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Sonaram Vs. Jaiprakash and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 80 of 1977
Judge
Reported inAIR1986MP21
ActsMotor Vehicles Act, 1939 - Sections 31, 110B and 110D; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 33
AppellantSonaram
RespondentJaiprakash and ors.
Appellant AdvocateR.B. Sharma, Adv.
Respondent AdvocateN.D. Singhal, ;A.K. Agrawal and ;D.K. Katare, Advs.
Cases ReferredBishwa NathGupta v. Munna
Excerpt:
- - according to the claimant, his left leg has not only become weak for the life but has also become deformed. the tribunal being in doubt as to who is the registered owner of the vehicle, in the interest of justice and also for being on the safe side, has awarded compensation jointly and severally against sonaram, kiran devi and the insurance company. the question of awarding non-pecuniary damages is well settled......'the act') of an amount of rs. 21,300/-, impleading appellant sonaram; the insurance company and kiran devi as the parties. according to this application, on 4-4-1970 at 7.00 a.m. the driver of tempo no. mfc 928 was driving the tempo rashly and negligently in a high speed and on the wrong side, while the applicant on his bicycle was going from patankar market towards the high court on his left side. when he reached the crossing of lohia bazar, the said driver hit him with the vehicle and due to this accident, he suffered several injuries. consequently, he was admitted in the j. a. hospital, gwalior. according to him, the thigh bone of his left leg was broken and he was admitted on 4-4-1970 in the hospital and, after treatment, was discharged on 13-5-1980. but the thigh bone did not.....
Judgment:

Ram Pal Singh, J.

1.This judgment shall also govern the disposal of Miscellaneous Appeal No. 91 of 1977 (Smt. Kiran Devi v. Jaiprakash) also.

2. These two appeals have been preferred against the award passed by the Motor Accidents Claims Tribunal, Gwalior, (for short,hereinafter called 'the Tribunal') dt. 17-3-1977 in Claim Case No. 29 of 1974.

3. Jaiprakash alias Jainarayan, respondent No. 1 filed an application for compensation before the Tribunal under Section 110-A of the Motor Vehicles Act, 1939 (for short, hereinafter called 'the Act') of an amount of Rs. 21,300/-, impleading appellant Sonaram; the Insurance Company and Kiran Devi as the parties. According to this application, on 4-4-1970 at 7.00 a.m. the driver of tempo No. MFC 928 was driving the tempo rashly and negligently in a high speed and on the wrong side, while the applicant on his bicycle was going from Patankar market towards the High Court on his left side. When he reached the crossing of Lohia Bazar, the said driver hit him with the vehicle and due to this accident, he suffered several injuries. Consequently, he was admitted in the J. A. Hospital, Gwalior. According to him, the thigh bone of his left leg was broken and he was admitted on 4-4-1970 in the hospital and, after treatment, was discharged on 13-5-1980. But the thigh bone did not unite and he had to re-enter the hospital on 10-7-1970 and till the date of filing of this application, he was an indoor patient. According to the claimant, his left leg has not only become weak for the life but has also become deformed. Due to this accident, he could not appear in the annual examination of IXth class in which he was reading. Due to this injury and permanent deformity, he had to leave his studies continuously for two years. He claimed Rs. 550/- as expenses incurred for medicines; Rs. 500/- for fruits and milk, etc.; he demanded Rs. 10,000/- as claim for mental torture resulting from the injury and Rs. 10,000/- for the physical injury. He further demanded Rs. 250/- as loss for the bicycle. This claim application was contested by the appellant; the driver of the tempo (who died during the pendency of the proceedings before the Tribunal); the Insurance Company and Smt. Kiran Devi.

4. Before the Tribunal, the claimant-respondent No. 1 examined himself as A.W. 4 and also examined Brij Bihari Gupta (A. W. 1); Sitaram (A.W. 2) and Dr. D. C. Gupta (A.W. 3). Brijbihari Gupta (A.W. 1) was a student, who was also with the claimant-respondent No. 1 on the bicycle. He has described the impact of the tempo upon thebicycle and says that he became unconscious and the claimant Jaiprakash suffered injuries. Sitaram (A.W. 2) is father of the claimant, he has proved the amounts spent by him during the confinement of Jaiprakash. Sitaram (A.W. 2) and Brijbihari Gupta (A.W. 1) have, in material particulars, corroborated the testimony of the claimant Jaiprakash. The appellant and respondent Kiran Devi also examined Bhagwati Prasad Singhal (NAW 1); Durga Prasad (NAW 2); Ramkishan (NAW 3); Sonaram (NAW 4) and G. K. Sharma (NAW 5). The appellant himself took the witness box. From the side of the claimant-respondent No. 1, before the Tribunal several X-ray plates to prove the fracture of his thigh bone were produced in evidence, but the doctor, who treated his fracture, could not be examined before the tribunal.

