigation Officer in the C.C.No.1102/2002, but, has denied the contents of such statement marked as Ex.R.2.
39. Thus it is seen that though the first respondent-rider of the vehicle who is said to have caused the accident is on record and also entered appearance through counsel, he neither chose to file MFA Nos.8366 c/w 9276/2009 30 statement of objections or adduce any evidence and nor cross-examined the witnesses examined for and on behalf of respondent No.2 and also claimants, for which an adverse inference has to be drawn against respondent No.1 also. Thus it is seen that at the time of accident, the vehicle was being ridden by respondent No.1 and first respondent was in possession of the said vehicle.
40. Further as said Shivashankar arrayed as respondent No.4 remained absent and placed exparte, whatever is stated against him that he pledged the vehicle with respondent No.5 as stated before the Investigating Officer will have to be taken judicial note of in which event as per Section 2(30) of the Motor Vehicles Act, as the owner includes in relation to motor vehicle subject to agreement of lease of hypothecation, the person in possession of the vehicle under such an agreement of lease or hypothecation, the 1st respondent who was in possession of the vehicle and respondent No.5 the person who lent Rs.10,000/- on hypothecation MFA Nos.8366 c/w 9276/2009 31 of the vehicle, are liable to pay the compensation. No doubt R.W.5 has stated denying such allegations against him, but, in the absence of evidence of respondent No.4 as it is seen that respondent No.1 was in possession of the vehicle in pursuance of the agreement of lease or agreement of hypothecation entered into by respondent No.4 with respondent No.5.
41. Learned Counsel for respondent No.1 relied upon the decision rendered by the Full Bench of this Court in the case of PARAGOUNDA -vs- BHIMAPPA reported in ILR 1992 Kar. 3709 wherein it is held as hereunder:
"12. Section 31 of the Act provides the procedure as to how the transfer of ownership of a motor vehicle is to be reported by the transferor and the transferee. The obligation is cast both upon the transferor and the transferee to report the transfer to the Registering Authority. It is incumbent upon the transferor to report the fact of transfer to the Registering Authority within whose jurisdiction the transfer is to be effected, within fourteen days of the transfer, and he shall simultaneously send a copy of the said report to the transferee. The transferee has also similar obligation and to forward the Certificate of Registration to that Registering Authority together with the prescribed fee and copy of the report received by him from the MFA Nos.8366 c/w 9276/2009 32 transferor in order that the particulars of transfer of ownership may be entered in the Certificate of Registration. These provisions have nothing to do with the ownership of the vehicle as it is well settled that the transfer of ownership of a vehicle, being a moveable property, is governed by the Sale of Goods Act. The said provisions only provide for the regulation of the use of motor vehicles in public places and to impose penalty if the requirements of the Act are not fulfilled. Failure to notify the transfer visits the transferor or/and the transferee with certain penal consequences; that does not, however, make the transfer invalid. The endorsement of transfer in the record of Registering Authority is also not a condition precedent to the transfer to take effect, nor does it deal with the legality or otherwise of the transfer which must be determined under the general law and also the Sate of Goods Act. The requirement under Section 31 of the Act is that the change of ownership should be recorded also in the Certificate of Registration requiring the name of the transferee to be substituted in the Certificate of Registration in the place of, the registered owner. The object of Section 31 appears to be that the Registering Authority must have the name of the proper person who is liable to pay taxes, and perhaps, in the case of an accident, to trace the proper person upon whom liability can be fixed for damages or compensation resulting from the accident. In that view of the matter, it seems to us that the meaning given to the expression "owner" in the context of his liability to third parties in the event of the involvement of the vehicle in an accident giving rise to a claim for compensation or damages is too broadly stated by the Division MFA Nos.8366 c/w 9276/2009 33 Bench in Ramaiah Setty v. Meena and Anr.. The proper view appears to be that unless it is proved that the "registered owner" has ceased to be the owner of the vehicle, he continues to be liable in the event of an accident for the claims of the third parties. In other words, the onus to establish cessation of his title in the vehicle by virtue of a bona fide transfer thereof lies upon the registered owner and, unless and until that burden is discharged, he would continue to be liable to meet the liability arising out of an accident involving the vehicle. In that view of the matter, the view taken by the Division Bench in the case of Ramaiah Setty v. Meena and Anr. to the extent indicated above is not correct and it is over-ruled. Consequently, the Answer to the second Question is in the negative."
