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Mohamed Abdul Waheed Mohomed Nakim Khan Vs. Shyam Behari Rameshwar Kalvar and Others - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 88 of 1980
Judge
Reported in[1986]59CompCas284(Bom)
ActsSale of Goods Act, 1930 - Sections 20; Motor Vehicles Act - Sections 31
AppellantMohamed Abdul Waheed Mohomed Nakim Khan
RespondentShyam Behari Rameshwar Kalvar and Others
Excerpt:
.....vehicle in his favour - vehicle proved to be in his possession - nothing to prove that on sale of vehicle insurance company agreed to accept appellant as new policy holder - no insurance policy subsisted at relevant time in favour of appellant - neither vendor of vehicle nor insurance company liable to pay compensation - held, challenge dismissed. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed..........deposition that he had sold the said lorry on december 14, 1974, to opposite party no. 2a, mohamed abdul waheed. according to him, he had also delivered possession of the lorry to abdul waheed khan and had also handed over the t.t. forms duly signed by him for getting the lorry transferred in his name in the rto records. he also stated that he had obtained the delivery note from mohamed abdul waheed khan, which is duly signed by him. according to him, the lorry was sold for rs. 30,000. to indicate that he had in fact received the said amount, he has produced the daily account books, income-tax assessment order along with the balance-sheet. in the cross-examination, he stated that the driver, who committed the accident on february 13, 1975, was neither known to him nor was his servant,.....
Judgment:

Dharmadhikari, J.

1. This is an appeal filed by original opposite party No. 2A against the award passed by the Motor Accidents Claims Tribunal, Greater Bombay, dated July 19, 1979, directing him to pay to the legal representative of the deceased, Lalchand Rameshwar Kalwar, a sum of Rs. 30,500 by way of just compensation together with interest at 6% per annum as well as costs of the proceedings.

2. It is an admitted position that the deceased, Lalchand Rameshwar Kalvar, died in a motor accident which took place on February 13, 1975, at about 11.30 a.m. near Keshram Gokulchand Godown, Kolsa Bunder, Darukhana, Bombay-10. The legal representative of the deceased filed an application before the Accidents Claims Tribunal Claiming compensation to the tune of Rs. 85,000. It is not necessary to make a detailed reference to the facts of the case because it is not disputed before us that the deceased sustained injuries in the motor accident on account of negligence of the driver of the vehicle bearing No. MRF 9509. It is also not disputed that the deceased died as a result of the injuries sustained in the aforesaid accident. The only dispute raised in appeal relates to the liability of opposite party No. 2A, the appellant, to pay compensation awarded by the Accidents Claims Tribunal.

3. Shri Nilkanath, learned counsel appearing for the appellant opposite party No. 2A, contended before us that the learned members of the Tribunal committed an error in recording a finding that the appellant was the owner of the vehicle on the date of the accident. The learned member was further wrong in coming to the conclusion that opposite party No. 2 was not the owner and, therefore, the insurance company was not the owner and, therefore, the insurance company was not liable to pay the amount of compensation, since the insurance policy was not in force on the date of the accident. On the other hand, it is contended by Shri Kudralli, learned counsel appearing for the insurance company, that the finding of fact recorded by the learned members of the Tribunal is perfectly legal and is borne out by the evidence on record. To appreciate the contentions raised before us, we have gone through the entire evidence on record, both oral and documentary. Chaitram Gupta, who was the initial owner of the lorry, has stated in his deposition that he had sold the said lorry on December 14, 1974, to opposite party No. 2A, Mohamed Abdul Waheed. According to him, he had also delivered possession of the lorry to Abdul Waheed Khan and had also handed over the T.T. forms duly signed by him for getting the lorry transferred in his name in the RTO records. He also stated that he had obtained the delivery note from Mohamed Abdul Waheed Khan, which is duly signed by him. According to him, the lorry was sold for Rs. 30,000. To indicate that he had in fact received the said amount, he has produced the daily account books, income-tax assessment order along with the balance-sheet. In the cross-examination, he stated that the driver, who committed the accident on February 13, 1975, was neither known to him nor was his servant, nor was the lorry run on that day for his use or benefit. According to him, he came to know about the accident on the next day and he informed the police about it. Before the police, he placed the true facts and this was the reason why the police handed over the vehicle to opposite party No. 2A. It was suggested to him in the cross-examination that he had only received part consideration of Rs. 10,000 from opposite party No. 2A and that the balance of Rs. 20,500 was agreed to be received by him later in instalments from opposite party No. 2A had signed on blank papers. These suggestions were denied by the witness. It was also suggested that he knew that particular forms are required to be filled in and submitted to the RTO on transfer of the vehicle and this was not done by him. The witness admitted that he knew the procedure. However, according to him, he had handed over all the forms to opposite party No. 2A. Certain contradictions from his earlier statement made before this police were brought on record. It appears that before the police, the witness had made a statement that he had received the first instalments of Rs. 10,000 from Mohamed Abdul Waheed Khan and had not received the balance of the price.

