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Mohd. Ramjan Vs. Smt. Sharifanbai - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal Nos. 38, 40 and 140 of 1979
Judge
Reported inAIR1983MP34
ActsMotor Vehicles, 1939 - Sections 110B
AppellantMohd. Ramjan
RespondentSmt. Sharifanbai
Appellant AdvocateV.N. Maltare, Adv.
Respondent AdvocateB.K. Samdani, ;D.V. Trivedi and ;A.K. Chitale, Advs.
DispositionAppeal dismissed
Cases ReferredIn Padma Devi v. Gurbakshsingh
Excerpt:
- - instead he chose to deny that the accident was caused by the scooter which he was driving that explanation is held to be not reliable. gyanchand deposed that he examined sharifanbai on 24-3-1977. she complained of pain in her left arm. ramzan, thus, there is no reason to interfere with the award passed by the tribunal, 29. as a result of the discussion aforesaid these appeals fail and are dismissed......is excessive and deserves to be suitably reduced.7. the learned counsel for the registered owner banwarilal contended that in the circumstances of the case the tribunal committed an error of law in holding banwarilal vicariously liable for the negligence of mohammad ramzan in driving the said vespa scooter.8. the learned counsel for the claimant supporting the award of the tribunal holding banwarilal and mohammad ramzan liable for compensation contended that the amount awarded by the tribunal is too low and deserves to be suitably enhanced. he also contended that, the tribunal committed an error in awarding interest on the amount of compensation @ 4% p. a. he submitted that the tribunal should have awarded interest at 6% p. a,9. on the contentions raised by the learned counsel.....
Judgment:

R.K. Vijayaargiya, J.

1. This order shall also dispose of Misc. Appeal no. 40 of 1979 (Banwarilal v. Smt. Sharifanbai and others) and Misc. Appeal no 140 of 1979 Smt. Sharifanbai v. Banwartlal and another.

2. These appeals are directed against the award dated 31-1-1979 passed by the 1st Additional Motor Accidents Claims Tribunal, Indore in claim case no. 113 of 1975.

3. The facts giving rise to these appeals briefly stated are as follows : On 17-3-1975 at about 3-30 p.m. Mohd. Ramzan was riding Vespa Scooter no. MPI 7374 in Loharpatti, MalharganJ. Indore. The claimant Sharifanbai was going on the left side of the road for grinding wheat. Mohammad Ramzan came on the said scooter from the opposite side and dashed against her. She fell down and sustained injuries on her left arm left leg head and back. According to the claimant the accident was caused by the rashness and negligence of Mohammad Ramzan in driving the said scooter. On the date of accident Bamvarilal was the registered owner of the said scooter no. MPI 7374. The claimant therefore submitted an application under Section 110-A of the Motor Vehicles Act claiming Rs. 25,000/- as compensation from Mohammad Ramzan, Banwarilal and the Oriental Fire and General Insurance Co. Ltd., on the ground that the accident was caused on account of the rashness and negligence of Mohammad Ramzan in driving the scooter, and that as Banwarilal was the registered owner of the said Vespa scooter and it was insured with the Oriental Fire and General Insurance Co. Ltd. they were also liable to pay compensation to her.

4. Mohammad Ramzan resisted the claim on the ground that the accident was not caused by the Vespa scooter which he was driving. Banwarilal resisted the claim on the ground that he had already transferred the vespa by sale to Mohammad Ramzan and therefore he was not liable. The insurer resisted the claim on the ground that the said Vespa was not insured with it.

5. The Tribunal held that the accident was caused on account of the rashness and negligence of Mohammad Ramzan in driving Vespa no. MPI 7374 and therefore he was liable to pay compensation to the claimant Sharifanbai. The Tribunal also held that Banwarila was the registered owner of Vespa and as such he was also liable to pay compensation to the claimant. The Tribunal absolved the Insurance Company of any liability on the ground that it was not proved that the Vespa was insured with it. The Tribunal awarded Rs. 6,500/- as compensation to the claimant against Mohammad Ramzan and Banwarilal for the injuries sustained by the claimant in the accident. The Tribunal also awarded interest on the amount of compensation at 4% p. a. from the date of the application till realisation. Aggrieved by the award of the Tribunal Mohammad Ramzan, Banwarilal and the claimant Sharifanbai preferred appeals before this Court; which are registered as Misc. Appeals nos. 38 of 1979. 40 of 1979 and 140 of 1979 respectively. As all these appeals arise out of a common award they are being disposed of by this order.

