Telangana High Court
Smt. P. Bhagya Lakshmi vs R. Kavitha And 4 Others on 12 January, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
M.A.C.M.A. No. 1263 OF 2011
ORDER:
(per Hon'ble Sri Justice P.SAM KOSHY) Heard Mr. C.Srinivasa Baba, learned counsel for the appellant, Mr. M.V.S.Prasad, learned counsel for respondent Nos. 1 to 4 and Mr.Ch.Venkat Raman, learned counsel for respondent No. 5. Perused the entire record.
2. The challenge in the present appeal is to the order dated 04.05.2011 in M.V.O.P.No. 178 of 2008 on the file of Chairman, Motor Accidents Claims Tribunal-cum-I Additional Chief Judge, City Civil Court, Secunderabad (for short 'the Tribunal'),
3. Vide the impugned order, the Tribunal had quantified the compensation under Section 166 of the Motor Vehicles Act, 1988 (for short, the Act) of an amount of Rs.30,00,000/- with interest @ 7.5% per annum. The liability to pay the said compensation was fastened jointly and severally upon respondent Nos. 1 and 2.
4. Respondent No.1 (appellant herein) before the Tribunal was registered owner of Maruti Zen Car bearing 2 No. AP 10 L 5666 and respondent No. 2 is said to be the person to whom respondent No.1 meanwhile sold the said vehicle. The instant appeal under Section 173 of the Act is filed by the registration owner assailing the impugned order so far as fastening the liability jointly and severally.
5. The claim filed by the claimants under Section 166 of the Act was on the death of the deceased namely Mr.R.Mohan Rao (hereinafter referred as 'the deceased') who died in an accident that had occurred on 23.04.2008. The accident occurred when the said vehicle was driven by respondent No.2 in a rash and negligent manner and ran into a group of people at the bus stop including the deceased. In the said accident, the deceased died and other persons received grievous injuries. It is stated that the deceased was aged about 55 years and was working as Professor in Acharya N.G. Ranga Agricultural University, Rajendranagar, Hyderabad. The claimants are wife and children of the deceased.
6. It seems that at the time of accident, the said vehicle was not insured. There is no dispute so far as the accident that has occurred and the death of the deceased from the said accident and the other injuries that were caused to 3 other persons. It is also not in dispute so far as involvement of the said vehicle in the said accident. An FIR was lodged at Bowenpally Police Station under Sections 304-A, 337, 279 of IPC and under Section 181 of M.V.Act and charge sheet was also filed in this regard.
7. PW. 2, injured eye-witness, was examined before the Tribunal, who has categorically stated that the said vehicle at the time of the accident was being driven by respondent No. 2. There does not seem to be any strong rebuttal to these admitted factual matrix of the case.
8. The Tribunal taking into consideration the factual aspects and also taking into consideration the method of calculation of compensation as it then has awarded compensation of Rs.30,00,000/- with interest @ 7.5% per annum to be payable to the claimants. It is this Award which is under challenge in this appeal by the registered owner.
9. There are two primary contentions raised by the learned counsel for the appellant in support of his contentions. The first is that respondent No. 1 had already sold the said vehicle to respondent No. 2 as early as on 4 05.02.2008 and also handed over the possession of the said vehicle to respondent No. 2 who was since then the owner. Therefore, since the accident had occurred while respondent No. 2 was driving the vehicle, the entire liability ought to have fastened on respondent No. 2 rather than jointly and severally. The second is that to prove that the appellant sold the car to respondent No.2, the appellant produced before the Tribunal two documents i.e., Exs.B.1 and B.2. Ex.B.1 was the delivery note and Ex.B.2 was receipt of advance amount of Rs.35,000/- allegedly paid by respondent No. 2 as against total consideration of Rs.1,50,000/- towards purchase of car.
10. A perusal of the record would show that respondent No. 2, who had entered appearance, has denied the entire allegations including the accident had occurred while he was driving the car and that the vehicle had been sold to him. The appellant herein who was respondent No. 1 before the Tribunal got herself examined as RW. 1 and her husband was examined as RW. 2. Both the witnesses have tried to state that they had already sold the said vehicle to respondent No. 2. However, both of them have admitted the aspect that the so called sale of the said vehicle was not 5 duly intimated to any of the transport authorities neither have they taken steps ensuring the transfer of the ownership from the name of respondent No. 1 to respondent No. 2. Both these witnesses have also accepted the fact that the alleged sale of the said vehicle was done by the nephew of the appellant herein. The entire payment, advance amount as also balance of payment was received by the nephew and thereafter paid to the appellant herein.
11. These statements made by two witnesses are highly improbable for the simple reason that it is the registered owner, the appellant herein, who ought to have made any transaction in her name in respect of sale of the car. Even if cheque payments were to be made for the balance of amount other than the advance amount, that also ought to had been done in the name of the appellant herein. In the absence of which the contention raised by the appellant is difficult to be accepted.
