Bombay High Court
Manjitrao Ganpatrao Patil vs Smt.Vidyabai Vijay Shrikhande ... on 12 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 164 OF 2002
WITH
CIVIL APPLICATION NO. 5226 OF 2002 IN FA/164/2002
Late Manjitrao Ganpatrao Patil,
(Deceased) through his LRs.
1-A. Smt. Anandibai wd/o Manjitrao
Sultane Patil, Age: 50 years,
Occ. Agriculture, R/o Lonwadi,
Tal. Sillod, Dist. Aurangabad.
1-B. Shri Gangadhar Manjitrao Sultane,
Age: 26 years, Occ. Agriculture,
R/o. as above.
1-C. Mrs. Mangala w/o Shivajirao Tupe,
Age : 20 years, Occ. Agriculture,
R/o. Siddheshwar Co-op. Sugar
Factory, Maniknagar, Tal. Sillod,
District Aurangabad. ... Appellants...
Versus
1. Smt. Vidyabai w/o Vijay Shrikhande
Age : 31 years, Occ. Household,
R/o. C/o. D. A. Varket,
Vinod Niwas, Bahadurpura,
Aurangabad.
2. The National Assurance Co. Ltd.
Hazari Chambers, Railway Station
Road, Friends Colony,
Aurangabad.
3. Shri Kailash s/o Govindrao Gadekar,
Age: 32 years, Occ. Driver,
R/o. Mohra, Tq. Kannad,
District Aurangabad.
4. Laxmibai w/o Baburao Shrikhande,
Age : 51 years, Occ. Agriculture,
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R/o. E-79/1, N-11, Near TV Centre,
Hudco, New Aurangabad.
5. Bhimrao s/o Shankar Bhivsane
Died, through L.Rs.
5A. Smt. Hausabai w/o Bhimrao Bhivsane,
Age 43 years, Occ. Household,
R/o Chincholi (N),
Now Taluka Phulambri,
District Aurangabad.
5B. Shivaji Bhimrao Bhivsane,
Age 23 years, Occ. Agriculture,
R/o. As above.
5C. Mrs. Usha Vilas Jadhav,
Age 20 years, Occ. Agriculture,
R/o Wanegaon, Tq. Phulambri,
Dist. Aurangabad.
5D. Mrs. Komal Babasaheb Shirsath,
Age 19 years, Occu. Agriculture,
R/o Babra, Tq. Phulambri,
Dist. Aurangabad.
5E. Kanchan Bhimrao Bhivsane,
Age 13 years, Occ. Education
(minor) u/g of real mother
L.R. 5A. Smt. Hausabai w/o
Bhimrao Bhivsane,
Age 43 years, Occ. Household,
R/o Chincholi, Taluka Phulambri,
District Aurangabad.
5F. Kiran Bhimrao Bhivsane,
Age 11 years, Occu. Education,
(minor) u/g of real mother L.R. 5A,
Smt. Hausabai w/o Bhimrao Bhivsane
Age 43 years, Occ. Household,
R/o Chincholi, Taluka Phulambri,
District Aurangabad.
6. Anwar Khan s/o Aziz Khan Pathan,
Age : 38 years, Occ. Head Constable,
Khultabad Police Station,
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Taluka Khultabad, Dist. Aurangabad,
R/o. Kannad, Taluka Kannad,
District Aurangabad.
Respondent Nos. 5 and 6 deleted as per
Court's order dated 09.09.2010
7. New India Insurance Co.,
Through its Manager,
Adalat Road, Aurangabad.
8. Shri Mahesh Vijay Shrikhande,
Age : 3 years (minor) u/g of
Respondent No.1 mother.
ig .....
Advocate for the appellants : Mr. Sidharth R. Deshpande
Advocate for respondent Nos. 1, 4 & 8 : Mr. Deelip Bankar Patil
Advocate for respondent No.3 : Mr. P. P. Bafna
Respondent No. 5 : Mr. P. D. Suryawanshi
.....
CORAM : V. K. JADHAV, J.
