Person in possession of vehicle be also construed as ‘Owner’ of offending vehicle: HC

FULL TEXT of J&K HCJudgment Passed by Mr Justice Tashi Rabstan on 14 /11/2017

22/11/2017

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CIMA no.155/2013
Date of order: 14.11.2017
M/s Jammu Motors Pvt. Limited
v.
Neelam Kumari and others
Coram:
Hon’ble Mr Justice Tashi Rabstan, Judge
Appearing Counsel:
For Petitioner(s): Mr K.D.S.Kotwal, Advocate
For Respondent(s): Mr. Gagan Basotra, Advocate for R-1 to 3
Mr. Amit Gupta, Advocate for R-4.
Whether approved for reporting: Yes/No
1. Shri Rajinder Parshad, husband of respondent no.1 and father of respondents 2&3, lost his life in a tragic accident on 20th February 2008 at about 9.00 PM, when he, while standing near out gate of General Bus Stand, B.C.Road, Jammu, was hit by a Santro Car bearing Registration No.JK02Q-0887, plied by Shri Ranjit Singh son of Joginder Singh resident of Marh Bagh Tehsil & District Jammu – respondent no.5 herein. Deceased’s wife, daughter and son, sometime after the accident, laid a claim petition before learned Motor Accident Claims Tribunal, Jammu (for brevity “Tribunal”), claiming compensation of Rs.37.50 Lacs.
2. Claim Petition was not contested by driver of offending vehicle (respondent no.5 here), as a result whereof, he was set ex parte by Tribunal. Though initially, claim petition was not opposed by owner of offending vehicle (respondent no.4 here), but, later, on his motion,ex parte award passed against him on 19th December 2009, was set aside and he was permitted to oppose claim petition. M/s Jammu Motors Private Limited – appellant here, was at the instance of respondent no.4 impleaded as party respondent in claim CIMA petition as according to respondent no.4, the vehicle on 18th February 2008 was handed over to M/s Jammu Motors Private Limited for its repairs, which was delivered to owner (respondent no.4), after effecting repairs to it, on 24th/25th of February 2008. Both owner of vehicle (respondent no.4 here) and appellant filed their objections to claim petition.
3. Learned Tribunal, on perusal of pleadings, settled following issues:
(1) Whether an accident occurred on 20.02.2008 near outer gate of General Bus Stand B.C.Road, Jammu, by rash and negligent driving of offending Vehicle No.JK02Q-887 by its driver respondent no.1, as a result of which deceased Rajinder Parshad suffered fatal injuries? OPP
(2) If issue No.1 is proved in affirmative, whether petitioners are entitled to the compensation, if so to what amount and from whom? OPP
(3) Whether offending vehicle during the period of accident was under the control of respondent No.3, and whether respondent No.1 was driving the offending vehicle at the relevant time as an employee of respondent no.3? If so, to what effect? OPR-2
(4) Relief.
4. The parties adduced witnesses in support of their respective stands. Learned Tribunal, on appreciation of evidence, decided Issue no.01 in favour of claimants – respondents 1 to 3 here. Issue no.03 was decided in favour of owner of offending vehicle (respondent no.4 here) and against appellant here, holding appellant liable for negligent act of driver of offending vehicle (respondent no.5 herein). Issue no.02, learned Tribunal decided in favour of claimants, holding them entitled to compensation of Rs.15,70,000/- with interest @ 7.5% p.a. from 16th August 2011, the date on which appellant was made party respondent to claim petition till its realisation and present appellant liable to pay the said compensation along with interest.
5. The Award dated 24th January 2013 is questioned in Appeal on hand on the grounds set out therein.
6. I have gone through the memo of appeal as also record received from learned Tribunal. I have heard learned counsel for parties.
7. Learned counsel for appellant company states that offending vehicle was never handed over to appellant company by its owner (respondent no.4) for effecting repairs and that appellant company is not a registered owner of offending vehicle, therefore, appellant company is not liable to pay compensation. In support of his submission, learned counsel for appellants has placed reliance on decision rendered in Guru Govekar v. Filomena F. Lobo 1988 (3) SCC 1.
8. Per contra, learned counsels for respondents state that owner of vehicle includes a person in actual possession and control thereof at the time of accident and it is the said person, who was in possession and control of the vehicle at the time of accident, responsible to pay compensation. In support of their contentions, they citeB. Govindarajulu Chetty v. M.L.A.Govindaraja Mudaliar and ors, AIR 1966 Mad 332; Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt 1966 AIR SC 1697; Rajasthan State Road Transport Corporation v. Kailash Nath Kothari and others, 1997 AIR SC 3444; Devinder Singh v. Mangal Singh and ors AIR 1981 P&H 53; V.J.Acharya v. Retinal Fulchand Shah and anr AIR 1984 Bom 335; State of Maharashtra v. Indian Medical Association and others 2002 AIR SC 302; Ramesh Mehta v. Sanwal Chand Singhvi 2004 AIR SC 2258; National Insurance Co. Ltd. v. Deepa Devi and others (2008) 1 SCC 414; Sasidharan Nair v. Ali and others 2010 (83) ACJ 1061; and Purnya Kala Devi v. State of Assam & anr 2014 (14) SCC 142.