12. The law by now is well settled by a catena of decisions laid down by the Hon'ble Supreme Court, wherein it has been emphatically held that the liability of payment of compensation would always be fastened upon 6 the registered owner of the vehicle and it cannot be passed on to any other person even if there has been a sale without transfer of ownership being made before the concerned transport authorities.
13. One of the recent decisions in this regard is the case of Surendra Kumar Bhilawe vs. New India Assurance Company Limited 1, wherein the Hon'ble Supreme Court in paragraph Nos. 40, 41, 43, 45, 46 and 53 has held as under:
"40. It is difficult to accept that a person who has transferred the ownership of a goods carriage vehicle on receipt of consideration, would not report the transfer or apply for transfer of registration, and thereby continue to incur the risks and liabilities of ownership of the vehicle under the provisions of law including in particular, under the Motor Vehicles Act, 1988 and other criminal/penal laws. It does not also stand to reason why a person who has transferred the ownership of the vehicle should, for over three years, benevolently go on repaying the loan for purchase of the vehicle, take out insurance policies to cover the vehicle or otherwise discharge obligations of ownership.
41. It is equally incredible that an owner of a vehicle who has paid consideration to acquire the vehicle would not insist on transfer of the permit and thereby expose himself to the penal consequence of operating a goods vehicle without a valid permit.
43. The explanation to Section 157 clarifies, for the removal of all doubts, that such deemed transfer would include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. The 1 (2020) 18 SCC 224 7 transferee might, within 14 days from the date of transfer, apply to the Insurer in the prescribed form, for making requisite changes in the certificate of insurance and the policy of insurance with regard to the factum of transfer of insurance. There could be no reason for a transferee of an insured motor vehicle, to refrain from applying for endorsement of the transfer in the Insurance Policy Certificate when insurance covering third party risk is mandatory for using a vehicle.
45. The judgment of this Court in Complete Insulations Private Limited vs. New Indian Assurance Company Limited 2 was rendered in the context of Motor Vehicle Act, 1939 which has been repealed and replaced by the Motor Vehicles Act, 1988. As observed in the said judgment itself, under Section 103-A of the old Act, the Insurer had the right to refuse to transfer the certificate of insurance and/or the Insurance policy. However, Section 157 of the Motor Vehicles Act, 1988 introduces a deeming provision whereby the transfer of the 1 (1996) 1 SCC 221 certificate of Insurance and the policy of Insurance are deemed to have been made, where the vehicle along with the Insurance policy is transferred by the owner to another person. This provision has taken away the Insurer's right of refusal to transfer the Policy Certificate of Insurance. which was there under the old Act. The judgment of this Court in Dr. T.V. Jose vs. Chacko P.M.3 was also rendered in the context of the Motor Vehicles Act of 1939.
46. In Pushpa @ Leela And Others vs. Shakuntala and Others 4, the question before this Court was, whether liability to pay compensation to third parties as determined by the Motor Vehicles Accidents Claims Tribunal in case of an accident, was that of the purchaser of the vehicle alone, or whether the liability of the recorded owner of the vehicle was coextensive, and from the recorded owner it would pass on to the Insurer of the vehicle. This Court found that the person whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of 2 (1996) 1 SCC 221 3 (2001) 8 SCC 748 : 2002 SCC (Cri) 94 4 (2011) 2 SCC 240 : (2011) 1 scc (Civ) 399 : (2011) 1 SCC (Cri) 682 8 the compensation, having regard to the provisions of Section 2(30) read with Section 50 of the Motor Vehicles Act, 1988 and since an insurance policy had been taken out in the name of the recorded owner, he was indemnified and the Insurer would be liable to satisfy the third party claims.
53. In view of the definition of 'owner' in Section 2(30) of the Motor Vehicles Act, the Appellant remained the owner of the said truck on the date of the accident and the Insurer could not have avoided its liability for the losses suffered by the owner on the ground of transfer of ownership to Mohammad Iliyas Ansari."
14. For the aforesaid reasons, we do not find any strong case is made out by the appellant calling for interference to the impugned order. We are also not inclined to entertain the appeal further on the simple ground that the appeal stood admitted on 08.07.2011 and the interim application in I.A.No.2475 of 2011 stood allowed in favour of the appellant subject to condition of the appellant depositing half of the awarded amount with interest within eight (08) weeks from 08.07.2011. Even today, when the matter is taken up for hearing, the learned counsel for the appellant makes a statement that as per the instructions that he has received, the interim order till date has not been complied with. In spite of the interim order not being complied with, there has been no effort made by the appellant either to seek extension of time or for modification of that interim 9 order in any manner, which by itself shows the conduct of the appellant who was determined not to comply with the award in any manner. The appeal fails on this ground also.
15. Accordingly, the M.A.C.M.A is dismissed. No order as to costs. Consequently, miscellaneous petitions pending, if any, shall stand closed.
____________________ P.SAM KOSHY, J ____________________ N. TUKARAMJI, J Date: 12.01.2024 GMS