The State Of Maharashtra Thr The ... vs Alomonisa Hakim Kureshi And ...
2017 Latest Caselaw 4883 Bom

                                      1                      FA NO.2011/2016

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                       BENCH AT AURANGABAD

                        FIRST APPEAL NO. 2011 OF 2016

  The State of Maharashtra
  Through
  The Deputy Director of Health Service (Tr.)
  Naidu Hospital Compound, Pune -1
                                                  ...APPELLANT
                                                (Ori. Respondent)
                   VERSUS

  1.       Almonisa w/o. Hakim Kureshi,
           Age: 35 years, Occu. Household,
           R/o. Pathrud, Tal. Majalgaon,
           Dist. Beed

  2.       Mustkin s/o. Hakim Kureshi,
           Age: 21 years, Minor,
           Occu. Nil, R/o. As above

  3.       Seema D/o. Hakim Kureshi,
           Age: 17 years, Minor, U/g. of applicant -1
           Occu. Nil, R/o. As above.

  4.       Meena D/o. Hakim Kureshi,
           Age: 13 years, Minor, U/g. of applicant - 1
           Occu. Nil, r/o. As above,

  5.       Tamisbee w/o Abdul Raheman Kureshi,
           Age 72 years,Occu.Nil.,
           R/o. As above.

  6.       Vaijinath Bhanudas Raut,
           Age: 72 years, Occu. Driver,
           R/o. Sawata Mali Chowk,
           Beed                                  ...RESPONDENTS
                                   (R.Nos. 1 to 5 Ori. Applicants)
                                                 (R.No.6 Ori. Resp.)
                             ...
  Mr.C.V.Dharurkar, A.G.P. for State;
  Mr. R.B. Bhosale, Advocate for Respondent Nos. 1 to 5;
  Mr. S.R. Shirsath, Advocate for Respondent No.6.



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                                              2                         FA NO.2011/2016




                                       CORAM: P.R. BORA, J.

                          ***
  Date of reserving the Judgment :12.06.2017

  Date of pronouncing the Judgment: 21/07/2017
                         ***


  JUDGMENT:

1. The State has filed the present appeal

challenging the judgment and order passed by the Motor

Accident Claims Tribunal at Beed in M.A.C.P. No.54/2013,

decided on 7th of July, 2015.

2. Transfer of the ownership of the vehicle sold in

a public auction by the State Government whether can be

distinguished from the 'sale simpliciter' is an issue raised

in the present appeal .

3. Present respondent nos. 1 to 5 ( hereinafter

referred to as the original claimants), had filed the

aforesaid claim petition claiming compensation on account

of death of one Hakim Qureshi who died in a vehicular

accident happened on 29th of February, 2012 having

3 FA NO.2011/2016

involvement of a Jeep bearing registration No.MH-12-W-

4573. Present respondent no.6 was plying the aforesaid

Jeep when the alleged accident happened. The appellant

i.e. the Deputy Director of Health Services was made

respondent no.1 in the aforesaid claim petition since the

Jeep involved in the alleged accident was registered in the

name of the said respondent in the Office of the Regional

Transport Office. It was the contention of the original

claimants that on 29th of February, 2012, when deceased

Hakim was returning to his home from village Pimpalner

by an Appay Rickshaw, the said Rickshaw was dashed by

offending Jeep and in the accident so happened, said

Hakim received severe injuries and though he was

immediately taken to the hospital at Beed, he was

declared to have been died. According to the claimants,

age of the deceased was 40 years on the date of the

accident and he was a skilled mason and was earning

around Rs.2,00,000/- (Rs. two lakhs) per annum. It was

the further contention of the claimants that they all were

dependent upon the income of deceased Hakim. It was

alleged by the claimants that the alleged accident

happened because of the negligence of the Jeep driver i.e.

