Priya Vart Choudhury Vs. Bichitra Debnath and ors. - Court Judgment

Excerpt:
- - x) when once the forest authority seized the said vehicle then priyavart chaudhury moved both before chief judicial magistrate as well as sessions judge ofwest tripura district for getting the said vehicle released and accordingly, obtained the bail order and possession of said vehicle after executing necessary bond, as such priyavart choudhury was the owner of said vehicle and is liable to pay compensation and siddhartha saha is not liable to pay compensation. since in kailash nath kothari (supra) the real owner of the bus of sri sanjay kumar, could not ply the bus on the particular route for lack of permit, therefore, the service of driver along with the vehicle were transferred under the control of rajasthan state road transport corporation ('rsrtc') under whose direction and..... r.b. misra, j.1. heard mr. b. das, learned sr. counsel assisted by mr. d. chakraborty, learned counsel for the appellant. also heard mr. p.k. pal, learned counsel for the opposite party nos. 1 to 7 and mr. s. deb, learned sr. counsel assisted by mr. s. chaudhury, learned counsel for the opposite party no. 8.2. the present appeal under section 173 of the motor vehicles act, 1988 (in short called m.v. act) has been preferred against the order dated 16.1.99 passed by the learned member, motor accident claims tribunal, west tripura, agartala (for short, 'learned tribunal') in ts (mac) no. 166 of 1991 awarding an amount of rs. 2,59,000/- with interest @ 12% per annum as compensation with effect from 17.12.91 payable to the opposite party nos. 1 to 7 by the appellant herein/priyavart.....

Judgment:

R.B. Misra, J.

1. Heard Mr. B. Das, learned Sr. Counsel assisted by Mr. D. Chakraborty, learned Counsel for the appellant. Also heard Mr. P.K. Pal, learned Counsel for the opposite party Nos. 1 to 7 and Mr. S. Deb, learned Sr. Counsel assisted by Mr. S. Chaudhury, learned Counsel for the opposite party No. 8.

2. The present appeal under Section 173 of the Motor Vehicles Act, 1988 (in short called M.V. Act) has been preferred against the order dated 16.1.99 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala (for short, 'learned Tribunal') in TS (MAC) No. 166 of 1991 awarding an amount of Rs. 2,59,000/- with interest @ 12% per annum as compensation with effect from 17.12.91 payable to the opposite party Nos. 1 to 7 by the appellant herein/Priyavart Chaudhury.

3. It appears that claimants/opposite party Nos. 1 to 7/preferred T.S. (MAC) No. 166 of 1991 under Section 166 of M.V. Act claiming compensation in reference to the death of Nagendra Debnath, the husband of claimant/opposite party No. 1 and father of opposite party Nos. 2 to 7 in a motor accident occurred on 7.11.91 at around 5.20 a.m. at Bordowali on Agartala-Bishalgarh road while coming back to home from his office at A.D. Nagar Police camp to Battala Bus stop. A canter Truck No. TRL-3847 loaded with wooden logs coming from the southern side to Agartala-Bishalgarh road with an excessive speed, knocked down Nagendra Debnath at Bordowali while going on foot, thereby he sustained severe injuries and had died on the spot. The said accident is said to have occurred due to rash and negligent driving of the aforesaid Truck. At the relevant time, the deceased Nagendra Debnath was working in Police department in the rank of Home guard, in addition to that he was an agriculturist. At the time of his death, his age was 44 years and his monthly salary was Rs. 3,000/.

4. Sri Siddhartha Saha, opposite party No. 8 filed written objection before learned Tribunal stating that he is neither necessary party nor the owner of the aforesaid offending vehicle whereas, appellant herein (opposite party No. 2 before the Tribunal) is the real owner of the offending vehicle as there is no valid agreement between Priyavart Chaudhury and Sidhhartha Saha regarding the said vehicle. According to Siddhartha Saha, the said offending vehicle was insured with the New India Assurance Company Ltd., Agartala Branch in the name of Priyavart Chaudhury the appellant herein, however, through his written objection resisted the claim of the claimants contending that he could not be treated as owner as per definition of the 'owner' of the offending vehicle as indicated in the M.V. Act. The appellant herein has also stated before learned Tribunal that Siddhartha Saha was in actual possession of the offending vehicle as the said vehicle was supplied by him for his benefit by appointing driver, assistant etc. Besides that, the claim of compensation was also controverted on the ground of being inflated, unreasonable and arbitrary. According to the appellant, if the vehicle in question was at all involved in the accident in question, the real owner of the vehicle, namely, Siddhartha Saha is liable to be pay the compensation.

5. The driver of the offending vehicle has not appeared before the learned Tribunal to contest the case.

6. The following issues were framed by learned Tribunal for adjudicating the claim petition:

(i) Whether the vehicle No. TRL-3874 (Canter Truck) involved in the accident which took place on 07.11.91 at about 5.20 a.m. at Bardowali in front of BOC on Bishalgarh-Agartala road?:

(ii) Whether the accident took place due to rash and negligent driving of the vehicle No. TRL-3874 (Canter Truck)?:

(iii) Whether Nagendra Debnath, S/O late Padma Debnath died due to the said accident?:

(iv) Whether the claimant-petitioners are entitled to any compensation, if so, the quantum thereof and who is liable to pay the compensation?

7. On behalf of the claimants, two witnesses were examined besides examining documentary evidences however on behalf of the opposite party, he himself had come for deposition.

