Judgment:
I.A. Ansari, J.
1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988, (in short, 'the MV Act, 1988') against the award, dated 28-9-1982, passed, in MAC Case No. 2/93, by the learned Motor Accident Claims Tribunal. Darrang, determining a sum of Rs. 52,000/- as compensation for the death of the claimant's 12/13 year old daughter.
2. The case of the claimant may, in brief, be described thus : While the claimant's daughter, Rupanjali Bora, was proceeding, on 7-12-1992, to her school, the offending vehicle, namely, Ambassador car, bearing registration No. WMD 3689, ran over Rupanjali at National Highway No. 52 at Bheberghat, Mongoldoi town. Rupanjali sustained grievous injuries as a result of the said accident and succumbed to her injuries at the hospital.
3. The claimant, then, made an application under Section 166 of the MV Act, 1988, and sought for a sum of Rs. 5,00,000/- as compensation. A claim proceeding was accordingly initiated against one Nishiranl Hazarlka, who is respondent No. 1 herein, as owner of the vehicle. However, during the progress of the claim proceeding, when it came to light that M/s Jlndal and Co. of Calcutta was the registered owner of the vehicle, M/s Jindal and Co. was also served with notice. While M/s Jindal and Co. did not contest the proceeding, the respondent No. 1 herein contested the proceeding by filing written statement, her case being, in brief, thus : The respondent No. 1 was not the owner of the vehicle and was, therefore, not liable to pay any compensation to the claimant. The learned tribunal determined a sum of Rs. 50,000/- as the total compensation and held M/s Jindal and Co. as the owner of the vehicle, liable to pay compensation to the claimant, with interest at the rate of 9%, per annum, from the date of making of the claim application. Aggrieved by the quantum of compensation, so awarded, and also contending, inter alia, that the liability to pay compensation ought to have been imposed on Smt. Nishi Rani Hazarika (i.e. respondent No. 1 herein), the claimant has preferred the present appeal.
4. I have heard Mr. D. Mazurndar, learned Counsel for the appellant, and Mr. T. Bidyut Bikash and Mr. J. Kalita, learned Counsel for respondent Nos. 1 and 4 respectively. I have also heard Mr. K.N. Choudhury and B.C. Das, learned senior counsel, as Amicus Curiae.
5. While considering the present appeal, it needs to be noted that at the time of the accident, the claimant's daughter, Rupanjali, was aged about 12/13 vears and she was a student of class VIII. In these circumstances, what shall be the compensation is the question. Though material distinction exists between the factors, which govern the determination of the amount of compensation under Section 166 and the one under Section 163A of the M.V. Act, 1988, and there are distinct advantages as well as disadvantages in claiming compensation under Section 166 vis-a-vis Section 163A of the M.V. Act, 1988, the guidelines given in the structured formula, framed under Section 163A, may be applied, in an appropriate case, while determining compensation, in a claim for compensation arising under Section 166 of the M.V. Act, 1988.
6. According to the structured formula given under Section 163A of the M.V. Act, the notional income of a person up to the age of 15 years may be taken to be Rs. 15,000/-. In the present case, since the said deceased was aged about 13/14 years at the time of her death, it will not be unreasonable to treat her notional income as Rs. 15,000/- and if 1/3rd of this notional income is deducted and 15is applied as the multiplier, the compensation works out to the tune of Rs. 1,50,000/-. To this amount needs to be added Rs. 2,000 as funeral expenses and Rs. 2,500 as loss of the estate. So calculated, the compensation comes to an amount of Rs. 1,54,000/-.
7. Turning to the question as to whether the respondent No. 1 herein could have been held responsible, or jointly or severally liable, to pay compensation to the claimant, what may be noted is that the evidence adduced by the District Transport Officer of Darrang shows that the offending vehicle stands registered in the name of M/s. Jindal and Co. and, according to the materials available with the office of the District Transport Officer, Darrang, the said vehicle was sold, on 4-9-91, by the said registered owner to the respondent No. 1 herein and, on the same day, respondent No. 1 made an application to the office of the District Transport Officer, Darrang, informing him about the purchase of the vehicle by her and requesting for transferring the registration of the said vehicle in her favour. The evidence on record also reveals that though necessary papers and documents were submitted to the office of the District Transport Officer, Darrang, the vehicle had not been transferred in the name of the new purchaser thereof, i.e. respondent No. 1 herein, on ac-count of the fact that the requisite certificate, as regards payment of up-to-date dues, had not been made available to the authorities concerned.