6. The learned counsel for Moham-mad Ramzan contended that the Tribunal committed an error in holding that the accident was caused by Vespa scooter no. MPI 7374 which was being driven by Mohammad Ramzan at the time of the accident. He also contended that the Tribunal erroneously held that the accident was caused on account of the rashness and negligence of Mohammad Ramzan in driving the said scooter. He further contended that the amount awarded by the Tribunal is excessive and deserves to be suitably reduced.

7. The learned counsel for the registered owner Banwarilal contended that in the circumstances of the case the Tribunal committed an error of law in holding Banwarilal vicariously liable for the negligence of Mohammad Ramzan in driving the said vespa scooter.

8. The learned counsel for the claimant supporting the award of the Tribunal holding Banwarilal and Mohammad Ramzan liable for compensation contended that the amount awarded by the Tribunal is too low and deserves to be suitably enhanced. He also contended that, the Tribunal committed an error in awarding interest on the amount of compensation @ 4% p. a. He submitted that the Tribunal should have awarded Interest at 6% p. a,

9. On the contentions raised by the learned counsel for the parties the following points arise for determination in these appeals :

(i) whether the Tribunal committed an error in holding that the accident was caused by the rashness and negligence of Mohammad Ramzan in driving vespa scooter no. MPI 7374?

(ii) whether the amount awarded by the Tribunal is too excessive or too low requiring interference in appeal? And

(iii) whether the Tribunal committed an error in holding Banwarilal vicariously liable for the negligent act of Mohd Ramzan in driving the said vespa scooter MPI 7374?

10. As regards first point the claimant examined herself as AW 7, Kailash-chandra (AW 5) and Azner (AW 6) to prove the accident. Mohammad Ramzan examined himself as (nAW 2 (1)), preh-lad Sharma (nAW 2 (2)), Anirudha Joshi (nAWs 2, 3) and Abdul Rashid (nAW 2, 4) in support of his defence that the accident was not caused by the scooter which he was riding.

11. The claimant Sharifanbai deposed that she was going from her house for grinding wheat. When she emerged out of a Gali and came near the shop of pickle vendor, there was a heap of building material lying on the road, a scooter came from the opposite direction. It was coming at an excessive speed. The scooter was being driven by Mohammad Ramzan. The scooter dashed against her. She fell down and became unconscious. She regained consciousness in the M. Y. Hospital. Her left arm and left leg were fractured and she was treated in the M. Y. Hospital. It was put to her in cross-examination that she was dashed against by an auto rickshaw which came from behind. She denied this suggestion. There is nothing in her cross-examination from which it can be held that the accident was caused by some other vehicle and she has any reason to falsely implicate Mohammad Ramzan.

12. Sharifanbai is supported by Kailashchandra and Azahar, Kailash-chandra deposed that he saw the accident. It was caused by a scooter which was being driven by a fatish boy. The scooter dashed against a woman who was going towards Loharpatti. Azahar also deposed that the woman was dashed against by a scooter.

13. As against this testimony Mohammad Ramzan deposed that he was driving the scooter cautiously and his scooter did not dash against the claimant. According to him the claimant was dashed against by an auto-rickshaw which came from the opposite direction. In order to save himself he swerved his scooter to the extreme side of the road and he also fell down and sustained injuries. The witnesses examined by him supported him.

14. The Tribunal on appreciation of the testimony of the witnesses examined by the parties believed the testimony of the claimant, Kailashchandra and Azahar and held that the accident was caused by the Vespa scooter which was being driven by Mohammad Ramzan. The Tribunal disbelieved the testimony of Mohammad Ramzan and the witnesses examined by him. On going through the testimony of the witnesses I am of the opinion that the Tribunal was fully justified in taking the view that the accident was caused by the scooter which was being driven by Mohammad Ramzan- and there is no reason to interfere with the said finding recorded by the Tribunal.

15. I am of the opinion that the Tribunal did not commit any error in holding that the accident was caused on account of the negligence of Mohammad Ramzan in driving the scooter. The claimant stated that on seeing the scooter coming from the opposite direction at an excessive speed she moved herself to the side of the road where a heap of building material was lying, A vespa came in front of her and dashed against her Mohammad Ramzan did not give any acceptable explanation as to how the accident was caused. Instead he chose to deny that the accident was caused by the scooter which he was driving That explanation is held to be not reliable. In the circumstances the Tribunal was fully justified in holding that the accident was caused on account of the rashness and negligence of Mohammad Ramzan in driving the said vespa scooter.

