Delhi High Court
India Lease Development Ltd. vs Savita & Ors. on 5 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:1st March, 2012
Pronounced on: 5th March, 2012
+ MAC. APP. No.130/2011 & CM. APPL No.17923/2011
INDIA LEASE DEVELOPMENT LTD. ..... Appellant
Through: Mr.G.P.Thareja, Advocate
Versus
SAVITA & ORS. ..... Respondents
Through: Mr.Nitin Yadav and Mr. Hameed
Sheikh, Advocates for
Respondents No.1, 3 & 5.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant India Lease Development Ltd. impugns a
judgment dated 04.01.2011 whereby a compensation of
`7,41,000/- was awarded in favour of Respondents No.1 to 5.
2. The contentions raised on behalf of the Appellant are:
i) The Appellant was the financier and lessor of
Vehicle No.DL-2CB-2575 leased to the Seventh
Respondent (Anil Kumar). According to Section
2(30) of the Motor Vehicles Act where a vehicle
is subject to Hire Purchase Agreement or an
Agreement of Lease, the person in possession of
the vehicle under that agreement is liable as
owner thereof and not the Financier.
ii) The deceased was travelling as a pillion rider on a
two-wheeler without wearing any helmet.
Therefore, the deceased has contributed to the
accident and his consequent death.
iii) There was clerical mistake in the computation of
loss of dependency as the Claims Tribunal, on
account of clerical mistake, took the same as
`2,719/- and rounded it off to `2,750/- instead of
` 2,179/- to calculate the total loss of dependency.
iv) The Appellant moved an application to implead
Vijay Kumar as he had obtained the vehicle on
superdari and was in actual possession of the
vehicle. He was liable being the rightful owner of
the offending vehicle; the Claim Petition was bad
for non-joinder of necessary party.
3. Section 168 of the Motor Vehicles Act enjoins the Claims
Tribunal to hold an inquiry into the claim, make an award
determining just compensation and specifying the person or
persons to whom the compensation shall be paid. The Claims
Tribunal is under an obligation to specify the amount which
shall be paid by the insurer or owner or the driver of the
vehicle. The term "owner" is defined under Section 2(30) of
the Act, which is extracted hereunder:
"(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;"
4. A bare reading of the provision shows that in relation to a motor
vehicle which is the subject of an agreement of lease or an
agreement of hypothecation etc., the person in possession of
the vehicle under that agreement would deem to be the owner
of the vehicle. The Appellant proved on record an Agreement
of Lease Ex.R4W1/2, through its authorized representative
Yogesh Kumar, which was valid for a period of two years.
Yogesh Kumar testified that the Seventh Respondent(Anil
Kumar) defaulted in payment of installments and ultimately
made payment of all outstanding lease charges and approached
the Appellant for transfer of the vehicle in the records of the
registering authority in his name. He deposed that the
Appellant issued a sale letter dated 16.08.1995, also signed
Form 29 and 30 and recorded the transfer of ownership of the
motor vehicle as per the Motor Vehicles Act. He deposed that
the Seventh Respondent (Anil Kumar) assured the Appellant
that he would take necessary steps for effecting transfer of the
vehicle in the records of the registering authority. Thus, it is
evident that the lease agreement was no longer subsisting
between the Appellant and the Seventh Respondent.
Admittedly, the vehicle stood registered in Appellant's name.
Even if it is assumed that the Appellant executed documents
for transfer of the vehicle, yet no information was sent to the
registering authority within a period of 14 days as provided
under Section 50 of the Act. Section 50 (i) is extracted
hereunder:
"50. Transfer of ownership-(1) ...........
(a).........
(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"
5. Thus, the lease agreement had come to an end in the year 1995,
and the accident occurred in the year 1998, therefore, in the
absence of any intimation to the registering authority, the
Appellant continued to be the registered owner of the vehicle.
The learned counsel for the Appellant relies on the judgment in
Godavari Finance Co. v. Degala Satyanarayanamma & Ors,
AIR 2008 SC 2493 in support of the contention that in case of
an agreement of lease, the person in actual control of the
vehicle is liable. In view of the facts stated above, since the
lease agreement had come to an end, the Appellant cannot
escape the liability being the registered owner. Godavari
Finance Co.(supra) will not come to the rescue of the
Appellant.
6. The Claims Tribunal relied on Dr. T.V. Jose v. Chacko P. M.,
AIR 2001 SC 3939. Para 49 of the impugned judgment is
extracted hereunder:
"49. In Dr. T.V. Jose's case (supra), Dr. T.V. Jose
was the registered owner of the offending vehicle
which had met with an accident on 9/4/1987. The LRs
of the deceased had filed a claim petition against Dr.
T.V. Jose, the driver of the offending vehicle and the
insurance company. The plea of Dr. Jose was that he
had sold the offending vehicle on 7/5/1986 to Smt.
Bhawani. She had further sold it to Aboobacker. Sh.
Aboobacker had sold the offending vehicle to Roy
Thomas on 18/8/1986. Thus, Dr. Jose claimed that on
the date of accident he was not owner of the offending
vehicle. The driver had claimed that Dr. Jose was the
owner. Since the insurance policy, which was in the
name of Dr. Jose, was an act policy only, therefore,
the insurance company had put forth the plea that it
was not liable. Dr. Jose had appeared before the
MACT and had examined Smt. Bhawani, her son,
Aboobacker and George Methew to substantiate his
defence. The driver produced the evidence that Dr.