Thus according to the decision, it is seen that unless it is proved that 'registered owner' is ceased to be the owner of the vehicle, he continues to be liable in the event of an accident for the claims of the third parties but in the case on hand, there is no material to show that respondent No.2 seems to be the owner of the vehicle as on the date of the accident irrespective of whether there is change in the registration certificate or not, about the said transfer. Thus the said decision is of no avail to respondent No.1.
MFA Nos.8366 c/w 9276/2009 34
42. She also relied upon the decision rendered by the Apex Court in the case of PUSHPA -vs- SHAKUNTALA reported in 2011 AIR SCW 562 wherein it is heald that:
"Motor Vehicles Act (59 of 1988), Ss. 168, 50, 2(30) - Accident claim - Liability of owner - Transfer of ownership of vehicle prior to accident - Transferor nor transferee took no steps for change of name of owner in certificate of registration - In view of said omission, transferor must be deemed to continue as owner of vehicle for purposes of Act even though under civil law he would cease to be owner after sale of vehicle - He and even his insurer is liable to pay compensation,"
but, the facts of the said case are different from the facts of the present case in as much as even after the transfer of the vehicle in favour of the purchaser, the insurance policy was not renewed in the said case and it was in the name of the original owner himself. In the circumstances, the facts of that case are totally different from the facts in the instant case and hence, the said decision is also of no avail to respondent No.1.
43. Learned Counsel for respondent No.2 relied upon the judgment of the Apex Court in the case of MFA Nos.8366 c/w 9276/2009 35 Godavari Finance Co. -vs- Degala Satyanarayanamma reported in (2008) 5 SCC 107 wherein it is held that:
"B. Motor Vehicles Act, 1939 -S.165 - Jurisdiction of Tribunal - Award of compensation - Liability - Fixation of - On whom - Held, use of the motor vehicle is a sine qua non for entertaining claim for compensation - Ordinarily if driver of the vehicle would use the same, he remains in possession or control thereof - Owner of the vehicle, although may not have anything to do with the use of vehicle at the time of the accident, actually he may held to be constructively liable as the employer of the driver - What is essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable - Insurance Company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorily insurable so far as a third party is concerned, as contemplated under S.147 thereof - There cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role."
Thus the possession or control of the vehicle is of much importance to consider as to who is liable to pay the compensation to which the claimants are entitled.
MFA Nos.8366 c/w 9276/2009 36
44. Thus it is seen that as per the evidence on record though the registration certificate of the vehicle involved in the accident is not changed to the name of transferee right from the year 1997 till the date of accident viz., 08.12.2000, though the vehicle changed many hands and ultimately the vehicle came to be in possession of respondent No.1 who alone can explain as to how he was in possession of the vehicle as on the date of accident failed to contest the case. Thus by drawing adverse inference against him and for the reasons discussed supra, both respondent No.1 and respondent No.5 are liable to pay compensation to which the claimants are entitled. Hence the following:
ORDER Both the appeals are allowed by awarding a sum of Rs.5,20,060/- with interest at the rate of 6% per annum from the date of petition till realisation in favour of the claimants/appellants in MFA No. 8366/2009 against respondent Nos.1 and 5 whose liability shall be MFA Nos.8366 c/w 9276/2009 37 joint and several. The claim petition as against respondent Nos. 2 to 4 is dismissed consequently.
MFA No.9276/2009 - the appeal filed by respondent No.2 is also allowed and the judgment and award passed against him are set aside exonerating him from the liability to satisfy the amount awarded.
Respondent Nos. 1 and 5 are directed to deposit the amount so awarded within 12 weeks from the date of of this order and on such deposit, 60% of the amount with proportionate interest shall be apportioned in favour of claimant No.1 - husband of the deceased and the remaining 40% with proportionate interest shall be apportioned in favour of claimant Nos. 2 and 3 in equal proportion and upon such apportionment, 50% of the amount so apportioned with proportionate interest shall be invested in fixed deposit in their respective name for a period of 5 years in any of the Nationalised Bank of the choice of the claimants with liberty to them to MFA Nos.8366 c/w 9276/2009 38 withdraw the periodical interest as and when the same accrues.
The amount in deposit made by respondent No.2 in MFA No. 9276/2009 shall be refunded to him.
Office to draw the award accordingly.
Sd/-
JUDGE rs/Nsu/-