RESERVED FOR JUDGMENT ON: 5th APRIL, 2016
JUDGMENT PRONOUNCED ON: 12th APRIL, 2016
JUDGMENT SIGNED ON: 04th MAY, 2016
JUDGMENT:-
1. Being aggrieved by the judgment and award dated 01.03.2001
passed by learned Member, MACT, Aurangabad in MACP No. 196 of
1994, original respondent No.1 has preferred this appeal.
2. Brief facts giving rise to the present appeal are as follows:
a) On 05.02.1994 at about 6.30 p.m., deceased Vijay, who was
serving as Police Constable, was coming from Jalna Road on vehicle
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T.V.S. Suzuki with another Police Constable Anwarkhan. Said
Anwarkhan was riding the motor cycle and deceased Vijay was the
pillion rider. On way, one tractor and trolley bearing registration Nos.
MHC-6190 and MTS-8984 respectively, coming from the opposite
direction, gave dash to the motorcycle, in consequence of which,
deceased Vijay sustained grievous injuries. Deceased Vijay was
immediately shifted to Medical College and Hospital, Aurangabad,
where he succumbed to the injuries while under treatment. Accident
had taken place on account of rash and negligent driving of driver of
the tractor. The legal representatives of deceased Vijay filed petition
bearing MACP No. 196 of 1994 for grant of compensation under
various heads before the Motor Accident Claims Tribunal at
Aurangabad.
b) The appellant (original respondent No.1) has strongly resisted
the claim by filing his written statement Exh.29. It is specifically
contended in his written statement that respondent No.1 was not the
owner of said tractor and trolley alleged to have been involved in the
accident and that he had no knowledge whether respondent No.3
was driving the said tractor at the time of said accident. It is further
contended in the written statement that on 17.11.1993, respondent
No.1 agreed to sale the said tractor and trolley to original respondent
No.5-Bhimrao for a consideration of Rs.1,31,000/- out of which, an
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amount of Rs.65,500/- was paid by way of earnest amount and the
remaining amount was to be paid by the end of March, 1994. It is
also contended in his written statement that an agreement to that
effect had also taken place and possession of said tractor and trolley
came to be delivered to respondent No.5-Bhimrao. Respondent
No.1, thus, disown the liability to pay compensation on the ground of
transfer of vehicle to respondent No.5 prior to the accident. Further,
the claim petition is also resisted on the ground that the motorcycle
rider was responsible for the accident.
c) Original respondent No.5-Bhimrao has not filed any written
statement. So far as the written statements filed by original
respondent No.2 and respondent No.6-Anwarkhan are concerned,
the same are not required to be considered since the appeal is
preferred by original respondent No.1 to the extent of his liability to
pay the compensation.
d) Learned Member, MACT, Aurangabad, by impugned judgment
and award dated 01.03.2001, partly allowed the petition and thereby
directed respondent No.1 i.e. the present appellant and respondent
No.3 jointly and severally to pay compensation of Rs.2,83,960/- to
the petitioners together with interest from the date of petition till
realization with proportionate costs.
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3. The main controversy involved in the present appeal is about
the transfer of vehicle i.e. tractor and trolley prior to the accident by
the appellant in favour of respondent No.5-Bhimrao. The appellant-
original respondent No.1 disown the liability to pay compensation on
this count.
4. Learned counsel for the appellant submits that the appellant
sold the tractor bearing registration No. MHC-6190 and trolley
bearing registration No. MTS-8984 to respondent No.5-Bhimrao
under an agreement dated 17.11.1993, and accordingly, handed
over possession of said tractor and trolley to respondent No.5 by
accepting earnest amount. Learned counsel submits that the
appellant had handed over all the documents of said tractor and
trolley to respondent No.5-Bhimrao and also signed T.T.O. forms for
transfer of tractor and trolley in his name. Learned counsel submits
that on the date of accident i.e. on 05.02.1994, said tractor and
trolley were not in possession of the appellant and it were in
possession of respondent No.5-Bhimrao. Learned counsel submits
that as per the said agreement, for all the acts, respondent No.5, who
is in possession of the said vehicle, will be responsible. Learned
counsel submits that the said agreement is duly proved before the
tribunal and the same is marked at Exh.78. Learned counsel submits
that respondent No.5-Bhimrao has not contested the claim petition by
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filing his written statement. Learned counsel submits that respondent
No.5-Bhimrao has not denied before the tribunal the execution of
agreement of transfer of said tractor and trolley and the possession
thereof.