4 FA NO.2011/2016

respondent no.6 in the present appeal. The claimants

had, therefore, claimed compensation of Rs.10,00,000/-

( Rs. ten lakhs) from the driver and owner of the said

Jeep.

4. The claim petition so filed was resisted by the

appellant on various grounds. It was the main contention

of the appellant that on the date of the accident, the said

jeep was not owned by the appellant. It was the further

contention of the appellant that the said jeep was sold in a

public auction and was purchased in the said auction by

one Shaikh Faruk Shaikh Yakub, resident of Jalna Road,

Beed, along with some other vehicles for total

consideration of Rs.7,75,000/-. It was the further

contention of the appellants that on 1.3.2011 all the sold

vehicles, including the offending Jeep, were given in

possession of said Faruk. It was the further contention of

the appellant that after the date of auction and from the

date the possession was handed over to said Shaikh Faruk,

he had become the owner of the offending Jeep. It was

the further contention of the appellant that the auction

purchaser was to retrieve metal from the vehicles and the

5 FA NO.2011/2016

vehicles were not to be repaired and / or to be used on

the road. It was the further contention of the appellant

that the person who was driving the said vehicle was not

an employee of the appellant and, as such, the appellant

was not responsible for any wrongful act committed by the

said Driver.

5. In order to substantiate the defenses raised in

the written statement, one Ashok Macchindranath

Pastapure had deposed before the Tribunal and Shaikh

Faruk Shaikh Yakub was also examined by the appellant.

Learned Tribunal, however, turned down the objections

raised by the appellant and held the appellant liable to pay

the amount of compensation to the claimants. Learned

Tribunal has held the claimants entitled for the total

compensation of Rs.5,49,000/- and has directed present

respondent no.6 and the appellant to jointly and severally

pay the aforesaid amount of compensation to the

claimants together with interest thereon at the rate of 7.5

per cent from the date of application till realization.

Aggrieved thereby, appellant has preferred the present

appeal.

6 FA NO.2011/2016

6. Shri Dharurkar, learned A.G.P., assailed the

impugned judgment on various grounds. Learned A.G.P.

submitted that ample evidence has come on record to

show that on the date of the accident, the appellant was

not the owner of the offending jeep. Learned A.G.P.

further submitted that in his testimony before the Court

PW No.1 Ashok Pastapure has provided a detailed

information about selling of the offending jeep in auction

to PW No.2 Faruk and about handing over of possession of

the said Jeep to Shri Faruk on 1st of March, 2011.

Learned Counsel submitted that nothing has come on

record in the cross examination of the said witness so as

to disbelieve the fact stated by him in his testimony about

the auction conducted and purchase of the offending jeep

in the said auction along with other vehicles by PW No.2

Faruk. Learned A.G.P. submitted that PW No.2 Faruk

has also corroborated the said evidence in his testimony

before the Court. Learned A.G.P. submitted that it has

been deposed by PW No.2 that he had purchased 29

vehicles in the auction conducted at Health Department,

Latur, on 23rd February, 2011, and Jeep No.MH-12-W-

7 FA NO.2011/2016

4573 involved in the present accident was one of the

vehicle purchased by him in the said auction. Learned

A.G.P. submitted that in the written statement, the

appellant had raised all these objections by providing all

necessary particulars and in such circumstances, the

claimants were under an obligation to make PW No.2

Faruk as respondent in the said matter. Learned A.G.P.

submitted that when the appellant had placed on record

the clinching evidence showing that on the date of the

accident, the appellant was not the owner of the said

vehicle and the same was purchased by PW No.2 Faruk in

auction conducted on 23rd February, 2011, no liability

could have been fastened on the appellant of paying the

compensation to the claimants. Learned A.G.P.

submitted that the Tribunal has utterly failed in

appreciating the evidence on record. Learned A.G.P.

referred to Section 55 of the Motor Vehicles Act and Rule

57 under the Central Motor Vehicles Rules, 1989.