5. The Tribunal, by the impugned award, has awarded compensation to the tune of Rs. 4,000/- only against the appellant, Kiran Devi and the Insurance Company. This award has been passed jointly and severally against these persons. The appellant and Kiran Devi have, by separate appeals, challenged the impugned award awarded by the Tribunal in favour of the respondent-claimant Jaiprakash.

6. The facts, as disclosed, indicate that the accident had taken place on 4-4-1970, and on 22-6-1969 Sonaram, appellant, after accepting an amount of Rs. 9,250/-, transferred the vehicle in favour of Kiran Devi. A receipt is alleged to have been obtained of this amount from Sonaram, the appellant. In the receipt (Ext. D1) he has written that he is the sole owner of the tempo M.P.C. 928, permit No. 702, stage 66, model 1965 and chassis No. 466145. It further says that the engine No. of this tempo is 123276. In this respect he also says that he has received an amount of Rs. 9,250/- from Kiran Devi wife of Bhagwan Singh. This receipt is said to have been certified by Bhagwati Prasad Singhal, Notary, on 29-7-1971. The marginal witnesses of this document are Durgaprasad son of Kalicharan and Ramkishan s/o Ramswaroop.

7. In both these appeals, Sonaram says that on the date of the accident, the vehicle was in possession of Kiran Devi and, hence, the liability should have been placed upon herand not upon him. Kiran in her appeal says that Sonaram was the registered and real owner of the vehicle. She further says that she was only the financier and, as the amount was needed by the registered owner of this vehicle, i.e., Sonaram, she has only given him the money not as purchaser but only as a financier. After Ext. D1, another document Ext. D2 was also executed by Sonaram in favour of Kiran Devi. This is a special power of attorney in which it is written that he is the owner of the tempo and is authorising Kiran Devi to do all what is necessary in the Office of the R.T.O. for obtaining the permission; for payment of the tax and for other purposes. But none of these documents Ext. D1 or Ext. D2, states as to whether Sonaram has transferred the possession of this vehicle to Kiran Devi on the date of the transaction or not. The Tribunal being in doubt as to who is the registered owner of the vehicle, in the interest of justice and also for being on the safe side, has awarded compensation jointly and severally against Sonaram, Kiran Devi and the Insurance Company. But as both Sonaram and Kiran Devi have challenged the findings of the Tribunal on this point, the fact of ownership has to be decided.

8. Section 31 of the Act provides that --'where the ownership of any motor vehicle registered under this Chapter is transferred,--

(a) the transferor shall, within fourteen days of the transfer, report the transfer to the registering authority within whose jurisdiction the transfer is effected and shall simultaneously send a copy of the said report to the transferee;

(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he resides, and shall forward the certificate of registration to that registering authority together with the prescribed fee in order that particulars of the transfer of ownership may be entered in the certificate of registration.'