5. Learned counsel submits that Section 2(30) of the Motor
Vehicles Act, 1988, which corresponds with Section 2(19) of the
Motor Vehicles Act, 1939, provides the definition of the term "owner".
Learned counsel submits that in view of the exhaustive definition of
the term "owner", the person in possession of the vehicle under an
agreement is also to be treated as an owner of the vehicle. Learned
counsel submits that in view of the provisions of Section 50 Sub-
section 1(b), it is equally the responsibility of the purchaser to
intimate the authority, of the purchase of vehicle and is required to
forward certificate of registration to the registering authority within
whose jurisdiction he has the residence or place of business where
the vehicle is normally kept, together with the prescribed fee and a
copy of the report received by him from the transferor. Learned
counsel submits that in terms of the sale agreement Exh.78, as
agreed between the parties, the original documents of vehicle tractor
and trolley are handed over to the purchaser and thus, the purchaser
has to apply for transfer of the said tractor and trolley in his name by
way of paying necessary fees. Learned counsel submits that it was
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the sole duty of the purchaser to get the tractor and trolley
transferred in his name. Learned counsel submits that the tribunal
has given unnecessary weightage to the fact that the appellant has
got release of the tractor and trolley from concerned Police Station
after it were attached, in accident. Learned counsel further submits
that the tribunal has fastened the liability on the appellant only on the
ground that appellant is the registered owner of vehicle involved in
the accident on the date of accident. Learned counsel submits that
respondent No. 5-Bhimrao has not filed his written statement and in
absence of his pleading, his evidence cannot be accepted.
6. Learned counsel submits that the property sold under
agreement is a movable property and therefore, the provisions of
Sale of Goods Act are applicable. Learned counsel submits that the
tribunal should have relied upon the agreement Exh.78 and
exonerated appellant No.1 from the liability to pay compensation.
Learned counsel submits that since the Motor Accident Claims
Tribunal is a Tribunal, strict rules of evidence are not applicable.
Learned counsel submits that the tribunal has accepted xerox copy
of agreement Exh.78 since no objection in this regard has been
raised by respondent No.5. Learned counsel submits that respondent
No.5 even has not bothered to file his written statement. Learned
counsel submits that respondent No.5, now, cannot raise the ground
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of admissibility of the said agreement in evidence for the first time in
appeal.
7. Learned counsel for the appellant further submits that as per
police papers, at the time of accident, the trolley attached to the
tractor was fully loaded with soil and thus, speed of the tractor could
not have exceeded above 15 to 20 Kms. per hour. Learned counsel
submits that there is no negligence on the part of the driver of tractor
and said Anwarkhan, who was riding the motorcycle without driving
license, was responsible for the accident. Learned counsel submits
that no eye witness was examined before the tribunal and the
evidence brought before the tribunal is in the form of documents.
Learned counsel submits that the deceased was a Police Constable
and his father was Sub-Inspector of Police, therefore, false
documents were created by the police authorities. Learned counsel
submits that the tribunal has awarded exorbitant amount of
compensation without considering the income of deceased and the
dependency of claimants on that income. Learned counsel for the
appellant, in order to substantiate his submissions, placed reliance
on the following cases:
1. Asha d/o Bhalchandra Joshi vs. National Insurance Co.
Ltd., reported in 2008(1)Mh.L.J.724,
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2. Santa Monica Convent alias Convento de Santa Monica
alias Mosteiro de Santa Monica vs. Anant Vithal Kubal
and another, reported in 2006 (2) Bom.C.R.765,
3. United India Insurance Co. Ltd. Parbhani vs. Sayaji s/o
Masuji Shinde and others, reported in 2009 (3) Mh.L.J.
