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Geetabai and ors. Vs. HussaIn Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMadhya Pradesh High Court
Decided On
Judge
Reported inII(1984)ACC5
AppellantGeetabai and ors.
RespondentHussaIn Khan and ors.
Cases ReferredBalwant Singh v. Jhannubai and Ors.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....injuries caused to him on 13-6-1975 in the hospital. the respondent no. 2 mohammad shaft was the registered owner of the said tempo on the date of the accident and it was insured with respondent no. 3 national insurance company ltd., in the name of mohammad shafi. the claimants filed an application under section 110 a of motor vehicles act claiming rs. 60000/- as compensation on account of the death of khimaji. their case was that the accident was caused on account of the rash and negligent driving of the tempo by respondent no. 1 in the course of his employment with respondent no. 2 and therefore, the respondents no. 1 to 3 were liable to pay compensation to the claimants.3. the respondent no. 1 did not appear before the tribunal and was proceeded with ex-parte. the respondent no. 2.....
Judgment:

R.K. Vijaywargiya, J.

1. This appeal by the claimants Under Section 110 of the Motor Vehicles Act is directed against the Award dated 20-12-1977 passed by the Motor Accident Claims Tribunal, Ratlam in Claim case No. 7 of 1975.

2. The material facts are as follows:

The claimant No. 1 Geetabai is the widow of deceased Khimaji. Claimants No. 2 to 9 are the minor children of deceased Khimaji. Khimaji was a resident of village Istagarkheda, Tehsil Alot District Ratlam. On 8-6-1975 Khimaji had gone to Ratlam to meet his relations. On that day 7.45 P.M. when he was going on the road infront of the Government College, he was dashed against a tempo bearing No. M.P.O. 3929 which was being driven by the respondent No. 1 Husainkhan. Khimaji sustained serious injuries in the accident. He was admitted to the hospital. He succumbed to the injuries caused to him on 13-6-1975 in the hospital. The respondent No. 2 Mohammad Shaft was the registered owner of the said tempo on the date of the accident and it was insured with respondent No. 3 National Insurance Company Ltd., in the name of Mohammad Shafi. The claimants filed an application Under Section 110 A of Motor Vehicles Act claiming Rs. 60000/- as compensation on account of the death of Khimaji. Their case was that the accident was caused on account of the rash and negligent driving of the tempo by respondent No. 1 in the course of his employment with respondent No. 2 and therefore, the respondents No. 1 to 3 were liable to pay compensation to the claimants.

3. The respondent No. 1 did not appear before the Tribunal and was proceeded with ex-parte. The respondent No. 2 contested the claim on the ground that he had already sold the tempo to one Ujagarsingh and was not the owner of the tempo at the time of the accident. He also denied that respondent No. 1 was his employee and the accident was caused on account of the rashness and negligence of respondent No. 1 in driving the tempo. The respondent No. 3 also contested the claim on the ground that the respondent No. 2 was not the owner of the tempo at the time of the accident. Both respondents No. 2 and 3 admitted that the tempo was insured with respondent No. 3 in the name of respondent No. 2. The respondent No. 4 Ujagarsingh who was added as a party to the application subsequently contested the claim on the ground that he was not the owner of the tempo at the time of the accident and that respondent No. 1 was not his employee.

4. The Tribunal held that the accident was caused on account of the rash and negligent driving of the tempo by respondent No. 1 and, therefore, he was liable to pay compensation to the claimants. The tribunal assessed Rs. 8000/- as compensation payable by the respondent No. 1. The Tribunal further held that although respondent No. 2 was the registered owner of the tempo and it was also insured in his name with respondent No. 3, the respondents No. 2 and 3 were not liable to pay any compensation to the claimants because respondent No. 1 was not the employee of respondent No. 2. The Tribunal further held that respondent No. 4 also was not the owner of the tempo at the time of the accident and as such was not liable to pay any compensation to the claimants. The Tribunal consequently passed an Award directing the respondent No. 1 to pay a sum of Rs. 8,000/- to the claimants with interest at the rate of 6% per annum from the date of the application till payment. The Tribunal dismissed the claim against respondents No. 2, 3 and 4. Aggrieved by the Award of the Tribunal, the claimants have preferred this appeal.

5. The learned Counsel for the claimants contended that the Tribunal committed an error in holding that respondents No. 2 and 3 were not liable to pay compensation to the claimants. He also contended that the amount awarded by the Tribunal is grossly inadequate and deserves to be suitably enhanced. The learned Counsel for the respondents No. 3 and 4 supported the award of the Tribunal.

6. The following points arise for determination in this appeal:

(i) Whether on the facts and in the circumstances of the case the Tribunal committed an error in holding that respondents No. 2 and 3 were not liable to pay compensation to the claimants? and.

(ii) Whether the amount awarded by the Tribunal is grossly inadequate and, if so, what would be the just compensation award-able to the claimants?.

7. Re Point No. (1);

It is not in dispute that the respondent No. 2 Mohammad Shafi was the registered owner of the said tempo on the date of the accident. It is also admitted that the said tempo was insured with respondent No. 3 and the insurance policy was taken in the name of respondent No. 2 and was in force on the date of the accident. According to the respondent No. 2 he transferred the tempo in the year 1970 to the respondent No. 4 Ujagarsingh and the driver of the tempo Hussainkhan was not his employee and therefore, he was not liable for the rash and negligent act of Hussainkhan in driving the said tempo. The further contention is that as respondent No. 2 is not liable the Insurance Company is also not liable for the same. The respondent No. 4 led evidence to show that he was not the owner of the tempo at the time of the accident and that he had sold it to one kanhaiyalal. It has further emerged in the testimony of No. 1 Nazarshah that the tempo was also purchased by one Gover Govind and that he had purchased it from Govind.

