1. These two appeals under Section 110-D of the Motor Vehicles Act, 1939, (hereinafter referred to as the Act) are from the common judgment of the Motor Vehicles Claims Tribunal, Bangalore (hereinafter referred to as the Tribunal).
2. It is common ground that an automobile accident which occurred on 25-3-1966 at about 9-15 a. m. was caused by the lorry bearing No. MYD. 1998, that Narasimhaiah. Respondent-1 in both these appeals, was driving that lorry then, and that as a result of that accident, one Chinnaiah died and his wife Ariyamma sustained injuries.
3. The legal heirs of Chinniah including Ariyamma, filed before the Tribunal a petition (in Misc. Case No. 439 of 1966) under Section 110-A of the Act claiming a compensation of Rupees 10,000/- for the death of Chinnaiah, Ariyamma filed a separate petition (in Misc. Case No. 438 of 1966) before the same Tribunal under Section 110-A of the Act claiming a compensation of Es. 3,000/- for her personal injuries. In both these petitions, it was alleged that the accident was due to rash and negligent driving of that lorry by respon-dent-1. K. Krishnappa and Muniswamappa were impleaded as respondents 2 and 3 respectively, as the owner of that lorry. But the insurer of that vehicle was not impleaded as a respondent in either of those petitions.
4. Respondent-2 filed objections to those petitions pleading that he had nothing to do with that vehicle at the time of the accident, that he was not the owner thereof, that he was not a necessary party and that those petitions were not maintainable as against him. Respondents-1 and 3 remained ex parte.
5. The Tribunal tried those petitions together. It framed four issues, two of which were as follows:--
(i) Whether the petitioners prove that the accident was a result of rash and negligent driving of the lorry in question ?
(ii) Whether respondent-2 was the owner of the vehicle on the date of the accident
6. The Tribunal held that the accident was the result of rash and negligent driving of the lorry by res-pondent-1. Narasimhaiya. On issue No. 2, the Tribunal held that respondent-3, Muniswamappa, was not the owner of the lorry on the date of the accident as he had sold it to respondent-2 Krishnappa, on 4-9-1965, and that respondent-2 Krishnappa, was also not the owner thereof on the date of the accident as he had entered into a hire purchase agreement with one Sampathrai Bothra which agreement had been endorsed in the registration certificate of the vehicle on 4-9-1965.
According to the Tribunal, the hirer, Sampathrai Bothra, should be regarded as the owner of that vehicle under Section 2 (19) of the Act. In that view, the Tribunal held that the only person who would be liable to pay damages was respondent-1, the driver of the vehicle, and that respondents-2 and 3 were not vicariously liable to pay damages as they were not the owners of that vehicle. The Tribunal awarded a compensation of Rs. 2,500 to Ariyamma, the petitioner in Misc. Case No. 438 of 1966 and a compensation of Rs. 5.000 to the petitioners in Misc. Case No. 439 of 1960 who were the legal heirs of deceased Chinnaiah.
7. The petitioners in both these petitions have preferred these appeals. Their main grievance in these appeals, is that the Tribunal should have awarded compensation as against Respondent-2 Krishnappa, also. Mr. R. V. Vasanth Kumar, learned counsel for the appellants, contended that the Tribunal erred in holding that respondent-2, Krishnappa, was not the owner of the vehicle and that the hirer under hire purchase agreement of the vehicle, was the owner thereof, on the date of the accident.
8. In reaching the conclusion that respondent-2, Krishnappa, was not the owner of the vehicle and that the hirer, Sampathrai Bothra, was the owner thereof, the Tribunal has depended entirely on the definition of the word 'owner' in Section 2 (19) of the Act, which reads:--
'2. In this Act, unless there is any-thing repugnant in the subject or context,
(19) 'Owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which in the subject of a hire purchase agreement the person in possession of the vehicle under that agreement.'
9. Mr. Vasanth Kumar urged that the above definition of the word 'owner' is not exhaustive and that that definition is only for the purpose of the Act and cannot have any application in determining the liability for compensation under the law of torts or under the Fatal Accidents Act.
