T. Sudanthiram, J.
1. The appellant herein is the claimant in MCOP No. 152 of 1994, on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Judge, Coimbatore.
2. The brief facts of the case are as follows:
On 7-3-1993 at 3.00 p.m. while the claimant was walking along with the other family members on the Trichy main road near Coimbatore Medical College, a Scooter bearing Registration No. TN-V-4838 came behind him in a rash and negligent manner and hit him as a result of which he sustained fracture in his right leg. After taking treatment, he filed a petition claiming compensation of Rs. 1,50,000/-. The first respondent herein is the rider of the scooter, the second respondent herein is the registered owner of the vehicle.
3. The second respondent herein resisted the claim by filing counter before the Tribunal stating that on 16-2-1987 itself, he sold the said vehicle to one Kathirvel S/o. Krishnan residing in front of the Head Post Office, Coimbatore, and also handed over possession of the vehicle also. He also signed the relevant documents and handed over them to the said Kathirvel. Subsequent to the filing of the counter by the second respondent herein, the interim application was filed to implead the said Kathirvel as one of the respondents. An amended claim petition also was filed including the third respondent herein as one of the respondents. Though notice was served by the Tribunal, both the first and third respondent herein have remained ex parte before the Tribunal.
4. To prove the case of the claimant, four witnesses have been examined on his side and 12 exhibits were marked. On the side of the opposite party, the second respondent herein examined himself as R.W. 1 and one exhibit was marked. The Tribunal after considering the evidence and documents held that the accident had occurred only due to the rash and negligent driving of the first respondent herein and awarded a compensation amount of Rs. 30,000/- with interest at the rate of 12% from the date of claim petition to be paid by the first and third respondents herein.
5. The claimant/appellant herein aggrieved by the judgment of the Tribunal, which excluded the liability of the other respondents and also not satisfied with the quantum of the compensation amount awarded by the Tribunal, has preferred this appeal challenging the judgment and decree of the Tribunal praying to set aside the judgment and decree of the Tribunal and consequently to pass an award by this Court against all the respondents directing them to pay the compensation amount to the claimant.
6. The learned Counsel appearing for the appellant/claimant submitted that the Tribunal totally ignored the evidence of P.W. 4, the Junior Assistant from the office of the Regional Transport Officer who had deposed that from 10-7-1981, the second respondent herein namely Dr. A. Nallamuthu continued to be the registered owner till date. The first respondent herein/rider of the vehicle being rash and negligent in his act, the first liability is on him and the second respondent herein being the owner of the vehicle, there is a vicarious liability on the second respondent herein. The learned Counsel for the appellant relied on Section 50 of the Motor Vehicles Act and submitted that both the transferor and transferee are liable and relied on the decision of the Honourable Supreme Court in Dr. T.V. Jose v. Chacko P. M. reported in 2001 ACJ 2059 : AIR 2001 SC 3939 followed by this Court in S.N. Shanmugham v. Shankarlal Jain reported in 2002 (2) LW 126 : AIR 2003 Mad 183. The learned Counsel also relied on the decision of the Rajasthan High Court in Sajjan Devi v. Mool Chand reported in 2006 (3) ACC 233 : 2006 (4) ALJ 514 (EE).
7. The learned Counsel also submitted that the Tribunal while awarding a compensation amount has not awarded any amount under the head of loss of income and as the claimant had been the agriculturist and he was in the hospital for 67 days, he could not attend any work.
8. The learned Counsel for the second respondent submitted that the accident had occurred on 7-3-1993 and vehicle has been sold much earlier on 16-2-1987 itself. The second respondent examined himself as R. W. 1 and also marked Ex. R. 1 the delivery note given by the third respondent herein for taking possession of the vehicle after being purchased. The learned Counsel for the second respondent further submitted that the second respondent neither being the owner of the vehicle nor the rider of the vehicle and being not in possession of the vehicle is not liable to pay the compensation. He also relied on the decision of the Honourable Supreme Court in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari : 1997 3 LW 502 : AIR 1997 SC 3444.
9. This Court considered the submissions made by both parties and perused the records. The accident had occurred on 7-3-1993. While P.W. I/claimant was walking on the road, the scooter bearing Registration No. TN-V-4838 being driven by its rider in a rash and negligent manner dashed against him and he sustained fracture on the right leg. The Tribunal has rightly held that the accident had occurred only due to the negligence of the rider of the vehicle, since the evidence of P.W. 1 remains unchallenged in that aspect.
