Punjab-Haryana High Court
Additional Commissioner ... vs Ram Chander And Ors on 24 February, 2021
FAO No.1109 of 2018 (O&M)
and other connected cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.1109 of 2018 (O&M)
and other connected cases
Date of Order: 24 .02.2021
Additional Commissioner Technical-cum-Chief
Executive Officer, Municipal Corporation, Amritsar.
..Appellant
Versus
Ram Chander and others ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Gian Chand Garg, Advocate
for the appellant.
Mr. Vinod Gupta, Advocate,
for respondent no.2 (in FAO No.1109 and 1112 of 2018)
for respondent no.3 (in FAO No.1388 of 2018)
Mr. Manoj Pundir, Advocate,
for respondent no.3 (in FAO No.1109 and 1112 of 2018)
for respondent no.4 (in FAO No.1388 of 2018).
ANIL KSHETARPAL, J.
By this order, FAO No.1109, 1112 and 1388 of 2018, filed by
the Additional Commissioner, Municipal Corporation, Amritsar, shall stand
disposed of.
Some facts are required to be noticed.
In an accident which is alleged to have taken place on
28.10.2016, 3 precious lives were lost. Late Smt. Bhanwanti alongwith her
two daughters met with an unfortunate end in a motor vehicle accident
allegedly caused by a bus bearing registration plate No.PB-02-CC-6390.
Three claim petitions were filed, out of which two were filed by the father
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of two deceased daughters respectively and one by the husband of late Smt.
Bhanwanti alongwith another daughter. In the claim petition, three
respondents-Additional Commissioner Technical-cum-Chief Executive
Officer, Amritsar, Municipal Corporation, Amritsar, Kanwardeep Singh
(spelled in the MACT award as Kawrandeep Singh), driver of the offending
vehicle and the New India Assurance Company Limited, respectively, were
impleaded as parties. The Municipal Corporation, Amritsar, filed its written
statement by asserting that the claim petition is bad for non-joinder of
necessary parties. Kanwardeep Singh, respondent no.2-driver of the
offending vehicle was proceeded ex-parte. The Motor Accident Claims
Tribunal, Amritsar (hereinafter referred to as ' the Tribunal') framed issue
no.3 with respect to non-joinder of the necessary parties. Mr. Kanwaljit
Singh, Junior Engineer, an official of the Municipal Corporation, Amritsar,
appeared in evidence and reiterated that the petition is bad for non-joinder
of necessary parties. It was stated that the Municipal Corporation, Amritsar,
had engaged M/s Sri Anantha Padmanabha Transit Private Ltd., to run the
State Transport Service Pvt. Ltd. It was stated that the driver of the bus was
also employed by the aforesaid contracting company and was under its
control.
Unfortunately, the Tribunal after having framed a specific issue
No.3, did not go deep into it and decided the claim petition by just
observing that the registered owner of the offending vehicle is the
Municipal Corporation, Amritsar and the vehicle is insured with the
Insurance Company.
That is how these three appeals have been filed.
In the appeals, M/s Sri Anantha Padmanabha Transit Private
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Ltd. was added as respondent no.3. The appellant also filed an application
for permission to lead additional evidence so as to produce on record the
written contract entered into between the Municipal Corporation, Amritsar
and the transport operator.
It may be noted here that the learned counsel representing the
appellant has made a statement on 17.12.2020 that he does not wish to press
these appeals against Ram Chander-respondent no.1. Thus, the service of
notice of the appeals to Ram Chander was dispensed with.
This Bench has heard learned counsel for the parties at length
and with their able assistance perused the paper book.
Learned counsel representing the appellant while referring to
Section 2(30) of the Motor Vehicles Act, 1988 (hereinafter referred to as
'the 1988 Act') submits that the word 'owner' includes the person, who has
taken control of the vehicle on an agreement of lease. He, hence, contends
that in view of the contract entered into between the Municipal Corporation,
Amritsar and respondent no.3-M/s Sri Anantha Padmanabha Transit Private
Ltd., the vehicle was on lease with respondent no.3 and therefore, the
appellant, who is the registered owner, could not be fastened with the
liability to pay to the Insurance Company. He, in support of his arguments,
relies upon the judgments passed in Purnya Kala Devi vs. State of assam
and another, (2014) 14 SCC, 142 and HDFC Bank Ltd. vs. Kumari
Reshma and others, (2015) 3 SCC, 679.