7 Learned A.G.P. submitted that, in view of the

provisions under Motor Vehicles Act, 1988 and the Rules,

more particularly, Section 55 read with Rule 57 of Central

8 FA NO.2011/2016

Motor Vehicle Rules, 1989, the transferee was under an

obligation to get the vehicle transferred in his name by

making necessary application under the provisions of the

Act. Learned A.G.P. submitted that the Tribunal has failed

in appreciating the relevant legal provisions in proper

perspective which has resulted in passing illegal impugned

award. He, therefore, prayed for setting aside the

impugned judgment and award.

8. Shri R.B.Bhosale, learned Counsel appearing for

the respondent nos. 1 to 5 i.e. original claimants,

supported the impugned judgment and award. Learned

Counsel submitted that on the date of the accident, in the

official record, the offending jeep was standing in the

name of the appellant as the registered owner of the said

Jeep and, as such, the appellant only is liable to pay the

amount of compensation to the present respondents.

Learned Counsel placed his reliance on the judgment of

the Honourable Apex Court in the case of Pushpa alias

Leela and others Vs. Shakuntala and others ( AIR 2011 SC

682. Learned Counsel further referred to and relied upon

the judgment of the Honourable Apex Court in the case of

9 FA NO.2011/2016

G.Govindan Vs.New India Assurance Co.Ltd. and others

( (1999) 3 SCC 754). Learned Counsel cited one more

judgment in the case of Oxide India Enterprises Vs.

Suman Kumar Singh and others delivered by the

Rajasthan High Court reported in 2016 (1) T.A.C. 781.

Learned Counsel prayed for dismissal of the appeal.

9. I have carefully considered the submissions

made on behalf of the learned A.G.P. and the learned

Counsel appearing for the respondents i.e. original

claimants. I have also perused the impugned judgment

and the other material placed on record.

10. The occurrence of the accident on 29th

February, 2012, death of Hakim Qureshi in the said

accident and involvement of the Jeep bearing registration

No.MH-12-W-4573 in the said accident are the facts which

are not in dispute. It is also not seriously disputed that

the alleged accident happened because of the rash and

negligent driving of the offending jeep by respondent no.6.

In so far as the amount of compensation, as has been

awarded by the Tribunal also, there appears no serious

10 FA NO.2011/2016

dispute. The judgment and award is challenged by the

appellant State mainly on the ground that on the date of

the accident, the Jeep involved in the alleged accident was

not owned by it and respondent no.6 was not in the

employment of the appellant State so as to hold the

appellant vicariously liable for paying the compensation to

the respondents i.e. original claimants and, as such, no

award was liable to be passed against the appellant State.

11. In the written statement filed by the appellant

before the Tribunal, it was specifically contended by the

appellant that the offending jeep was sold by it in a public

auction held on 23rd February, 2011, to one Shri Shaikh

Faruk Shaikh Yakub, resident of Jalna Road, Beed, and the

possession of the said vehicle was also handed over to him

on 1st of March, 2011. It was also the contention of the

appellant that due intimation in regard to the transfer of

ownership of the offending vehicle in the name of the

auction purchaser was also given to the R.T.O. Office.

12. In order to substantiate the defense so raised

by it, one Ashok Pastapure testified before the Tribunal on

11 FA NO.2011/2016

behalf of the appellant and Shaikh Faruk Shaikh Yakub

who had purchased the offending jeep in the auction, was

also examined by the State as its witness. Taking me

through the evidence of these two witnesses, it was sought

to be canvassed by the learned A.G.P. that from the

evidence of the aforesaid two witnesses, it has been

conclusively established by the appellant State that the

offending jeep was sold in public auction held on 23rd

February, 2011, to PW 2 Shaikh Faruk Shaikh Yakub and

that the possession of the said jeep was handed over to

said Shaikh Faruk Shaikh Yakub on 1st of March, 2011. It

was, therefore, the further contention of the learned

A.G.P. that no liability could have been fastened on the

appellant State since on the date of accident i.e. 29.2.2012

it was not the owner of the offending jeep.