10. As per the evidence of P.W. 4, the Regional Transport Officer and the records, the name of the second respondent A. Nallamuthu only is shown as the owner of the vehicle. Though the Tribunal had accepted the evidence of P.W. 4, but relying on the evidence of R.W. 1 and the Ex. R.1 the delivery note has held that the offending vehicle belongs to the third respondent herein and passed an order against the third respondent and fixed the liability only against the third respondent. Now it is to be decided whether fixing the liability only on the third respondent alone excluding the respondents 1 and 2 is correct.
11. It is observed by the Hon'ble Supreme Court in Dr. T.V. Jose v. Chacko P.M. reported in 2001 ACJ 2059 : AIR 2001 SC 3939 as follows:
10. We agree with Mr. Iyer that the High Court was not right in holding that the appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However, the appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as owner. The appellant could not escape that liability by merely joining Roy Thomas in these appeals. Roy Thomas was not a party either before the MACT or the High Court. In these appeals we cannot and will not go into the question of inter se liability between the appellant and Roy Thomas. It will be for the appellant to adopt appropriate proceedings against Roy Thomas if in law, he is entitled to do so.
12. After following the above said decision, this Court in the decision in S.N. Shanmugam v. Shankarlal Jain reported in 2003 2 LW 126 : AIR 2003 Mad 183 has observed as follows:
13. Now, we shall considers the decisions referred to by the learned Counsel for the first respondent. He very much relied on the case of Panna Lal v. Shri Chand Mal reported in : 1980 ACJ 233 : AIR 1980 SC 871 wherein the Supreme Court held that as per Section 31 of the 1939 Act, the transfer of ownership is permitted, but the statute cast an obligation on the transferee to report to the registering authority concerned regarding the transfer of the vehicle along with the certificate of registration and then get the registration transferred in his name. Their Lordships have further held, it was therefore, the duty of the plaintiff to have applied to the registering authority under Section 31 of the Motor Vehicles Act and got the vehicle transferred in his name.
14. In the case of Kunjuraman v. Saramma reported in 1990 (68) Comp Cas 259, the Division Bench of the Kerala High Court held, under Section 31(1) of the Motor Vehicles Act, 1939, a transfer of the ownership of a motor vehicle must precede the report to the registering authority about the transfer of the ownership. This report is intended to make the necessary entries in the certificate of registration. If it is not so reported within the time prescribed, the persons concerned are liable to certain penal consequences. However, the Act nowhere states that non-reporting of the fact of transfer of. ownership will render the transfer inoperative or ineffective. The endorsement of the transfer in the records of the registering authority is not a condition precedent to the transfer, nor does it deal with the legality or validity of the transfer which must be determined by other provisions of law. The actual owner can be different from the registered owner, and if it is proved that the registered owner has transferred the ownership to a different person, the tortious liability to pay compensation for death of injury caused in a motor accident will have to be borne by the transferee, despite the non-registration of the transfer. The registered owner cannot be made liable in such cases.
17 to 19. ....
20. We have already referred to the various decisions supporting the stand of both parties. We are of the view that among all those decisions, the recent pronouncement of the Supreme Court in the case of Dr. T.V. Jose v. Chacko P.M. reported in 2001 ACJ 2059 : AIR 2001 SC 3939 is directly on the point and the same has to be followed in preference to other decisions. We have already referred to the fact that in the said decision the Supreme Court considered similar question, Section 31 of the 1939 Act, which is similar to Section 50 of the Act, 1988, which we are concerned. We have already referred to the conclusion of their Lordships in para 10, wherein they held that there can be transfer of title by payment of consideration and delivery of the vehicle. In other words, according to them, the ownership of the vehicle had been transferred, however, in view of the fact that necessary application has not been made within the time to the registering authority and on the date of the accident, i.e. on 26-1-1995, the transferor-first respondent was the owner of the motor cycle, as concluded in the above decision, we hold that the transferor-first respondent continued to remain liable to third parties as his name continued in the records of the registering authority as owner.