539,
4. Kishan Pandurang Kagde vs. Baldev Singh Gian Singh
and another, reported in 1977 Mh.L.J. 656 and
5. Raj Rani vs. Oriental Insurance Co. Ltd., reported in
(2009) 13 Supreme Court Cases 654.
8. Mr. Suryawanshi, learned counsel for respondent No.5-
Bhimrao submits that appellant has failed to prove the agreement
Exh.78 before the tribunal. Learned counsel submits that appellant
has not obtained any leave from the tribunal to lead secondary
evidence in respect of the said agreement. Learned counsel submits
that even though xerox copy of the so called agreement is placed
before the tribunal without any permission to lead secondary
evidence, the said agreement was considered and accordingly,
accepted by the tribunal. Learned counsel submits that the appellant
has not filed any application before the tribunal for production of the
xerox copy of agreement as original was not in his custody. Learned
counsel submits that, thus, the photo stat copy of the document of
agreement could not have been accepted by the tribunal. Learned
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counsel submits that on the date of accident, appellant was the
registered owner of the vehicle. Learned counsel submits that after
the accident, even the appellant got custody of the vehicle involved in
the accident. Learned counsel submits that appellant could not
escape the liability to pay compensation. Learned counsel submits
that the tribunal has rightly saddled the appellant with liability to pay
the compensation.
9.
Learned counsel, in order to substantiate his submissions,
placed reliance on the following cases:
1 The National Insurance Co. Ltd. vs. Rajeev Verma and
Others, reported in 2007 ACJ 1643,
2 Sudhir Bhuiya vs. National Insurance Co. Ltd. and ....,
reported in 2005 ACJ 509,
3 Prakash s/o Mahadeorao Nirmal vs. Rajesh Ramfer
Yadav and Others, reported in 2014 (3) Mh.L.J. 415,
4. Babu s/o Tukaram Gute (Died through L.Rs.) vs.
Ganpati s/o Bhanudas Sampate & Others (First Appeal
No.461 of 2011) decided by this Court on 21.03.2012 and
5. Aaditya Khare vs. Jamuna Prasad Kahar and four
others, reported in 2007 ACJ 2085.
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10. Mr. Bankar Patil, learned counsel for respondent Nos.1, 4 and
8 i.e. the original claimants, submits that the tribunal has rightly
considered the negligence on the part of driver of tractor and
accordingly, awarded just and reasonable compensation under
various heads by considering the income of deceased Vijay and the
dependency of claimants on his earnings at the time of accident.
11. I have also heard learned counsel Mr. P.P.Bafna appearing for
respondent No.3-insurer.
12. Section 2(30) of the Motor Vehicles Act, 1988 (for short "the
Act of 1988) defines the term "owner" as under:
"2(30) "owner" means a person in whose name a motor vehicle
stands registered, and where such person is a minor,
the guardian of such minor, and in relation to a motor
vehicle which is the subject of a hire-purchase,
agreement, or an agreement of lease or an agreement
of hypothecation, the person in possession of the
vehicle under that agreement;"
It appears from the said definition that the person named in the
registration certificate presumed to be the owner of the vehicle in
absence of any other material. It also appears that the definition of
term "owner" is now made exhaustive and a person in possession of
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a vehicle under an agreement may also be treated to be an owner of
the said vehicle. It also appears from the provisions of Section 2(30)
of the Act of 1988 that the person in possession of the vehicle under
i) hire-purchase, ii) agreement, iii) or agreement of lease, iv) or an
agreement of hypothecation may also be treated to be an owner of
the vehicle. The subject of "hire-purchase" and "agreement" are
separately marked and further, "agreement" is classified as
"agreement of lease" or "agreement of hypothecation".