Per contra, learned counsels, appearing for respondent No.2-
Insurance Company and respondent no.3-M/s Sri Anantha Padmanabha
Transit Private Ltd., have submitted that the Municipal Corporation is the
registered owner of the offending vehicle and therefore, the various awards
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passed by the Tribunal should be sustained.
In the considered view of this court, an interesting question
with regard to the interpretation of Section 2(30) defining the word "owner'
arises for determination. Hence, it will be appropriate to carefully notice the
language used by the Legislature. Section 2(30) is extracted as under:-
Section 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;
On a plain reading of the definition of 'owner' under Section 2
(30), it is apparent that the legislature has emphasized on a person in
possession and control over the vehicle is also included in the definition of
the owner. Now let's dissect the definition. The first part deals with a owner
who is a minor. It is provided that in such a case, the guardian of such
minor will be treated as the owner. Now, let's discuss the second part. In
the second part, if the motor vehicle is the subject matter of a hire-purchase
agreement or an agreement of lease or an agreement of hypothecation, then
the person in possession and control of the vehicle is treated as the owner
for the purposes of the Act. Thus, on a plain reading of the definition, it can
be discerned that the Act of 1988 not only recognizes a registered owner but
also includes a guardian of a minor owner, a person who has either taken the
vehicle on hire-purchase or lease or by hypothecation.
Still further, this aspect has already been examined by the
Supreme Court in more than one judgments. In National Insurance
Company vs. Deepa Devi and others, (2008) 1 SCC, 414, the motorcar
along with its driver was requisitioned by the District Collector for election
duty. It was held that in the given situation, if the statutory definition
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contained in the 1988 Act, cannot be given effect to in its letter and spirit,
then same should be understood from a logical point of view. The Court
held that the Collector is liable, although, the registered owner was someone
else. Even if the driver was employed by the registered owner, still the
possession and the control of the vehicle was with the District Collector,
when the accident took place, therefore, the registered owner cannot be held
liable.
Similarly, in Rajasthan State Road Transport Corporation, vs.
Kailash Nath Kothari & Others, (1997) 7 SCC 481, the Corporation took a
plea that the vehicle has taken on hire by it and therefore, not liable to pay
compensation. The Supreme Court rejected the aforesaid contention. There
is another judgment in Purnya Kala Devi's case (supra). In this case, the
State of Assam had requisitioned the vehicle. After discussing the
definition of the term 'owner' under the Motor Vehicles Act, 1939, its
subsequent amendment by the Assam Act and Section 2(30) of the 1988
Act, the Court held that the term owner includes not only the registered
owner but also a person, who is in control and possession of the vehicle.
Similarly, in HDFC Bank's case (supra), the 3 Judge Bench of the Supreme
Court, after examining the entire case law, held that the person who has
taken the vehicle on hire-purchase is held liable being its owner.
Again, the stress was on the fact that who is in control and
possession of the vehicle in question.
Keeping in view the aforesaid facts, it is apparent that the
Tribunal has miserably failed to examine and decide issue no.3 in the
correct perspective. Hence, it is considered appropriate to remit the matter
back to the Tribunal for re-decision. It may be noted here that the learned
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counsel for respondent no.3-M/s Sri Anantha Padmanabha Transit Private
Ltd.,, who has been subsequently added as a party in the appeal, has
contended that respondent no.3 should be granted an opportunity to prove
that the driver was in possession of a valid licence and the company had
taken necessary precautions while engaging the driver and therefore, there
was no violation of the terms of the insurance policy.
Since, this court is remitting the matter back to the Tribunal
after impleading respondent no.3 as a party and the impugned awards were
passed without hearing it, therefore, the company is required to be given an
opportunity to prove its stand. The award with respect to the quantum of
compensation which stands paid to the claimants shall be treated as final
and the matter is being remitted only for a limited purpose of determining
the question that who is the owner within the meaning of Section 2(30) of
the 1988 Act and whether the amount of compensation paid by the
Insurance Company is liable to be recovered from such owner on account of
any violation of the terms of insurance policy or not?
With these observations, these three appeals are allowed. The
parties through their counsels are directed to appear before the Tribunal, on
25.03.2021.
It has been noticed that the driver of the offending vehicle is
not represented in the appeal, therefore, the Tribunal shall issue a notice to
the driver of the offending vehicle.
24th February, 2021 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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