10. In support of his contention Mr. Vasanth Kumar relied on the decision in Umashanker v. Rex, : AIR1950All234 in which Agarwala J., observed thus at page 236:
'This definition (under Section 2 (19)) is really not a definition at all and the use to the word 'means' is inappropriate. It merely indicates what persons are included within the meaning of the expression 'owner'. Two persons who could not be otherwise in the ordinary use of the word, 'owners' are said to be included within the meaning of that expression. These two persons are: (1) in the case of vehicle being owned by a minor, the guardian of such minor; and (2) in the case of the vehicle being the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement. The definition, therefore does not exhaustively define the word, 'owner'. The word 'owner', must therefore, be taken to mean, what it ordinarily means, namely, a person in whom the proprietary title vests.'
Mr. Vasanth Kumar next referred to the following observations of Niyogi, J., in In re: Bhagwant Gopal, AIR 1943 Nag 22 at pages 22 and 23:--
'This definition (under Section 2 (19)) is very unsatisfactory and unhelpful for the solution of the question arising in this case. It does not however appear that the Legislature by inserting this definition in the Act of 1939 intend to use the word 'owner' occurring in the various sections of the Act in any sense other than the sense in which it is ordinarily understood. Ownership as opposed to possession implies title with the accidental right of transfer. A person may be in possession and control of vehicle nevertheless he might not have any title or right to transfer it. The fact that the Legislature chose to define the meaning of 'owner' in two particular cases, namely, (i) when a vehicle is owned by a minor, and (ii) when it is the subject of a hire purchase agreement, tends to show that it did not intend to use the word 'owner' in a special sense in the Motor Vehicles Act. In any case unless there is anything in the Act itself to indicate that the word 'owner' is used in a technical sense other than its popular sense it cannot be interpreted in a manner to include a person other than an owner.'
11. In V. Muthuswami Gounder v. Thulasi Ammal, 1970 Acc CJ 18 (Mad). Natesan, J., referred to the observations of Agarwal, J., in : AIR1950All234 and said at page 20 of the re-port thus:--
'The definition of 'owner' in Section 2 (19) of the Act is not complete definition in fact, it cannot be considered to be a definition, as it merely describes as owner two classes of persons who would not, under the ordinary use of the word 'owner' be said to be owners ..... The sub-section does not exclude persons who are otherwise owners from the coverage of the expression, it being not a exhaustive definition. A person in whom title to the vehicle vests and who has legal right to possession of the vehicle, does not cease to be the owner even for the purpose of the Act.'
The above decisions supported the contention of Mr. Vasanth Kumar that the definition of the word 'owner' in Section 2 (19) of the Act, is not an exhaustive definition and does not exclude a person who according to the ordinary meaning of that word, is the owner and in whom title to the vehicle vests.
12. But Mr. S. Siddappa, learned counsel for respondent-2, contended that the use of the word 'means' in the definition in Section 2 (19), shows that that definition is not an inclusive definition but an exhaustive, one.
13. It is true that generally the word 'means' is employed in a definition where the Legislature intended such definition to be exhaustive and that where the Legislature intends such definition to be inclusive the word generally employed is 'includes'. But the opening part of Section 2 itself states that the definition contained therein are applicable unless there is anything repugnant in the subject or context in which the words as defined are used. Thus where any word or expression defined in Section 2 occur in any part of the Act, it is permissible to depart from the meaning given to it in that definition if such meaning is repugnant in the subject or context.
Assuming for the sake of argument that the definition of the word 'owner' contained in Section 2 (19) is exhaustive, there is no impediment to depart from the meaning given to it In that definition in construing any Section in the Act in which it occurs if such meaning is repugnant in the subject or context. Moreover, the definitions of words and expressions in Section 2 of the Act, are only for the purpose of the Act and such definitions would not be relevant for construing such words or expressions when they occur outside that enactment.
14. The liability of the owner of a vehicle for damages for any injury caused by the negligence of his driver, arises not under the Act, but under the common law of torts and under the Fatal Accidents Act. As pointed out by the Madras High Court in Palani Ammal v. Safe Service Ltd., 1966 Acc CJ 19 (Mad), the object of Sections 110-A to 110-F of the Act, is to provide cheaper and speedier remedy for recovery of compensation for injuries and death caused by the use of motor vehicles and those Sections do not create any new right or even a new remedy. The effect of those provisions is to create a new forum thus taking away the jurisdiction of the ordinary Civil Courts. The forum is changed and the period of limitation for an action for damages has also been curtailed. But these two are matters of procedure. The substantive law as to what gives rise to liability for damages and who are liable for damages, remains unaltered by these provisions of the Act. Hence, definition contained in Section 2 (19) of the Act, is not relevant for determining as to who was the owner of the motor vehicle or as to who was the master of the driver thereof at the time of an accident, for the purpose of liability under the Fatal Accidents Act or under the Law of Torts.