13. Section 50 of the Act of 1988 speaks about the "transfer of
ownership". The same is reproduced as below:
"50. Transfer of ownership.-
(1) Where the ownership of any motor vehicle registered under
this Chapter is transferred,-
(a) the transferor shall,-
(i) In the case of a vehicle registered within the same State,
within fourteen days of the transfer, report the fact of
transfer, in such form with such documents and in such
manner, as may be prescribed by the Central
Government to the registering authority within whose
jurisdiction the transfer is to be effected and shall
simultaneously send a copy of the said report to the
transferee; and
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(ii) in the case of a vehicle registered outside the State,
within forty five days of the transfer, forward to the
registering authority referred to in sub-clause (i)-
(A) the no objection certificate obtained under section
48; or
(B) in a case where no such certificate has been
obtained,-
(I) the receipt obtained under sub-section(2) of
section 48; or
(II) the postal acknowledgment received by the
transferee if he has sent an application in this
behalf by registered post acknowledgment due
to the registering authority referred to in section
48,
together with a declaration that he has not received any
communication from such authority refusing to grant
such certificate or requiring him to comply with any
direction subject to which such certificate may be
granted;
(b) the transferee shall, within thirty days of the transfer,
report the transfer to the registering authority within
whose jurisdiction he has the residence or place of
business where the vehicle is normally kept, as the case
may be, and shall forward the certificate of registration
to that registering authority together with the prescribed
fee and a copy of the report received by him from the
transferor in order that particulars of the transfer of
ownership may be entered in the certificate of
registration.
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(2) Where-
(a) the person in whose name a motor vehicle stands
registered dies, or
(b) a motor vehicle has been purchased or acquired at a
public auction conducted by, or on behalf of,
Government,
the person succeeding to the possession of the vehicle or,
as the case may be, who has purchased or acquired the
motor vehicle, shall make an application for the purpose of
transferring the ownership of the vehicle in his name, to the
registering authority in whose jurisdiction he has the
residence or place of business where the vehicle is normally
kept, as the case may be, in such manner, accompanied
with such fee, and within such period as may be prescribed
by the Central Government.
(3) If the transferor or the transferee fails to report to the
registering authority the fact of transfer within the period
specified in clause (a) or clause (b) of sub-section (1), as
the case may be, or if the person who is required to make
an application under sub-section (2) (hereafter in this
section referred to as the other person) fails to make such
application within the period prescribed, the registering
authority may, having regard to the circumstances of the
case, require the transferor or the transferee, or the other
person, as the case may be, to pay, in lieu of any action that
may be taken against him under section 177 such amount
not exceeding one hundred rupees as may be prescribed
under sub-section (5):
Provided that action under section 177 shall be taken
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against the transferor or the transferee or the other person,
as the case may be, where he fails to pay the said amount.
(4) Where a person has paid the amount under sub-section (3),
no action shall be taken against him under section 177.
(5) For the purposes of sub-section (3), a State Government
may prescribe different amounts having regard to the period
of delay on the part of the transferor or the transferee in
reporting the fact of transfer of ownership of the motor
vehicle or of the other person in making the application
under sub-section(2).
(6) On receipt of a report under sub-section(1), or an
application under sub-section (2), the registering authority
may cause the transfer of ownership to be entered in the
certificate of registration.
(7) A registering authority making any such entry shall
communicate the transfer of ownership to the transferor and
to the original registering authority, if it is not the original
registering authority."
Section 50 corresponds to Section 31 of the Motor Vehicles
Act, 1939. Section 50 provides for recording transfer of ownership of
a motor vehicle in the certificate of registration by the registering
authority when the property changes hands due to sale or inheritance
or purchase in public auction conducted by the Government. It also
lays down that if the transfer is not reported to the registering
authority within the prescribed time, the parties are liable for
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prosecution and if the party pays the prescribed amount in lieu of
prosecution, no further action is to be taken. The object underlaying
the provisions of Section 50 is that the registering authority must
have the name of proper person who is liable to pay tax. It is clear
from the said provisions that after change of ownership of the
vehicle, the corresponding change should be recorded in the
certificate of registration. There is no provision in the Motor Vehicles
Act which deals with the point of time from which transfer of
ownership of the motor vehicle comes into effect, and the same is
governed by the provisions of the Sale of Goods Act. It is settled that
transfer of ownership takes place from the date of sale and not from
the date on which the name of transferee is recorded in the record of
registering authority.