8. Thus, though the evidence on record shows that the vehicle had been purchased by respondent No. 1, the fact remains that the vehicle had not been registered in her name till the day, when the said accident took place. Can, in such circumstances, the respondent No. 1 be made liable to pay compensation to the claimant ?
9. While considering the above aspect of the case, what may be noted is that though a claims tribunal is constituted under Section 165 of the M.V. Act, 1988, the award assessing compensation is rendered by a claims tribunal under Section 168 of the M.V. Act, Sub-section (1) of Section 168 of the M.V. Act, 1988, makes it clear that the compensation shall be payable by the insurer or owner or driver of the Vehicle involved in the accident or by any of them, as the case may be. In the face of the provisions of Sub-section (1) of Section 168 of the M.V. Act, 1988, none other than the insurer, owner or driver of a vehicle can be fastened with the liability to pay compensation under the provisions of the M.V. Act, 1988. In the present case, the offending vehicle was, admittedly, without insurance at the time, when it was being plied and met with the accident. In such a situation, in the light of the provisions of Sub-section (1) Section 168, it is the owner or driver of the vehicle or both of them, who could have been made liable to pay compensation to the claimant-appellant.
10. The question, now, is this : Could the respondent No. 1 have been regarded as owner of the vehicle, even if it is assumed, for a moment, that the vehicle stood purchased by respondent No. 1, at the time, when the said accident had taken place My quest for an answer to this question brings me to Section 2(19) of the Motor Vehicles Act, 1939 (in short, 'the M.V. Act, 1939), which defined 'owner'. The relevant provisions of Section 2 are reproduced below:
Section 2. Definitions :- In this Act, unless there is anything 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 is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement;
11. From a careful reading of the definition of owner, as the same appeared in Section 2(19) of the M.V. Act, 1939, it is clear that a person, who was major and in possession of a motor vehicle, could have been regarded as owner thereof under the M.V. Act, 1939. Thus, in terms of the definition of the word 'owner', as given in Section 2(19) of the M.V. Act, 1939, whoever had the control and possession of a vehicle could have been regarded as owner of the vehicle. This definition and concept of owner under the M.V. Act, 1939, stands materially changed in the M.V. Act, 1988, for Section 2(30) of the M.V. Act, 1988, which defines owner, now, reads as under:
2. Definitions.- In this Act, unless the context otherwise requires,
* * * * *
(30) 'owner' means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle, which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;
12. From a cautious and microscopic reading of the definition of 'owner', as the same occurs in Section 2(30) of the M.V. Act, 1988, it becomes clear that a person, in order to be regarded as an owner, must have the vehicle registered in his name and where such a person is a minor, then, his guardian would be regarded as the owner. Section 2(30) of the M.V. Act, 1988, also indicates that in relation to a motor vehicle, a person may be regarded as owner, though he may not be the registered owner of the vehicle, provided that he is in the possession of the vehicle either on the strength of a hire-purchase agreement or an agreement of lease or an agreement of hypothecation. In other words, apart from a person, in whose name a vehicle stands registered, even the person, who is in possession of a vehicle pursuant to a hire-purchase agreement, an agreement of lease or an agreement of hypothecation, would be regarded as owner.
13. What logically follows from the above is that if a person is not a registered owner of a vehicle or his possession of the vehicle is not pursuant to the three specified forms of agreement, namely, hire-purchase agreement, agreement of lease or agreement of hypothecation, such a person would not be regarded as owner of the vehicle.
14. What further follows from the above discussion is that in the M.V. Act, 1939, emphasis for being regarded as 'owner' of a vehicle was on the control and possession of the vehicle; whereas in the M.V. Act, 1988, emphasis has shifted from 'possession' to 'registration' and, accordingly, unless a vehicle is registered in the name of a person, he cannot be regarded as owner of the vehicle. This general principle is, however, subject to three specified exceptions, namely, that a person in possession of a vehicle may also be regarded as owner thereof provided that he comes into possession of the vehicle in any of the said three specified modes of agreement, namely, (i) hire-purchase agreement, (ii) agreement of lease, or (iii) agreement of hypothecation. Thus, while under the M.V. Act, 1939, even a person, who might have had stolen a vehicle and committed an accident, could have, perhaps, been regarded as the owner of the vehicle, for, he had the control and possession of the vehicle, the definition of owner, now, given under M.V. Act, 1988, makes it clear that the possession of a vehicle has to be acquired through the three specified modes, as given under Section 2(30), in order to treat a person as owner of a vehicle on the basis of his possession alone. This change, in the mode of definition of 'owner', appears to have been made by the legislature in order to help the victims of road traffic accidents. A vehicle, in order to be used in a public place, needs to have compulsory insurance, in terms of Section 147 of the M.V. Act, 1988, so as to safeguard the interest of a third party. Whoever may come to possess the vehicle, the registered owner of the vehicle would be regarded as the owner of the vehicle and the insurer would remain liable to pay compensation to a third party even if the vehicle meets with an accident, when the registered owner of the vehicle did not have the control and possession over the vehicle.