13. I am, however, not convinced with the

submission so made. Even if the aforesaid facts are

accepted as it is that the vehicle was sold by the appellant

State to said Shri Shaikh Faruk Shaikh Yakub and the

possession of the said vehicle was also handed over to said

Shri Shaikh Faruk Shaikh Yakub before the date of the

12 FA NO.2011/2016

accident, the fact remains that on the date of the accident

in the official record still the name of the appellant State

was appearing as registered owner of the offending jeep.

Section 2(30) of the Motor Vehicles Act defines "Owner" in

the following terms:

"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 hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement."

Section 50 of the Act lays down the procedure for transfer

of ownership. The relevant portion of the said Section is

reproduced hereinbelow:

"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

13 FA NO.2011/2016

(2) Where -

(a) ... ...

(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.

14. It was sought to be canvassed by the learned

A.G.P. that `sale simpliciter' and `sale by auction' will

have to be distinguished in so far as the provisions under

the Motor Vehicles Act are concerned for transfer of

ownership in such cases. It was argued that for transfer

of ownership if a vehicle is sold in auction, a specific

provision is made vide sub-clause (b) of Section 2 of

Section 50 of the Motor Vehicles Act read with Rule 57 of

the Central Motor Vehicle Rules, 1989. Reading out the

said provision, it was submitted by the learned A.G.P. that

in case of purchase of a vehicle or acquisition of a vehicle

at a public auction conducted by or on behalf of the

14 FA NO.2011/2016

Government, the person succeeding to the possession of

the vehicle or, who has purchased or acquired the motor

vehicle, is cast with a responsibility to 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.

According to the learned A.G.P., the responsibility was on

the transferee of the vehicle to make an application to the

Registering Authority for the purpose of transferring the

ownership of the offending vehicle in his name. Learned

A.G.P. submitted that the appellant has undoubtedly

proved that the offending jeep was sold in auction and the

same was purchased by PW 2 Shaikh Faruk Shaikh Yakub

and the possession of the said vehicle was also handed

over to him. Learned A.G.P. further submitted that, in

the circumstances, no blame could have been attributed

on the part of the appellant State if the vehicle was not

transferred till the date of the accident in the name of the

person who purchased the same in a public auction

conducted by the State Government.

15 FA NO.2011/2016

15. The argument so advanced is fallacious.

Section 50(1)(a)(i) of the Act clearly envisages and casts

responsibility on the transferor of the vehicle to report the

fact of transfer to the Registering authority within whose

jurisdiction the transfer is to be effected and to

simultaneously send a copy of the report to the transferee.

Rule 57 of the Central Rules was also referred, to urge that

it requires the purchaser to make an application for

transfer of ownership in his name of the Government

vehicle purchased by him in auction.

Rule 57, however, cannot be read to the exclusion of

Rule 55 which mandates that the transferor shall report

the fact of transfer of ownership to the registering

authority. It makes no difference whether the

Government vehicle is sold in public auction or otherwise

in so far as the obligation cast upon the owner of the

vehicle under Section 50(1)(a)(i) is concerned. The

primary responsibility is on the registered owner of the

vehicle to report the fact of transfer within 14 days of such

transfer to the registering authority. The sale of the

Government vehicle may be a sale simpliciter or by a

public auction, obligation remains on the Government

16 FA NO.2011/2016

being a transferor to report the said fact to the registering

authority within the period stipulated for it. After the

vehicle is purchased in public auction conducted by the

State Government, the purchaser of the vehicle may or

may not make an application under Section 50(2)(b) of the

Motor Vehicles Act read with Rule 57 of the Central Rules,

the Government, being transferor cannot be absolved from

the liability of reporting the fact of transfer of ownership as

envisaged under Section 50(1)(a)(i) of the Act read with

Rule 55 of the Central Motor Vehicles Rules, 1989; failing

which, obviously, it would continue to be the registered

owner of the said vehicle and would be entitled for the

liability which may arise qua third party.