4. Mohamed Abdul Waheed Khan was also examined as a witness. According to this witness, he purchased the Jorry on August 1, 1976. The sale price was agreed to be Rs. 30,500, and he had paid a part of the amount, viz., Rs. 10,000, to opposite party No. 2 about 5/6 months prior to the date of the accident. He also stated that the delivery of the lorry was not given to him on that day. According to this witness, on the date of the accident, opposite party No. 2 was the owner. In the cross-examination, certain inconsistencies and contradictions from his written statement were brought on record and it appears from it that this was not his case either in the written statement or at an earlier stage. An admission in a letter written by him was also brought to his notice. From his evidence, it appears that it was his case that after payment that the profits which he would be making by plying the lorry would be adjusted towards the balance of the sale price. This was not his case in the written statement. Certain documents which bear his signatures were also brought to his notice and he admitted the signatures, though he stated that he made these signatures on blanks papers. It appears from the evidence of Gunaji Sawant, Sub-Inspector of police, that Mohamed Abdul Waheed Khan had admitted before him, when his statement was records on February 13, 1975, that he had purchased the motor lorry one month earlier from Chaitram Gupta. He also stated before the police that the lorry was in his possession at the time when his possession at the time when his statement was recorded. He also stated that a driver was employed by him. The learned members of the Tribunal, after appreciating all the evidence on record, rightly came to the conclusion that the evidence of opposite party No. 2A is untrustworthy, as he chose to accept the evidence of opposite party No. 2, which got substantial corroboration from the contemporaneous records as well as the statement made before the police immediately after the accident. We generally agree with the appreciation of the evidence as well as the findings recorded by the learned members of the Tribunal in that behalf.Even if the evidence of Mohamed Abdul Waheed Khan, opposite party No. 2A, is accepted at its face value, it is quite clear to us that he had purchased the lorry from opposite party No. 2 for the sale price of Rs. 30,500. On his own admission, he had paid a part of the amount, viz., Rs. 10,000, to opposite party No. 2 about five or six months prior to the date of the accident. This position is admitted by the witness himself. He has raised a dispute about the delivery of the lorry and has contended that the possession was not delivered to him. On the contrary, it was agreed that the lorry should be plied by him and the money earned would be a adjusted towards the balance of the price. It is not possible for us to accept this evidence of Mohamed Abdul Waheed Khan for more than one reason. Apart from the delivery form produced by opposite party No. 2, it appears that the driver, who was driving the vehicle at the relevant time was engaged by party No. 2A. In the letter marked as exhibit 'G' addressed to the advocate of the insurance company, he has admitted that the possession of the lorry was delivered to him and party No. 2 was not the owner of the vehicle when his statement was recorded on February 13, 1975, i.e., immediately after the accident. In view of these admissions which get substantial corroboration in the documentary evidence on record, viz., exhibits C,D,E, and F, we are satisfied that the sale transaction took place between opposite party No. 2 and opposite party No. 2A on December 14, 1974, and in pursuance of this transaction, the possession of the vehicle was handed over to Mohamed Abdul Waheed Khan on December 14, 1974, itself. It is clear from the evidence that the driver who drove the vehicle on the date of the incident, i.e., February 13, 1975, was employed by Mohamed Abdul Waheed Khan. Whether the whole amount of Rs. 10,000 was only paid will not make any difference, so far as the transfer of the vehicle is concerned, in view of the provisions of s. 20 of the sale of Good Act, 1930. So far as this court is concerned, it is by now well settled that the sale or transfer of a motor vehicle is governed by the sale of Goods Act, 1930, and s. 31 of the Motor Vehicles Act comes into operation after such transfer of the vehicle. This is what the Division Bench of this court in Kishan Pandurang Kagde v. Baldev Singh Gian Singh [1977] 77 Mah LJ 656 has held. The Division Bench observed (headnote) :

'There is no provision in the Motor Vehicles Act which deals with the transfer of ownership of the motor vehicle, which like any movable property is governed by the Sale of Goods Act. The Provision in section 31, Motor Vehicles Act, is only to the effect that after change of ownership corresponding change in registration certificate should be recorded, that is in place of previous owner, name of new owner should be substituted. Section 31 comes into operation after change of ownership. Transfer of registration follows transfer of ownership and not vice versa. Transfer of ownership does not flow from and does not depend on transfer of registration. The transfer of ownership takes place from date of sale and not from date on which name of transferee is recorded.'