14. In the case in hand, appellant Manjitrao has examined himself
on oath at Exh.73. He has given all the details of the sale transaction
of tractor bearing registration No. MHC-6190 and trolley bearing
registration No. MTS-8984 in favour of respondent No.5-Bhimrao.
He has deposed that on 11.11.1993, the stamp was purchased and
thereafter, he himself and respondent No.5-Bhimrao alongwith some
other persons went to Sillod for preparing and executing an
agreement. He has further deposed that as per his instructions,
contents of the bond were written by the scribe. He has further
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deposed that on that day, Rs.65,500/- were paid to him by
respondent No.5-Bhimrao and the remaining amount was to be paid
by the end of March, 1994. He has further deposed that he signed
the T.T.O. form and handed over original papers to respondent No.5-
Bhimrao. He has further deposed that possession of the tractor was
also delivered to respondent No.5-Bhimrao on the same day.
According to him, at the instance of respondent No.5-Bhimrao, the
said agreement was executed before the notary.
ig He has further
deposed that he kept the xerox copy of said agreement and the
original agreement remained in the custody of respondent No.5-
Bhimrao. He has further deposed that since 17.11.1993, the tractor
was in the custody of respondent No.5-Bhimrao and respondent No.3
Kailash (driver) was employed by respondent No.5-Bhimrao. He was
not subjected to cross-examination by respondent No.5. Respondent
No.5 has not filed his written statement and therefore, by order dated
16.11.2000, the tribunal has directed to proceed with the claim
petition without written statement of respondent No.5-Bhimrao.
15. Respondent No. 1 has examined witness Ramkisan Sultane
who is attesting witness to the said agreement. He has deposed on
the same lines. He has deposed that the agreement Exh.78 bears
his signature and its contents are true and correct. He has also
deposed that the original documents were given in custody of
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respondent No.5-Bhimrao and also appellant Manjitrao gave signed
T.T.O. forms to respondent No.5-Bhimrao. He has also deposed that
on the date of execution of agreement Exh.78, the appellant has
handed over possession of tractor and trolley to respondent No.5-
Bhimrao.
16. Respondent No.5-Bhimrao has not cross-examined the
appellant, nor his witness Ramkisan Sultane.
ig Respondent No.5-
Bhimrao, though examined himself on oath at Exh.75, has not raised
any objection before the tribunal for accepting the said photo stat
copy of agreement. Mere failure on the part of defendant to file
written statement would not divest his right to cross-examine the
plaintiff. Needless to state that he will not be entitled to put forth his
case, however, the defendant, in that event, is entitled to challenge
the credibility of evidence produced by the plaintiff and even to point
out whether any part of the evidence is admissible or non admissible,
including the documentary evidence produced by the plaintiff. In the
case in hand, respondent No.5 could have cross-examined the
appellant and could have raised an objection regarding non
admissibility of the said agreement Exh.78 produced on record by the
appellant and sought to be proved by examining the attesting witness
to the said agreement. In my opinion, respondent No.5, now, cannot
raise the said ground for the first time in appeal.
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17. It is not necessary that in the proceeding under Motor Vehicles
Act, the Rules of pleadings or evidence are not to be strictly adhered.
Even strict Rules of evidence may not be applicable to the cases
under Motor Vehicles Act. In the case in hand, no one has raised
objection for accepting the agreement especially respondent No.5
has not denied the execution of said agreement in favour of the
appellant. Respondent No.5 has examined himself on oath at
Exh.75, however, in absence of any pleading, he was not entitled to
put forth his case. In absence of any pleadings, if respondent No.5
has denied the execution of an agreement, the same is liable to be
ignored.