16. In view of the provisions as above, it was

incumbent on the part of the State to undoubtedly prove

that the fact of the transfer of the ownership of the

offending jeep was communicated by it to the registering

authority.

17. In this context, my attention was invited

by the learned A.G.P. to the letter dated 1st of March,

17 FA NO.2011/2016

2011, at Exh.42-C in the record of the trial Court allegedly

written by the Service Manager, Divisional Workshop,

Health Services, Transport, Latur, to the Regional

Transport Officer, Regional Transport Office at Pune,

communicating the said authority about the auction of the

old vehicles of the Public Health Department held on 23rd

February, 2011, along with the particulars of the 28

vehicles sold in the said auction with a request to cancel

the ownership of the Government and transfer the

ownership of the said vehicles in the name of the

concerned bidder from the date of delivery. It was the

contention of the learned A.G.P. that as provided under

Section 50 of the M.V.Act, within 14 days of the auction,

the report was forwarded to the Regional Transport Office

for transfer of ownership of the concerned vehicles.

However, no evidence is produced on record showing that

the aforesaid letter dated 1st of March, 2011, was actually

delivered to the R.T.O. Office at Pune. The said

document at Exh.42-C does not bear any endorsement of

the R.T.O., Pune, acknowledging the receipt of the said

letter. The appellants have also not provided any further

particulars as to whether the said letter was sent to

18 FA NO.2011/2016

R.T.O., Pune, by registered post or by which mode.

Admittedly, the appellants have not placed on record any

postal slip or postal acknowledgment receipt evidencing

receipt of the aforesaid letter by the R.T.O. Office.

18. I have carefully perused the evidence of witness

Ashok Pastapure who deposed for and on behalf of the

appellant before the Tribunal. In his testimony before

the Court the said witness has not even whispered about

issuance of any such letter dated 1st of March, 2011, to

R.T.O. Office at Pune. In his entire evidence the said

witness has not deposed that the fact of the offending

vehicle being sold in auction held on 23rd February, 2011,

was communicated to the R.T.O. Office at Pune or to any

other R.T.O. Office. The appellants have thus failed in

bringing on record any evidence to establish that they

have complied with the requirement as envisaged under

Section 50 of the Motor Vehicles Act read with Rule 55 of

the Central Motor Vehicle Rules, 1989. The appellant

also could have examined any competent officer from the

R.T.O. Office, Pune, to establish that the fact of the

offending vehicle sold in auction was communicated to the

19 FA NO.2011/2016

said office with a request to transfer the ownership of the

said vehicle in the name of the bidder who had purchased

the said vehicle in auction. Admittedly, no such evidence

has been adduced. In absence of any such evidence, it

has to be inferred that the appellant did not report the

transfer of the ownership of the offending Jeep in the

name of Shaikh Faruk Shaikh Yakub who had allegedly

purchased the said Jeep in the auction held on 23rd Feb.,

2011. The appellant, therefore, continued to be the

registered owner of the said Jeep in the record of the

R.T.O. Office.

19. It was further contended by the learned A.G.P.

that the offending Jeep was sold in the auction held on

23rd February, 2011, to Shaikh Faruk Shaikh Yakub as a

scrap material and it was not open for the said auction

purchaser to again sale the said vehicle to any other

person. Learned A.G.P. submitted that the auction

purchaser could have only extracted the metal from the

said scrapped vehicle and could not have run the said

vehicle on road or sold the same to any other person.

Learned A.G.P. submitted that inspite of the aforesaid

20 FA NO.2011/2016

conditions if the auction purchaser had sold the said Jeep

to any other person, it was at the risk of the auction

purchaser and no liability can be fastened on the State

Government.