15. Having regard to the definition of owner, as occurs in Section 2(30) of the M.V. Act, 1988, which is distinguishable from the definition of owner, contained in Section 2(19) of the M.V. Act, 1939, one cannot help, but hold that unless the respondent No. 1 is found to be the registered owner of the vehicle, in question, or unless the respondent No. I's possession of the vehicle is proved to be pursuant to a hire purchase agreement or an agreement of lease or an agreement of hypothecation, the respondent No. 1 cannot be regarded as owner of the vehicle under Section 2(30) of the M.V. Act, 1988.
16. Under the M.V. Act, 1939, registration of vehicle was not the principal consideration for treating a person as owner of the vehicle and, hence, in accordance with the principles embodied in sale of goods, ownership of the vehicle could have changed from one hand to another with the purchase of the vehicle and, if a person, on having purchased a vehicle, had acquired possession and control thereof, he or she could have been regarded as the owner of the vehicle. Under the definition of owner, as given in Section 2(30) of the M.V. Act, 1988, if a registered owner parts with the possession of the vehicle in favour of the person, who has purchased the vehicle, the registered owner still remains the owner of the vehicle even if he ceases to have control and possession of the vehicle. As a corollary thereto, the person, who may have purchased the vehicle, but has not got his name registered as owner of the vehicle, shall not be regarded, for the purpose of Section 168, as owner of the vehicle, though such a person may have the control and possession of the vehicle. In such a case, if the vehicle stood insured, the insurer would be liable to pay compensation to the claimant, notwithstanding the fact that the registered owner has sold the vehicle and the same has not been registered in the name of the purchaser.
17. In the present case, though the materials on record disclose that M/s. Jindal and Co. had sold the vehicle to the respondent No. 1, the fact remains that till the day of the accident, the vehicle had remained registered in the name of M/s. Jindal and Co. and, in the face of this admitted fact, none but M/s. Jindal and Co. could have been regarded as owner of the vehicle under Section 2(30) of the M.V. Act, 1988, and none bul M/s. Jindal and Co. (i.e. respondent No. 2) con Id have been held liable to pay compensation, which has been determined in this appeal.
18. From the evidence of the District Transport Officer, Darrang, it also transpires that the vehicle, in question, was financed by the respondent No. 3 herein, namely, M/s. Onkarmal Sankarlal, Calcutta, and the respondent No. 2, namely, M/s Jindal and Co. is the person, who got the vehicle financed, and had the possession of the vehicle in terms of a hire-purchase agreement, which it (the respondent No. 2) had with the respondent No. 3. It has been submitted by Mr. Mazumdar that respondent No. 1, having purchased the vehicle from respondent No. 2, has stepped into the shoes of the respondent No. 2 and has become owner of the vehicle in terms of Section 2(30) of the M.V. Act, 1988, inasmuch as her possession is pursuant to a hire-purchase agreement.
19. While considering the above aspect of the case, what may be noted is that even according to Mr. Mazumdar's submission, the vehicle was financed by respondent No. 3 in favour of respondent No. 2. Thus, the possession of the vehicle by respondent No. 2 was pursuant to a hire-purchase agreement and respondent No. 2 could have been regarded as the owner of the vehicle within the meaning of Section 2(30) of the M.V. Act, 1988. As far as the respondent No. 1 is concerned, she was not a party to the said hire-purchase agreement, which existed between respondent No. 2 and respondent No. 3. There is not even an iota of material on record to show transfer of vehicle from respondent No. 2 to respondent No. 1 was with the consent of respondent No. 3. There was, thus, no hire-purchase agreement in existence between respondent No. 3 and respondent No. 1. In this view of the matter, it cannot be held that respondent No. 1 has stepped into the shoes of respondent No. 2 and can be regarded as the owner of the vehicle within the meaning of Section 2(30) of the M.V. Act, 1988.
20. What crystallizes from the above discussion is that in the facts and circumstances of the present case, the claimant-appellant is entitled to receive a sum of Rs. 1,54,000/- as compensation, this compensation being payable by the respondent. 2, herein, namely, M/s Jindal and Co., with interest at the rate of 9% per annum, from the date of the making of the claim application until realization of the entire amount.
21. With the above observations and directions, this appeal shall stand disposed of.
22. Send back the LCR.