18. In the case in hand, the document Exh.78, to which respondent
No.5 is a party, clearly shows that appellant sold the vehicle as
detailed in the agreement to respondent No.5 on receiving
substantial portion of amount of consideration and delivered
possession of vehicle on the day of its execution itself, as a
consequence thereof. It also appears from the contents of agreement
Exh.78 that all the original documents were handed over to
respondent No.5 along with T.T.O. forms signed by the appellant . It
is true that appellant has given admission in his cross-examination to
the effect that he has not received the balance amount yet, and
therefore, the transaction is still alive. He has further admitted in his
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cross-examination that he has filed an application before the tribunal
for custody of the tractor. It also appears from the contents of the
agreement Exh.78 that in the event of failure to pay the balance
amount, appellant would be entitled to get back possession of the
tractor.
19. It appears from the impugned judgment and award that the
tribunal has doubted the execution of agreement Exh.78. The
appellant has deposed that initially it was an oral agreement to sale
the vehicle. However, it as agreed to reduce the transaction in writing
and accordingly, stamp was purchased on 11.11.1993. Learned
Member of the tribunal has doubted the agreement for the reason
that though stamp was purchased on 11.11.1993, it was executed on
17.11.1993. The tribunal has ignored that the appellant has deposed
that the scribe was available at Sillod and accordingly, as per
convenience of the parties, along with the witnesses, they went to
Sillod on 17.11.1993 and accordingly, the said agreement was
scribed and executed before the notary. In the backdrop of this, the
tribunal has erroneously given weightage to the record of registering
authority and held that the appellant, since shown as an owner in the
record of registering authority, is liable to pay the compensation. The
tribunal has also not considered that respondent No.3-Kailash (driver
of the tractor) was the employee of respondent No.5 and he was
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driving the tractor at the time of accident and after the accident, crime
was registered against him.
20. In the case of Babu s/o Tukaram Gute (supra) relied upon by
learned counsel for respondent No.5, this Court has observed that
deceased Babu in that case, failed to prove that on the date of
accident, the motorcycle was already sold to the alleged transferee.
Dealing with the legal aspect, by referring the case of Dr. T.V.Jose
vs. Chacko P.M., reported in 2001 ACJ 2059 (SC), this Court has
distinguished the same, and accordingly, in paragraph No.31 and 32
of the judgment, has made the following observations:
"31. The facts in the case of Dr.T.V.Jose (Supra) before the
Supreme Court would show that after the appellant
T.V.Jose, the offending car has changed at least three
hands till the date on which the accident occurred and Mr.
Roy Thomas was the last owner. In those circumstances,
the Supreme Court has observed that as to who should be
liable to pay the compensation, is a matter between the
transferee and transferor and the Supreme Court would
not go into that question and the appellant may adopt
appropriate proceedings against the alleged transferee in
law, if he is entitled to do so.
32. In the petition under Section 166 of the Motor Vehicles Act,
the Tribunal is mainly concerned with the aspect of grant of
compensation to the claimants either from the owner
and/or from the Insurance Company, in case the vehicle is
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insured. It may be noted that the law provides the contract
with the Insurance Company to be a compulsory contract,
yet on number of occasions, the owners of the motor
vehicle flout the provisions detrimental to their own
interest, resulting into the situation that had arisen in the
present case. This fact cannot exclude the owner from
their liability to pay the compensation."
21. In the case in hand, the vehicle tractor was not insured at the
time of accident, and therefore, the tribunal has exonerated the
insurer from the liability to pay the compensation.
22. In another case Aaditya Khare (supra), relied upon by
learned counsel for respondent No.5, the Madhya Pradesh High
Court, in paragraph Nos. 16 and 17 of the judgment, made the
following observations:
"16. It is true that the definition of "owner" under the Motor
Vehicles Act, 1939 was different. In the earlier enactment
the definition was not exhaustive, therefore, it included the
person in whom the proprietary title vested. In the earlier
definition the word "owner" included the registered owner
as well as unregistered owner or transferee of the vehicle
but after the change of the definition in the Motor Vehicles
Act, 1988 the definition of "owner" is exhaustive. The
judgment in Sanjay Singh's case (supra) relates to the
definition of the "owner" under the Motor Vehicles Act,
1939. The Judgment of Apex Court in Panna Lal's case
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(supra) also relates to the Motor Vehicles Act, 1939. The
judgment in Rajasthan State Road Transport Corporation
(supra) relates to hirer in possession.