9. The case of appellant company is that offending vehicle was never handed over to appellant company by its owner (respondent no.4) for effecting repairs and as a consequence it was not in possession thereof when accident took place. Whether this aspect of the matter has been taken care of or not by learned Tribunal, glance of impugned judgement is indispensable. Read-through whereof unequivocally divulges learned Tribunal having been very much conscious of this facet of the matter. While deciding Issue no.3, viz. whether offending vehicle during the period of accident was under the control of respondent No.3, and whether respondent No.1 was driving the offending vehicle at the relevant time as an employee of respondent no.3? If so, to what effect, learned Tribunal had an ornate discussion vis-à-vis witness(es) adduced by the parties. The present appellant preferred to not adduce any witness in rebuttal to the evidence brought on record by owner of offending vehicle. Not only this, another important facet of the matter that needs to be taken note of is that as per police investigation offending vehicle was handed over by owner to appellant company for repairs well before the accident, which is also clear from the statements of witnesses recoded by police under section 161 of Cr.P.C. It would be gainful to reproduce hereinafter appropriate excerpt of impugned judgement in verbatim ac literatimas it having clinching impact on and shatters entire case projected by appellant:
“…From the afore quoted statement of respondent No.2 and his witness, it appears that respondent No.2 had handed over the offending car to respondent No.3 for its repairs on 18.02.2008 and he had received it back after its repairs on 23.02.2008. Nobody one behalf of respondent No.3 has come to the witness box to rebut the aforesaid evidence brought on record by respondent No.2 There is nothing in the cross examination of respondent No.2 or his witness to discredit their statements on this aspect of the case. Respondent No.3 has not even suggested to respondent No.2 and his witness that offending card was not handed over to respondent No.3 for its repairs. In these circumstances, the assertion of respondent No.1 that he had handed over the offending car to respondent No.3 for its repairs on 18.02.2008 and received it back on 23.02.2008 deserves to be relied upon. It has come in the oral evidence on record that respondent No.1 is an employee of respondent No.3 and this fact gets confirmation from the contents of police challan according to which he is shown to be a mechanic working with respondent No.3. In fact as per police investigation also offending car was handed over by respondent No.2 to respondent no.3 for repairs well before the accident. This is clear from the statements of witnesses recorded by police under section 161 of the Cr.PC, copies whereof have been placed on record by respondent No.2 as already noted respondent No.3 has not led any evidence to rebut this material. In these circumstances, the contention of respondent no.2 that he had handed over the offending car to respondent No.3 before the accident, deserves to be accepted…”
10. Not merely the above quoted passage was discussed by learned Tribunal, but the Tribunal also discussed various decisions rendered by the Apex Court qua subject-matter of the case. In furtherance to what has been discussed by learned Tribunal, it may be mentioned here that the moment accident took place in the present case, owner of offending vehicle had not been in actual physical possession of the vehicle.
He had handed it over to appellant company for effecting repairs thereto. If appellant or for that matter its employee plied the vehicle, whether it would be appropriate to say that accident took place due to the fault of its owner. Answer thereto is always negative. The underlying legislative intention of Section 2(30) of the Act of 1988 includes a person in possession of vehicle either under an agreement of lease or agreement of hypothecation or under a hire purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the “owner” and not alone the registered owner. Appellant and owner of vehicle had been under an agreement the moment owner of offending vehicle handed over the vehicle to appellant company for effecting repairs thereto. After handing over the vehicle to appellant company, the owner of offending vehicle had no control thereupon but it had been appellant company in control of the offending vehicle. If appellant or for that matter its employee, in absence of owner of vehicle, takes the vehicle out of the workshop/ place, where the vehicle was kept for effecting repairs, it cannot be said that owner of the vehicle is liable for any damage caused to the vehicle or any accident taking place during its plying by appellant or for that matter by its employee. In a situation of this nature, the case must proceed on the presumption that Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation the statutory definition contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common-sense point of view. [See Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt; Rajasthan State Road Transport Corporation v. Kailash Nath Kothari and others; State of Maharashtra v. Indian Medical Association and others; Ramesh Mehta v. Sanwal Chand Singhvi; National Insurance Co. Ltd. v. Deepa Devi and others; Sasidharan Nair v. Ali and others; and Purnya Kala Devi v. State of Assam & anr cases(supra)]
11. In light of what is stated and discussed herein above, the impugned judgement is a well-reasoned judgment, need not be interfered with. As a corollary the appeal in hand is dismissed. Interim direction, if any, shall stand vacated. The award amount, if deposited with the Registry, be released in favour of respondents 1 to 3/claimants with interest thereon, through Account Payee’s Cheque on proper identification and against proper receipt. In the event the amount so far deposited by appellant company is not the whole award amount along with interest, the appellant company shall deposit the same before the Registry of this Court forthwith and same shall be released in favour of claimants through Account Payee’s cheque.
12. Record be sent down.
(Tashi Rabstan)
Judge
Jammu
14 /11/2017
Ajaz Ahmad

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