It is apparent that the registered owner of the vehicle Sonaram did not follow the procedure prescribed in Section 31 of the Act which deals with transfer of ownership of motor vehicles. It is also apparent from Exhibits D1 and D2 that though he had accepted cash amount from Kiran Devi, yet within 14 days he did not takeany steps to do the needful as provided in Section 31 of the Act. Similarly, Kiran Devi, the transferee, also within 30 days of the transfer did not report the transfer to the registering authority, the contention of Shri D. K. Katare, learned counsel for Kiran Devi is that as the transfer of the vehicle had not been completed, his client Kiran Devi did not apply to the registering authority within 30 days of the alleged transfer. Be that as it may. But when the registered owner transfers the vehicle to some other person and does not take any step as provided under Section 31 of the Act, then it shall be deemed that there is no transfer of the vehicle in law. This view has been taken in the case of Maina v. Niranjan Singh, 1976 Acc CJ 1 : (AIR 1976 Raj 71). It has been held in that case that even if the possession of the vehicle is transferred to the transferee and the sale is not reported to the registering authority, then this mere transfer of possession would not confer any title upon the transferee. The deceased driver of the tempo, who, after filing his written reply, had died, has stated nothing as to in whose service he was: whether of Sonaram or of Kiran Devi. Let us, therefore, examine the evidence on record more closely. Bhagwati Prasad singhal (NAW 1) in para 2of his cross-examination says that Exhibits Dl and D2 do not contain the signatures of Kiran Devi. He further says that he cannot say whether she came to his office or not. He also says that he cannot say whether Kiran Devi paid any amount in his presence or not. Durgaprasad (NAW 2) says that Bhagwan Singh, the husband of Kiran Devi, paid Rs. 9,250/- to Sonaram. He further says that in his presence Bhagwan Singh said that he was financing Sonaram and he needed only the interest. In para 2 of his cross-examination, Durgaprasad admits that Kiran Devi had not purchased the tempo from Sonaram. Ramkishan (NAW 3) says that Sonaram had given the tempo to Kiran Devi for consideration; that the key of the tempo was handed over to Kiran Devi. He further says that Kiran Devi had said that till she is recorded as the registered owner by the R.T.O. she needs authorisation. Unfortunately, this witness was not cross-examined. Sonaram (NAW 41 himself states that he had transferred the vehicle to Kiran Devi, but he has not produced any registration certificate with regard to the vehicle. Kiran Devi neither examined herself on oath nor she has produced the certificateof registration of the vehicle in question. Her absence from the witness box is a fact to be taken into consideration. But facts may be as they are. Admittedly, appellant Sonaram was the registered owner of the vehicle on the date of the accident, and it is the registered owner, who, in my opinion, shall be held liable. Inter partes transactions may exist, but, if they are not in accordance with law, they cannot be recognised. G. K. Sharma (NAW 1), a clerk in the R.T.O's office, says that tempo No.MPC928 is registered in his office in the name of Sonaram. Hence, because the fact of transfer of ownership is not given in Exhibits D1 and D2, Sonaram remains, on the date of the accident, to be the registered owner of the vehicle, and the stray statement of Ramkishan (NAW 3) cannot be relied upon. Similarly, I am also not inclined to place reliance upon this part of the testimony of the appellant that he had given possession of the vehicle in the hands of Kiran Devi. It will, therefore, have to be held that the registered owner of this vehicle on the date of the accident was appellant Sonaram and not Kiran Devi, and it is the owner recognised under law, who is liable to pay the damages.

9. During the course of arguments, Shri N.D. Singhal, learned counsel for the claimant-respondent 1, has filed I.A. No. 2186 of 1985. Along with this application he has filed a certified copy of the report of the Radiologist, the reason being that the Tribunal has held that the factum of the fracture of the thigh bone has not been proved, as no doctor has been examined on this point. This application is allowed and the document is ordered to be taken on record as additional evidence. Shri Singhal has drawn my attention to the provisions of Order 41, Rule 33 of the Civil P.C., and makes a grievance that the compensation given to his client is very little. The medical expenses and the expenses incurred by the claimant on account of milk and fruits have also not been allowed to him by the Tribunal. His further submission is that the interest awarded is also very low, and it should have been at the rate of 12 per cent per annum and that too from the date of application.

10. The powers of the appellate Court to grant relief in favour of the respondent have been dealt with in Order 41, Rule 33, C.P.C. In the case of Koksingh v. Smt. Deokabai, AIR 1976 SC 634, the Supreme Court has laid down the law in the following words :

'If an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require. Thus, under Order 41, Rule 33, the High Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree.'

It is, thus, clear that while exercising the powers of an appellate Court under Order 41, Rule 33. C.P.C., even if there is no appeal filed by the respondent-claimant, this Court can award a decree, which ought, in law, to have been passed, but was not passed by the Court below. Let us, therefore, examine whether the decree passed by the Tribunal is correct or not. It has been held by the Tribunal that the driver of the tempo was negligent and driving the vehicle at a high speed. A driver owes a duty of care to pedestrians and that duty is higher when the pedestrians happen to be of tender years. In this case, the bicyclist-claimant-respondent No. 1 was of 16 years of age. General damages awarded by the Tribunal in favour of the claimant is Rs. 4,000/- only. The claimant wants the amount to be raised by this Court. I called the claimant in the Court, saw his left thigh and the injury upon it. He walks with a marked limp and the deformity is apparent. The fact of fracture of the thigh bone was proved by the claimant himself on oath. This part was not challenged. The X-ray plates, which are on record, show that they are of one Jainarayan. Jainarayan is the alias of the claimant. They do not seem to be forged or spurious in nature. The fracture of the thigh bone is apparent from these X-ray plates, they have not been proved by the Radiologist or the Doctor, who treated the claimant.