16. As regards point no. 2 the claimant deposed that she had engaged herself in sewing ready made cloth-bags and in making paper-bags and that she was earning about Rs. 7-8 per day before the accident and that she is not doing anything after the accident because she is unable to do any work.

17. Dr. Section K. Ohri who treated the claimant deposed that the claimant was admitted to the hospital on 17-3-1975. She had a fracture in her left arm and a compound fracture of fibula and tibia of the left leg.

18. Dr. Riyaz Hussain (AW 3) deposed that Sharifanbai was admitted to the hospital at 3.45 p.m. on 17-3-1975 and she had injuries on her person. Dr. Gyanchand deposed that he examined Sharifanbai on 24-3-1977. She complained of pain in her left arm. He found that ulna and radius were not properly joined and that was the cause of pain. He opined that the claimant had suffered 30% permanent disability in her left arm.

19. On the evidence the Tribunal awarded to the claimant Rs. 300/- on account of medical expenses, Rs. 200/--on account of expenses incurred on special diet, Rs. 1,200/- for pain and suffering and Rs. 4,800/- on account of loss of income -- total Rs. 6,500/-. In my opinion considering the injuries caused to the claimant in the accident it cannot be said that the amount awarded by the Tribunal is top excessive requiring reduction in appeal. It also cannot be said that the amount awarded by the Tribunal is too low requiring enhancement in appeal. It is consistently held by this Court that this Court in appeal will not interfere with the amount of compensation awarded by the Tribunal unless it is made out that it is too low or too excessive. In my opinion the learned counsel for the claimant and Mohammad Ramzan were unable to make out that the amount awarded by the Tribunal is too low or too excessive. I, therefore, see no reason to interfere with the amount awarded by the Tribunal as compensation.

20. The learned counsel for the claimant also contended that the Tribunal! committed an error in awarding interest at 4% p.a. It is true that the Tribunal has not given any reason why it has awarded interest at 4% p. a. and not-at 6 % p. a. but in my opinion on the facts and in the circumstances of the case it is not a fit case in which interference is called for in the discretion exercised by the Tribunal in awarding interest at 4% p. a.

21. As regards point no. 3 the learned counsel for Banwarilal contended that even if Mohd. Ramzan was treated as the agent of Banwarilal the latter is not liable for the negligent act of the former because at the time of the acci-deni Mohd. Ramzan was engaged exclusively upon his own purpose and he was not acting under the control of Banwarilal and was not driving the vehicle in execution of a purpose of Banwarilal. He placed reliance upon a statement of law contains in paragraph 71 of the Hals-bury's Laws of England (third edition Vol. 28) Morgans v. Launchbury, (1972) (2) All ELR 606, Hewitt v Bonvin, (1940) 1 KB 188, Mangilal v Parasram (AIR 1971 Madh Pra 5), State of M. P. v. Premabai (AIR 1979 Madh Pra 85) and Sitaram Motilal Kalal v. Santanu-prasad Jaishanker (AIR 1966 SC 1697).

22. The learned counsel for the claimant contended that Banwarilal was the registered owner of the scooter no. M.P.I. 7374 on the date of the accident. The possession of the said scooter transferred by Banwarilal to Mohd. Ramzan to circumvent the provisions of the Scooter (Distribution and Sale) Control Order 1960. Banwarilal transferred possession of the scooter to Mohd. Ramzan with the full knowledge that Mohd. Ramzan will drive the same and therefore Banwarilal is vicariously liable for the negligent act of Mohd. Ramzan in driving the said scooter. He placed reliance upon the decisions in northern India General Insurance Co. Ltd. v. Kanwariit Singh (1973 ACJ U9): (AIR 1973 All 357), Padmadevi v. Gurbaksh Singh (1973 ACJ 460): (AIR 1973 Raj 317) Orissa Co-operative Ins. Society Ltd. v. Bhagban Sahu (1971 ACJ 490 (Orissa), J C. Chennarayudu v. n. Lak-shmamma (1980 ACJ 189): (AIR 1980 Andh Pra 143) and Maina v. niranjan Singh (1976 ACJ 1) : (AIR 1976 Raj 71).