15. Mr. Vasanth Kumar submitted that when the owner of a motor vehicle enters into a hire purchase agreement with an intending purchaser of that vehicle, the former does not cease to be such owner until the intending purchaser exercises his option under that agreement and purchases the vehicle, and that until then, the former, and not the latter, is the owner of the vehicle.
16. Hire purchase agreement, as is generally understood, is an agreement to hire goods with an option to purchase i.e., it gives the hirer an option to purchase the goods whether by payment of a lump sum amount or by the completion of the payment of an amount in instalments.
17. In K. L. Johar and Co. v. Dy. Commercial Tax Officer, Coimba-tore, : AIR1965SC1082 . the Supreme Court explained that a hire purchase agreement has two elements: (i) element of bailment, and (ii) element of sale, in the sense that it contemplates an eventual sale and that the element of sale fructifies when the option is exercised by the intending purchaser after fulfilling all the terms of the agreement are satisfied and the option is exercised, a sale takes place of the goods which till then had been hired. Where, however, such option is not exercised or cannot be exercised because of the inability of the intending purchaser to fulfil the terms of the agreement, there is no sale at all.
It was also pointed out by the Supreme Court that the property in the goods will not pass to the intending purchaser at the time of the hire purchase agreement and that till the terms of such agreement are fulfilled and the option to purchase is exercised, the in-tending purchaser has no right in the goods except that of hirer.
18. In view of the above legal position, it is clear that under the hire purchase agreement between respon-dent-2, Krishnappa, and Sempathrat Bothra, the latter would not become the owner of that vehicle until he fulfilled the terms of such agreement and exercised his option to purchase that vehicle and that until then respondent-2 Krishnappa, continued to be the owner of the vehicle.
19. The view taken by the Tribunal that respondent-2, Krishnappa, was not the owner of the vehicle on the date of the accident, merely because a hire purchase agreement was entered into on 4-9-1965 between him and Sampathraj Bothra in respect of that vehicle, is clearly unsustainable. The Tribunal has not investigated whether on the date of the accident Sampathraj Bothra had fulfilled the terms of the hire purchase agreement and exercised his option to purchase the vehicle and thereby had become the owner thereof. Hence, it is necessary that the Tribunal should ascertain whether on the date of the accident, respondent-2, Krishnappa continued to be the owner of the vehicle or whether such ownership had passed to Sampathraj Bothra under the hire purchase agreement. If respondent-2, Krishnappa, continued to be the owner of the vehicle on the date of the accident, further questions would arise as to whether respondent-1, the driver of the vehicle, was employed by respondent-2, Krishnappa, or by the hirer, Sampathraj Bothra, and if he was employed by respondent-2 Krishnappa, whether he was working under the control of respondent-2 Krishnappa or under the control of the hirer. Sampathraj Bothra, when, the accident took place.
20. As the Tribunal proceeded on an erroneous view of law as to who was the owner of the vehicle on the date of the accident and has not investigated the Question whether at the time of the accident the hirer, Sampathraj Bothra, had become the owner of the vehicle and whether respondent-1 was the servant of Respondent 2 Krishnappa or of hirer, Sampathraj Bothra, it becomes necessary to remand the case to the Tribunal to investigate these questions and to decide these petitions afresh.
Mr. Vasanth Kumar submitted that the appellant should be permitted to implead Sampathraj Bothra and the insurer of the vehicle as additional respondents to the petitions. As we are remanding these cases, it is not necessary for us to express any opinion on this request of Mr. Vasanth Kumar. If the appellants (petitioners) make applications before the Tribunal for impleading the insurer of the vehicle and Sampathraj Bothra as additional respondents, it will be for the Tribunal to consider and decide such applications.
In the result, we set aside the common Judgment of the Tribunal and remand the cases to the Tribunal with a direction to dispose of the petitions afresh in the light of our judgment and in accordance with law.
In the circumstances, of these appeals, we direct the parties to bear their own costs.
Court-fee paid by the appellants on the memoranda of appeals, shall be refunded to them.