20. The argument as above is also liable to be

rejected in view of the evidence on record. Had it been

the fact that the offending jeep along with the other

vehicles was sold as a scrap material and was not to be

brought in use at any point of time by the auction

purchaser, the appellant must have reported the said fact

to the registering authority for cancellation of the

registration of the said jeep as provided under Section 55

of the M.V. Act. Admittedly, no such report as envisaged

under Section 55 of the Act was made by the appellant.

On the contrary, the alleged letter dated 1st of March,

2011, reveals that a request was made to cancel the

ownership of the Government and transfer the said

ownership in the name of the concerned bidder from the

date of delivery.

  21.                  The       witness   examined       by     the      appellant,




                                          21                   FA NO.2011/2016

namely, Shaikh Faruk Shaikh Yakub has also denied in his

evidence before the Court that the Department has sold

the vehicles to him as a scrap material and that the said

vehicles were not to be sold further. Even in the alleged

notice of auction there is no such clause or condition that

the vehicles to be sold in the said auction were not to be

resold or were not to be used on road. The appellant

has, thus, utterly failed in establishing that the offending

jeep was sold as a scrap material and with a condition that

that it was not to be re-sold or used on the road. The

material on record thus clearly reveal that for whatsoever

reason the appellant continued to be the registered owner

of the offending jeep in the office of the R.T.O. The

respondents i.e. original claimants were, therefore, fully

justified in raising the claim against the appellant i.e. the

registered owner of the offending jeep.

22. As has been elaborately discussed by me

hereinabove, though the appellant examined Ashok

Pastapure and Shaikh Faruk Shaikh Yakub, as witnesses,

has failed to establish through the evidence of the said

witnesses that the ownership of the offending jeep was

22 FA NO.2011/2016

transferred to Shaikh Faruk Shaikh Yakub and that the

said fact was duly reported by the appellant to the

registering authority.

23. In the facts and circumstances as above, the

liability to pay the compensation amount as determined by

the Tribunal was on the appellant i.e. the recorded owner

of the offending jeep. The Tribunal has rightly cast the

said liability on the appellant and I see no error in the

finding so recorded by the Tribunal.

24. The Honourable Apex Court, in the case of

Pushpa alias Leela and others, cited supra, has, in

clear terms, held that in case of failure on the part of

transferor to take any step for change in the certificate of

registration, the transferor must be deemed to continue as

owner of the vehicle for the purposes of Motor Vehicles Act

even though, under civil law, he would cease to be the

owner after the sale of the vehicle. Though the appellant

has proved that the offending jeep was sold in a public

auction to Shaikh Faruk Shaikh Yakub and the possession

of the said jeep was also handed over to the said

23 FA NO.2011/2016

purchaser, the appellant still continued to remain liable to

third parties as its name continued in the record of the

R.T.O. as the registered owner of the offending vehicle.

The appellant, therefore, could not escape the liability to

pay the compensation to the respondent i.e. original

claimants. Shaikh Faruk Shaikh Yakub was admittedly not

a party before the Tribunal and is also not party in the

present appeal. In the circumstances, this Court may not

go into the question of inter se liability between the

appellant and the said auction purchaser. Needless to

state that it would be open for the appellant to adopt

appropriate proceedings against the said auction purchaser

if in law it is permissible and the appellant is entitled to do

so.

25. For the reasons stated above, I do not see any

reason to cause any interference in the judgment and

award impugned in the present appeal. The appeal,

therefore, deserves to be dismissed and is accordingly

dismissed, however, without any order as to the costs.

Pending Civil Applications if any, stand disposed of.

                                  24                    FA NO.2011/2016

  .        It would be open for the respondents i.e. original

claimants to withdraw the amount, if any, deposited by the

appellant in this Court, if already not withdrawn with

interest accrued thereon.

(P.R.BORA) JUDGE ...

AGP/2011-16fa