13. It is observed by the Hon'ble Rajasthan High Court in Sajjan Devi v. Mool Chand reported in 2006 (3) ACC 233 : 2006 (4) ALJ 514(EE), as follows:
5. So far as contention of learned Counsel Mr. Sachin Acharya appearing for the transferee that the liability of the entire amount should have been fastened upon the registered owner is concerned, that argument is contrary to law laid down by the Hon'ble Apex Court as the Hon'ble Apex Court held in the cases that registered owner as well as the transferee both are liable to pay the compensation to the claimants as the vehicle stands sold to transferee on patment of consideration to the transferor by the transferee. The registered owner is also liable to pay the compensation as he is deemed under the provisions of the Motor Vehicles Act till the registration is transferred in the name of transferee.
6. In view of the above, the contention of learned Counsel for the appellant that the Tribunal should have fastened the liability only upon the registered owner cannot be accepted.
14. In the decision cited by the learned Counsel for the respondent, Rajasthan State Road Transport Corporation v. Kailash Nath Kothari reported in : 1997 3 LW 502 : AIR 1997 SC 3444, the Hon'ble Supreme Court held as follows:
13. The admitted facts unmistakably show that the vehicle in question was in possession and under the actual control of RSRTC for the purpose of running on the specified route and was being used for carrying, on hire, passengers by the RSRTC. The driver, was to carry out instructions, orders and directions of the conductor and other officers of the RSRTC for operation of the bus on the route specified by the RSRTC.
14. The definition of owner under Section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of 'owner' to registered owner only would in a case where the vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the 'owner' is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on the route. The services of the driver were transferred along with complete 'control' to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. Shri Sanjay Kumar was therefore not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in the bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been some what different. But on facts in this case and in view of conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over original owner can avoid his liability and the temporal employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the concerned employee in the course of his employment while under the command and control of the driver would continue to be on the pay roll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the Instructions, control and command of the conductor and other officers of the RSRTC.
15. The decision cited by the learned Counsel appearing for the second respondent is not applicable to the facts of the present case. In the above decision, one Sanjay Kumar was the owner of the bus and he was indemnified by the Insurance Company. Though the Insurance Company took the plea in its reply to the claim petition, the bus was under the control of RSRTC. Therefore, it was the liability of the RSRTC to pay compensation and the Insurance Company was not liable and its liability was limited to the extent of Rs. 75,000/- in respect of all claim petition arising out of one accident. The Tribunal held that the Insurance Company was liable and in the light of the terms of the policy of the Insurance and relevant provisions of the Act, the liability of the Insurance Company was limited in respect of the accident, a total amount of Rs. 75,000/- only. The Tribunal has passed only the composite award making RSRTC also liable. Only in the said circumstances, the Tribunal has held that the RSRTC in possession of the vehicle was also liable. The liability of the Insurer for the owner was not excluded. The composite award passed by the Tribunal was only confirmed by the Hon'ble Supreme Court.
16. Section 50(6) of the Motor Vehicles Act is as follows:
50. Transfer of ownership - (6) On receipt of a report under Sub-section (1) or an application under Sub-section (2), the Registering Authority may cause the transfer of ownership to be entered in the certificate of Registration.
A bare reading of Section 50(6) clearly points out that unless the Registering Authority causes the transfer of ownership to be entered in the registration certificate, the person whose name appears in that certificate as such an owner would be deemed to be owner of the vehicle for all purposes.
17. In view of the ratio laid down by the Hon'ble Supreme Court in Dr. T.V. Jose v. Chocko P.M. 2001 ACJ 2059 : AIR 2001 SC 3939, followed by this Hon'ble High Court in S.N. Shanmugham v. Shankarlal Jain 2003 2 LW 126 : AIR 2003 Mad 183, this Court holds that all the respondents (including 2nd respondent herein) are liable to pay the compensation amount awarded by the Tribunal. Though it was claimed by the learned Counsel for the appellant that no compensation amount was awarded under the head of loss of income, the Tribunal has awarded a compensation amount with interest at 12% per annum from the date of petition and as this Court feels that the rate of interest is high, by way of adjustment, this Court is not enhancing the compensation amount awarded by the Tribunal.
18. As far as the liability is concerned, this Court holds that the respondents 1 to 3 herein are jointly and severally liable to pay the compensation amount as awarded by the Tribunal. In case the compensation amount is either deposited or collected from the second respondent herein, he is entitled to recover that amount from the third respondent herein by tiling execution petition in the same proceedings.