11. Let us now examine whether the compensation awarded to the claimant by the Tribunal is in accordance with law or not. The question of awarding non-pecuniary damages is well settled. The victim is entitled to claim damages for the loss of limb, pain and suffering, loss of amenities and the injury itself. These are the heads under which damages are to be awarded. But from its very nature there is always an uncertainty in making an award of damages for non-pecuniary damage. For removing the uncertainty to some extent, a Division Bench of this Court in Vinod Kumarv. Ved Mitra, AIR 1970 Madh Pra 172 hasgiven directions to work out the rules forassessing damages. These rules are (i) theamount of compensation awarded must bereasonable and must be assessed withmoderation; (ii) regard must be had to awardsmade in comparable cases, and (iii) the sumsawarded should, to a considerable extent, beconventional. These self-imposed rules by thisCourt are the indications, according to whichthe award should be made. These rules werefollowed in the case of Deepti Tiwari v.Banwarilal, AIR 1966 Madh Pra 239, where ayoung girl of 15 years suffered a fracture ofthe spine. She was awarded a sum of Rs. 4,000/-as general damages. In Vinod Kumar's case(supra), a student of 17 years of age, wasknocked down by a truck. His left leg cameunder the vehicle and he suffered a compoundfracture of tibia and fibula, and was awarded asum of Rs. 5,000/-. In the case of Bishwa NathGupta v. Munna, AIR 1971 Madh Pra 238,which is similar to the case in hand, an amountof Rs. 6,000/- has been awarded. Keeping theratio of these cases in view, the award ofRs. 4,000/- as compensation, though, no doubt,low, seems to be moderate and adequate. Fornow allowing the expenses of medicines, fruitsand milk, the Tribunal has given reason thatthe amounts were not properly proved byproducing the receipts of the items. This viewof the Tribunal does not seem to be practical.Sometimes, persons whose kith and kin areconfined in the hospital, do forget to takereceipts of the medicines from the shops.Similarly, fruit vendors and milk vendors arenever seen to be passing receipts for fruits andmilk. If the claimant was successful in provingthese expenses, then the Tribunal should haveallowed the amounts to the claimant. Rs. 500/-have been claimed as expenses of treatmentand medicines, and Rs. 500/- have beenclaimed as expenses incurred on fruits, milkand other power giving substances. Thesefigures do not seem to be exact. In my view,they are in round figures. However, Rs. 300/-can be said to have been spent on medicines,and similarly, a similar sum can be said tohave been spent on fruits and milk. 1, therefore,partly amend the award exercising my powersunder Order 41, Rule 33C.P.C. and award a furthercompensation of Rs. 600/- more in the award.

12. So far as the grievance of the claimantwith regard to the low rate of interest is concerned, the law provides for the award of simple interest. The interest awarded at the rate of 5% per annum is very low, when the nationalised banks are giving interest at the rate of 12% per annum. But, keeping in view that only simple interest has to be awarded, in my view, awarding 10% interest from the date of the application will be just and proper. With these observations, the award passed by the Tribunal is modified to the extent indicated above.

13. The upshot of the above discussion is that the appeal of Kiran Devi (M.A. No. 91 of 1977) is allowed and it is held that she is not vicariously liable to pay the compensation. She will bear her own costs. The appeal filed by Sonaram (M.A. No. 80 of 1977) is dismissed, as it has no force. The award passed by the Tribunal shall be modified as indicated hereinabove and also to the extent that only Sonaram, the appellant, and the Insurance Company shall be liable to pay the damages and the expenses throughout, as finally awarded by the Tribunal and by this Court. Sonaram and the Insurance Company shall also bear the costs throughout. Jaiprakash alias Jainarayan the claimant, respondent, shall get counsel's fee Rs. 300/- of this Court, if certified.


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