Jose was still the owner of the offending vehicle. The
tribunal held that Dr. Jose was not the owner. The
insurance company was also exonerated. The driver
was held liable to pay the compensation. The driver
and LRs of the deceased had preferred the appeal.
The Hon'ble Kerala High Court had held that Dr.
Jose was the owner and was liable to pay the
compensation. Dr. Jose challenged that judgment.
The Hon'ble Supreme Court, in para 10 of the
judgment observed as under:
10. We agree with Mr. Iyer that the High Court
was not right in holding that the appellant
continued to be the owner as the name had not
been changed in the records of the RTO. There
can be transfer of title by payment of
consideration and delivery of the car. However,
the appellant still continued to remain liable to
third parties as his name continued in the records
of RTO as owner. The appellant could not escape
that liability by merely joining Mr. Roy Thomas in
these appeals. Mr. Roy Thomas was not a party.
In these appeals we cannot and will not go into
the question of inter se liability between the
appellant and Roy Thomas. It will be for the
appellant to adopt appropriate proceedings
against Mr. Roy Thomas if, in law, he is entitled
to do so."
7. A reference may be made to a judgment in Pushpa alias Leela
& Ors. v. Shakuntala & Ors, AIR 2011 SC 682, wherein it was
held that in the absence of taking any steps by the registered
owner for transfer of the vehicle, the registered owner would
continue to be liable. Since the Seventh Respondent has not
come forward to deny the execution of the sale letter and Form
29 and 30 for transfer of the vehicle, he is proved to be the
rightful owner of the vehicle. He too cannot escape the
liability and would be liable to pay the compensation to the
Claimants along with the registered owner.
8. It is urged by the learned counsel for the Appellant that the
PW2 Ranbir Singh admitted in his cross-examination that the
deceased was not wearing a helmet at the time of the accident.
Thus, argues the learned counsel, the deceased has contributed
to the accident. PW2 has explained the manner of the accident.
The deceased and PW2 were on the extreme left side of the
road when the offending vehicle came from the opposite
direction and dashed against the scooter. Simply because the
deceased was not wearing a helmet and violated the terms of
the Motor Vehicles Act, it cannot be said that he contributed to
the accident. The contention is devoid of any merit and is
rejected.
9. As far as non-joinder of Vijay Kumar, who is claimed to be the
subsequent purchaser from the Seventh Respondent, is
concerned, no evidence was produced by the Appellant except
that he got the possession of the vehicle from the police when
he was the owner of the vehicle. Of course, the Seventh
Respondent vide a written statement claimed that he had
transferred the same in favour of one Rajesh Kumar. The
Seventh Respndent who was the Respondent No.2 before the
Claims Tribunal did not produce any evidence in support of his
defence and was ordered to be proceeded ex parte. Otherwise
also, even if he had transferred and given physical delivery of
the vehicle to any third person, the Seventh Respondent, or for
that matter, the Appellant could avail appropriate remedy
against him on proof of such facts. The Claim Petition, in the
circumstances, cannot be said to be bad for non-joinder of
Vijay Kumar.
10. Para 34 of the impugned judgment reveals that there is a clerical
mistake in computing the loss of dependency. The deceased
income was taken to be `2,905/-. On deducting 1/4th towards
his personal living expenses, the loss of dependency would
come to `2,179/-. On applying appropriate multiplier, the loss
of dependency would come to `4,44,516/- (`2179 X12 X17).
11. The Claims Tribunal granted a compensation of `1,50,000/- on
account of loss of love and affection. The loss of love and
affection cannot be measured in terms of money. The Supreme
Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425
and in Baby Radhika Gupta v. Oriental Insurance Company
Limited (2009) 17 SCC 627 granted only `25,000/- (in total to
all the claimants) under the head of loss of love and affection. I
would follow the same. The compensation under the head of
loss of love and affection is reduced from `1,50,000/- to
`25,000/-. On adding `10,000/- each towards loss of
consortium, funeral expenses and loss to estate, the overall
compensation comes to `4,99,516/-.
12. The compensation is re-computed as under:
S.No. Head of Granted by Granted by
Compensation the Claims this Court
Tribunal
1. Loss of Dependency `5,61,000/- `4,44,516/-
2. Loss of Love and `1,50,000/- `25,000/-
Affection
3. Funeral Expenses `10,000/- `10,000/-
4. Loss to Estate `10,000/- `10,000/-
5. Loss of Consortium `10,000/- `10,000/-
Total `7,41,000/- `4,99,516/-R
13. The compensation thus stands reduced from `7,41,000/- to
`4,99,516/- which shall be apportioned amongst the
Respondents No.1 to 5 in the same percentage as directed by
the Claims Tribunal. The Appellant and the Seventh
Respondent are jointly and severally liable to pay the
compensation. The amount of compensation has already been
deposited by the Appellant India Lease Development Ltd.
which shall be released to the Respondents No.1 to 5.
14. The excess sum of `2,41,484/- along with proportionate interest
and the interest accrued, if any, during the pendency of the
Appeal will be refunded to the Appellant India Lease
Development Ltd.
15. The Appellant shall be at liberty to take appropriate proceedings
against the Seventh Respondent as advised.
16. The Appeal is allowed in above terms.
17. The statutory amount shall also be returned to the Appellant
Insurance Company.
(G.P. MITTAL)
JUDGE
MARCH 05, 2012
pst