8. In the background of above facts it has to be decided whether the respondent No. 2 who was the registered owner of the tempo at the time of the accident and the Insurance Company are liable to pay compensation to the claimants on account of the death of Khaimaji caused by rash and negligent driving of the tempo by respondent No. 1. Similar question came up for consideration in Mohammad Ramzan v. Sharifanbai and Ors. 1982 A.C.J. 445 in which one of us (Vijaywargtya, J.) after considering the cases cited in that case held as follows:

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 if the vehicle is also insured in the name of the registered owner and an accident is caused by the transferee or by a servant of 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 transferee 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 owner of 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 provision 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.

9. The learned Counsel for the respondents were unable to point out any reason why we should not approve of the aforesaid observations. The learned Counsel for the Insurance Company, however, sought to distinguish the above decision on the ground that in that case the vehicle was transferred to circumvent the provisions of Scooter (Distribution and Sale) Control Order, 1960 and such being not the case here, the principle laid down in the said decision is not applicable to the present case. This contention has no force. The doctrine of vicarious liability is in a process of evolution. It is a great principle of social justico. In principle there cannot be any distinction between the two types of cases viz; a case where a vehicle is transferred to circumvent the provisions of a statute and a case where it is transferred for any other reason if the transferrer continues to be the registered owner of the vehicle. If the owner of the vehicle by private arrangement transfers a vehicle to another person but continues to be the registered owner thereof, if would be very difficult, if not impossible, for the injured person of or the dependants of the deceased person to find out who is the owner of the vehicle at the time of the accident. The problem will become more complex if there is a series of private transfers and the vehicles continues to be under the registered ownership of the original owner. In such cases the claimants may not get any compensation from the transferee because it may not be known as to who is the actual owner of the vehicle at the time of the accident and such a person may be a man of straw. The helpless claimants also cannot recover compensation from the Insurance Company because the vehicle is insured in the name of the registered owner. In our opinion, the principle laid down in Mohammad Ramzan's case (supra) applies to the case in hand also because the tempo at the time of the accident was under the registered ownership of respondent No. 2 and was also insured in his name with the respondent No. 3. When the respondent No. 2, who continues to be the registered owner of the vehicle, transferred it he must be deemed to have knowledge that the vehicle will be used by the transferee or his transferee or his agent or servant and that they might use it negligently or rashly causing injury to third persons. If with this knowledge the respondent No. 2 has transferred the vehicle there is no valid reason why he should not be held liable for the negligent act of the transferee or his servant or agent. As the vehicle was insured in the name of the respondent No. 2 at the time of the accident, the respondent No. 3 Insurance Company also cannot escape its liability.

10. From the cases which have come up before us, we find that the tendency by the registered owners of the vehicles to transfer them by private arrangement without transferring the registration in favour of the transferees is on the increase. There is also the possibility of an unscrupulous owner of a vehicle indulging in fake transfer of a vehicle to avoid his liability to pay compensation to the claimants claiming compensation of on account of an accident caused by the vehicle. The principle of vicarious liability must be extended in such cases so that effective relief may be given to the claimants.' In such cases there is no valid reason why the registered owner should not be held vicariously liable for the negligent act of the transferee or his servant or agent in driving the vehicle.

11. The learned Counsel for the respondents placed reliance upon a Division Bench decision of this Court in Balwant Singh v. Jhannubai and Ors. 1980 A.C.J. 126 in support of his contention that where a vehicle has been transferred before the accident, the registered owner is not vicariously liable for the negligent act of the transferee or his servant or agent. However, the aforesaid decision is not an authority in support of the contention advanced by the learned Counsel for the respondents. In that case it was held that the transferee of a vehicle even if its registration is not transferred in his name, is liable to pay compensation if the accident was caused after the vehicle was transferred to him. The question whether in such a case the registered owner is also liable for the compensation did not arise for consideration in that case because the claimant did not prefer appeal against the Award of the Tribunal dismissing the claim application against the registered owner.

12. Re. Point No. 2:

The Tribunal held that deceased Khimaji was 50 years of age at the time of the accident. Khimaji earned his livelihood by agriculture and by grazing cattle. He was maintaining a large family consisting of himself his widow and eight children. In our opinion the amount of compensation assessed by the Tribunal is grossly inadequate. Geetabai deposed that the monthly income of the deceased was Rs. 400 to Rs. 500/- per month, Geetabai might have exaggerated the income of the deceased. Even if we take the monthly income of the deceased at Rs. 250/- per month, assess the dependency at Rs. 200/- per month and adopt 10 as the multiplier, the compensation payable to the appellants works out to more than Rs. 20,000/- Besides, the Tribunal has not awarded any amount under the hand, 'Pain and suffering' caused to deceased for the period he remained alive after the accident. Taking into consideration all these facts, in our opinion it will be just and proper if the appellants are awarded a sum of Rs. 20,000/- as compensation for the death of deceased Khimaji. The award of the Tribunal, therefore, deserves to be modified accordingly.

13. As a result of the discussion aforesaid the appeal is allowed with costs. The award passed by the Tribunal is modified. It is directed that the respondents 1, 2 and 3 shall pay a sum of Rs. 20,000/- to the claimants with interest at the rate of the 6% per annum from the date of the application till payment. Counsel's fee Rs. 200/- if certified.


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