5. A similar view is taken by another Division Bench of this court in Smt. Gulab Bai Damodar Tapse v. Peter K. Sunder [1975] 77 Bom LR 38: [1975] ACJ 100 (Bom). In that case, the Division Bench has further held that the insurance policy will lapse upon the transfer of the motor vehicle unless the insurance company agrees to accept the transferee as the insured person in relation to the vehicle. Such a view is also taken by the Karnataka High Court in United India Fire and General Insurance Co. Ltd. v. Chennamma , where the view taken by this court in Gulab Bai's case [1975] 77 Bom LR 38: 1975 ACJ 100 governed by the provisions of the Sale of Goods Act, 1930, then obviously section 20 of the said Act will apply to such a transaction. it lays down that where there is an unconditional contract for the sale of specific goods in deliverable state, the property in the goods passes to the buyer when an offer is made and it is immaterial whether the time of the payment of the price or the time of delivery of goods, or both, is postponed. To say the least, no general rule can be laid down as to when transfer of property takes place. Obviously, it must depend upon the facts and circumstances of each case. After all, ownership depends upon a bundle of facts. As to who was the owner of the vehicle on the date of the accident must obviously depend on the facts and circumstances of each case. In the case on hand, on the basis of the evidence on records, a finding can safely be recorded that the transfer of the vehicle took place on December 14, 1974, when the possession of the vehicle was given to opposite party No. 2A, who employed his own driver to run the vehicle and also used it for his own benefit. It is the case of opposite party No. 2, viz., Chaitram Gupta, that he was paid the whole amount on that day, whereas, according to party No. 2A, Mohamed Abdul Waheed Khan, only the first instalments of Rs. 10,000 was paid. Even if it is assumed that only a part payment was made, still the vehicle stood transferred in favour of Mohammed Abdul Waheed Khan on December 14, 1974 itself for all practical purposes. The possession of the vehicle was delivered to him on that day. A delivery memo was executed by him in that behalf. He was running the vehicle for his own benefit by employing his own driver. It appears from the records that opposite party No. 2, Gupta, executed all the relevant documents by signing necessary forms and, therefore, he ceased to be its owner on that day itself. Therefore, taking any view of the matter, it will have to be held that from December 14, 1974, opposite party No. 2A became the owner of the vehicle. In this view of the matter, in our view, the trial court was perfectly justified in coming to the conclusion that the sale of the vehicle took place on December 14, 1974, and from that date, opposite party No. 2; Chaitram Gupta, ceased to be the owner of the vehicle. Once this finding is recorded, then obviously the insurance company could not be held liable for the payment of compensation. As held by this court in Gulab Bai's case [1975] 77 Bom LR 38: [1975] ACJ 100 , as soon as a vehicle is transferred, the insurance policy in relation to the vehicle lapses, unless the insurance company agrees to accept the transferee as the insured person in relation to the vehicle. In the present case, there is no evidence to show that on the sale of the vehicle. the insurance company ever agreed to accept the opposite party No. 2A, Mohamed Abdul Waheed Khan, as the insured person in relation to the vehicle. There was no renewal of contract of indemnity in favour of opposite party No. 2A, Mohamed Abdul Waheed Khan. Therefore, in our opinion, the learned members of the Tribunal was wholly justified in holding that neither opposite party No. 2, Chaitram Gupta, nor the insurance company were liable to pay any compensation to the legal representative of the deceased.

6. The quantum of Compensation is not challenge in this appeal. To say the least the compensation granted is less than reasonable. However, since no appeal has been filed by the claimants and they have chosen to accept the compensation awarded. no interference is called for in this appeal, so far as the quantum of compensation is concerned. However, in our view, this is a fit case where the insurance company should pay an amount of Rs. 15,000 to the representative of the deceased by way of ex gratia payment. We are inclined to make such a recommendation since we are prima facie of the view that the compensation awarded by the Tribunal is less than reasonable. We are not in a position to enhance the said compensation since the claimants have not chosen to file any appeal. We hope that the insurance company will consider this recommendation for the payment of Rs. 15,000 to the legal representative of the deceased as ex gratia payment as and when the said claimants come forward to claim this amount. If the amount is claimed and as a consequence of the claim made, the amount of Rs. 15,000 is deposited by the insurance company, then in that case the Tribunal will be at liberty to make appropriate orders regarding apportionment and distribution of the said amount. Since we are making a recommendation to the insurance company to pay this amount by way of ex gratia payment, obviously, opposite party No. 2A, Mohamed Abdul Waheed Khan, will not be entitled to claim any remission so far as his liability under the order passed by the Motor Accident Claims Tribunal is concerned.

7. In the result, therefore, the appeal fails and is dismissed. However, since we have made a recommendation to the insurance company for making an ex gratia payment and since the claimant has not appeared before us, there will be no orders as to costs in this appeal. We find from the records that the legal representative had filed an application through a next friend. He is residing at Howrah in Bengal and is not a resident of this State. Further, nobody has appeared before us on his behalf. Therefore, we direct the Registrar of the Motor Accidents Claims Tribunal, Gr. Bombay, to inform the legal representative of the deceased about this decision in appeal, as well as about the recommendation made by this court to the insurance company for making an ex gratia payment.


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