23. Before considering the rival contentions of the learned counsel for the parties it would be useful to slate the following facts which are not in dispute. Scooter no. M.P.I- 7374 was purchased by Banwarilal and was registered in his name. I| continued to be registered in his name at the time of the accident. Under the provisions of the Scooter (Distribution and Sale) Control Order 1960 no person was allowed before the expiry of one year (subsequently two years) from the date when a scooter was first purchased as a new scooter, to sell or offer to sell the scooter into any other transaction involving the transfer of possession of the scooter to any other person except under and in accordance with the terms and conditions of a permit in writing from the Controller or, in a State, an officer appointed for the purpose by the Government of that State.

24. It is clear that Banwarilal parted with possession of the said scooter to Mohd. Ramzan to circumvent the provisions of the said Control Order and that is why Banwarilal continued to be the registered owner of the scooter. As there was a prohibition for transfer of a possession also in law Banwarilal continued to remain in possession of the scooter. Thus the legal title remained with Banwarilal and legal possession of the scooter was also with Banwarilal. The position of Mohd, Ramzan vis-a-vis Banwarilal was a peculiar one. Mohd. Ramzan was not the servant of Banwari-lal. He also cannot be said to be his agent properly so-called.

25. It is true that the law in England on the point is, as stated in para 71 of the Halsbury's Laws of England (3rd Edn. Vol. 28) which reads as follows:--

'71. Servant and agents.-- Where the driver is a servant, and the negligent act is done in pursuance of his employment, the master is liable, (d).

Where the owner (e) of a vehicle allows another person to drive it in his presence he is liable for negligent driving by that other person as his agent (f). Even though not present, the owner continues to be responsible for negligent driving by a person who. without being a servant, is authorised to take charge of the car as his agent (g). The owner is, however, responsible (h) only where he has delegated to the driver the execution of a purpose of his own over which he retains some control and not where the driver is a mere bailee, engaged exclusively upon his own purposes (i).'

The English decisions referred to by the learned counsel for Banwarilal take the same view. However, the doctrine of various liability is in a process of revolution. It is a great principle of social justice. One need not be overweighed with the old decisions on the subject given under radically different circumstances for now the owner of a car in India is not burdened with an unpredictable liability as there is a statutory compulsion on him to insure his car against third party liability and his burden within the framework of the Motor Vehicles Act is now transferred to the insurer.

26. The question which arises in this appeal has not been dealt with in any decision relied upon by the learned counsel for Banwarilal no other decision bearing on the point involved in this case was brought to my notice. If a vehicle is transferred by the owner thereof to circumvent any provision of law and the owner continues to remain the registered owner thereof and the vehicle is also insured in the name of the registered owner and an accident is caused by the transferee or by a servant or agent of the transferee in such a case if the law laid down in the English decisions cited by the learned counsel for Banwarilal is followed, the registered owner is not liable. The insurer would also not be liable because the vehicle is insured in the name of the registered owner. In such cases great hardship would be caused to the injured or the dependants of the deceased because the ransferee may be a man of straw and they may not be able to recover any compensation from him. In my view in such cases the registered or the ostensible owner must be held liable for the negligence of the transferee or his servant or agent in the course of his employment or within the scope of his authority; because in transferring possession of the vehicle in contravention of the provision of law the ostensible owner must be deemed to have knowledge that the vehicle will be used by the transferee or his agent or servant and that they might use it negligently or rashly causing injuries to third parties. If with this knowledge the owner transfers the vehicle to circumvent any rule or provisions of law there is no valid reason why he should not be held liable for the negligent act of the transferee or his servant or agent.

27. In Padma Devi v. Gurbakshsingh (11)73 ACJ 460): (AIR 1973 Raj 317) a Division Bench of the Rajasthan High Court has held that if a vehicle is transferred before the accident but the transfer was not proved and the transferor continues to be the registered owner of the vehicle and an accident is caused by the employee of the transferee the registered or ostensible owner is liable for the consequences of the accident. This view is also taken in the other decisions relied upon by the learned counsel for the claimant.

28. I am in respectful agreement with the view taken in these decisions. The decisions relied upon by the learned counsel for Banwarilal as stated above do not deal with the point involved in this case and they are distinguishable on facts. I am, therefore, of the opinion that the Tribunal did not commit any error in holding Banwarilal responsible for the consequences of the negligent act of Mohd. Ramzan, Thus, there is no reason to interfere with the award passed by the Tribunal,

29. As a result of the discussion aforesaid these appeals fail and are dismissed. In the circumstances the parties shall hear their own costs of these appeals.


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