Smt. P. Bhagya Lakshmi vs R. Kavitha And 4 Others

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