17. Sub-section (30) of Section 2 of Motor Vehicles Act, 1988
does not say that the moment the price is paid and the
possession of motor vehicle is delivered to the purchaser,
the registered owner is absolved of his liability. What is
required for the purpose of Sub-section (30) of Section 2 of
the Act is that the name of the purchaser is recorded in the
registration certificate. Unless the name of the person is
registered he cannot become the owner of the vehicle.
Thus, on the date of the accident the respondent No.4 did
not become the owner of the offending vehicle and the
appellant continued to be the owner thereof. The
respondent No.4 became the owner only on 17.12.1991
when his name was transferred in the record of the R.T.O.
Therefore, in view of the definition of the "owner" under
Sub-section (30) of Section 2 of the Act the appellant alone
was the owner of the offending motor cycle on the date of
the accident. He was, therefore, responsible for the
vicarious liability and respondent No.4 is not liable as
purchaser in whose name the vehicle was not transferred
till the date of the accident."
23. In the case cited above, the vehicle was transferred after the
accident. The ratio as laid down in the case cited above cannot be
made applicable to the present case.
24. The tribunal has considered certified copies of the F.I.R. and
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the spot panchnama. Witness No. 6 Anwarkhan, who was riding the
motorcycle, has examined himself on oath at Exh.81. He has
deposed that the tractor was coming from opposite direction in speed
and without lights. Respondent No.3 Kailash Gadekar was driving
the said tractor in rash and negligent manner and gave dash to the
motorcycle. After the accident, offence was registered against driver
of the tractor alone. After the accident, driver of the tractor left the
spot without giving any intimation about the accident to the
concerned police station. It appears from the contents of the spot
panchnama that the tractor went to wrong side and by entering on
"one way" for the vehicles coming from the opposite direction, gave
dash to the motorcycle. I do not find any fault in the finding recorded
by the tribunal that deceased Vijay met with an accidental death on
account of rash and negligent driving of the tractor and trolley
bearing registration No. MHC-6190 and MTS-8984 respectively, by
respondent No.3.
25. The tribunal has considered the salaried income of deceased
Vijay. Salary certificate issued by the concerned authority is placed
on record and after deducting 1/3 income on account of personal
expenses, the tribunal has considered the dependency at Rs.1522/-
per month and by applying multiplier 15, worked out the
compensation to the tune of Rs.2,83,960/-. Learned Member of the
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tribunal has also awarded compensation for "loss of consortium" etc.
In my opinion, the tribunal has awarded just and reasonable
compensation.
26. In light of the above observation, I proceed to pass the
following order :
ORDER
I.
The First Appeal is hereby partly allowed.
II. The judgment and award dated 01.03.2001 passed by
learned Member, MACT, Aurangabad in MACP No. 196 of
1994 is quashed and set aside to the extent of fixing the
liability on respondent No.1 to pay the compensation jointly
and severally along with respondent No.3.
Instead, respondent No.5-Bhimrao Shankar Bhivsane and
respondent No.3-Kailash Govindrao Gadekar are jointly
and severally liable to pay compensation of Rs.2,83,960/-
by way of compensation to the petitioners together with
interest at the rate of 9% per annum from the date of
petition till realization with proportionate costs of the
petition.
III. The claim as against respondent Nos.1, 2, 4, 6 and 7
stands dismissed.
IV. Award be drawn up accordingly.
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V. The First Appeal is stands disposed of.
VI. In view of disposal of First Appeal, pending civil application
also stands disposed of.
27. By a separate order dated 02.05.2016, the First Appeal was
kept on board today i.e. on 04.05.2016 for re-hearing. The matter is
heard today. I have perused the original text of The Motor Vehicles
Act, 1988, as published in The Gazette of India, Extraordinary, Part
II, and it appears that in the definition of the term "owner" as provided
in Section 2(30) of the said Act, there appears to be a comma after
the printed words "hire-purchase" and before the word "agreement".
In view of this, today, I sign the judgment as pronounced on
12.04.2016.
( V. K. JADHAV, J.)
...
vre/-