8. After going through the documentary evidences, materials on record, learned Tribunal dealt with all the issues and has also ascertained the age of the deceased Nagendra Debnath as 44 years at the time of accident and, keeping in view his monthly income as Rs. 3,000 per month, the actual contribution to his family was assessed at Rs. 1,400/- per month. The multiplier for age group of 42-45 was taken as 15 and total loss of income was calculated as Rs. 1,400 x 12 x 15 = Rs. 2,52,000/-. Besides that, Rs. 2,000/- was indicated as funeral charge and Rs. 5000 as vide its order dated 16.1.99 was Rs. 2,59,000/- with 12% interest per annum payable with effect from the date of filing of the claim petition, i.e. 17.12.91 with certain other directions about the payment in paragraph 9 of the impugned order.

9. Mr. B. Das, learned sr. Counsel has submitted as follows:

(i) Though the offending vehicle was in the name of the appellant herein as by virtue of being a financier, the appellant has leased out the said vehicle to Siddhartha Saha under lease agreement entered into on 5.8.1989 between the appellant Priyavart Chaudhury and Siddhartha Saha. Therefore, later one is to pay the compensation. The said leased agreement was exhibited as Ext. B and was a document before the learned Tribunal for consideration.

(ii) As provided by Section 2(30) of M.V. Act, the 'owner' means in relation to an agreement of lease, the person in possession of the vehicle under that agreement.

(iii) In view of the above definition, the appellant after having entered into an agreement of lease with Siddhartha Saha cannot be treated to be the owner liable to make compensation in reference to the impugned award made by the learned Tribunal. For this purpose, reliance has been placed on the decision of a Supreme Court in Rajasthan State Road Transport Corporation v. Kailash Nath Kothari : AIR1997SC3444 where it was observed that in respect of awarding compensation in reference to an accident by a vehicle hired with driver, hirer at that time in actual possession and control of vehicle would fall within the definition of owner and would be vicariously liable to pay compensation for torts committed by driver even though driver is employee of registered owner.

10. For convenience the relevant Paragraph 17 of Kailash Nath Kothari (supra) is extracted as below:

17. 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 continue the meaning of 'owner' to the 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 has no permit and he in fact was not plying the bus on that 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 conductors 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 that 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 somewhat 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 concerned employee during the course of his 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 his was also transferred to the hirer, the original owner can avoid his liability and the temporary 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 hirer notwithstanding the fact that 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.

11. Learned Tribunal in the impugned order has however observed as below:

(i) On the date of accident, the offending vehicle was not insured.

(ii) Siddhartha Saha has said that he was not the owner of the aforesaid vehicle for that as OPW 1 he gave evidence by stating that appellant herein (opposite party No. 2 before learned Tribunal i.e. Priyavart Chaudhury) is the owner of the said vehicle and all papers of said vehicle are in his name.

(iii) The certificate of registration indicates that the said vehicle was registered in the name of Priyavart Chaudhury and the said vehicle was subject to higher purchase with the 'Motor and General Finance Ltd.' and under the higher purchase agreement, Priyavart Chaudhury purchased the said vehicle and got it registered in his own name accordingly and the said payment was valid up to 16.4.96.

(iv) A lease agreement was executed between Siddhartha Saha as lessee and Priyavart Chaudhury as Lessor but ownership was with Priyavart Chaudhury. The Lessor was having a right of purchase subject to the payment of the amount specified in the lease agreement but since no payment was made, therefore, the ownership remained with Priyavart Chaudhury and hence lessee Siddhartha Saha is not liable to pay any compensation.

(v) Nowhere in the lease agreement the vehicle number of the offending vehicle has been mentioned even if it is admitted that this particular vehicle was leased out by the original owner Priyavart Chaudhury to Siddhartha Saha then what will be the consequence regarding liability of payment of compensation. According to Motor Vehicles Act, 1988 all the vehicles must be insured. If a motor vehicle is driven or allowed to be driven having no insurance then it is an offence punishable with imprisonment which may extend up to three months with fine or both as per Section 196 of the M.V. Act. So, no owner according to legal provision can allow any person or no owner can drive any uninsured vehicle as to do an offence.

(vi) Clause-13 of the aforesaid lease agreement reveals that the vehicle leased out should be insured and each insurance policy shall be in the joint name of the lessor and lessee.

(vii) Normally, the insurance policy shall be in the name of registered owner. If any vehicle is purchased under higher purchase agreement or if any vehicle is leased out or hypothecation agreement is made then the matter shall be reported to the Motor Vehicle Authority and Registering authority shall make an entry in the certificate of registration regarding the existence of the said agreement.

(viii) It was agreed upon that the vehicle shall be insured by the opposite party Siddhartha Saha and if it is not insured then Priyavart Chaudhury shall get it insured and the premium shall be reimbursed from Siddhartha Saha Since Priyavart Chaudhury did not get the vehicle insured, he definitely committed an offence by allowing his vehicle to ply without such insurance policy and it is punishable with imprisonment or fine or both. Definitely the punishment cannot or shall not be suffered by Siddhartha Saha.

(ix) The legal position is that until and unless the entire loan amount is paid to the financer i.e. to the Motor and General Finance Ltd. Priyavart Chaudhury cannot have the proper authority to execute any such lease deed without the consent/permission of the financer and further so long such loan amount is not paid the financer shall have the authority to get back the possession of the concerned vehicle. So, it can safely be said that aforesaid lease deed was executed without any legal force.

x) When once the Forest authority seized the said vehicle then Priyavart Chaudhury moved both before Chief Judicial Magistrate as well as Sessions Judge ofWest Tripura District for getting the said vehicle released and accordingly, obtained the bail order and possession of said vehicle after executing necessary bond, as such Priyavart Choudhury was the owner of said vehicle and is liable to pay compensation and Siddhartha Saha is not liable to pay compensation.

12. It has been submitted on behalf of the learned Counsel for the appellant that lease agreement dated 5.08.1989 was entered into between Priyavart Choudhury, the appellant herein as a Lessor and Siddhartha Saha, as a lessee for five years and the relevant Clause 8, 13, 17(d) extracted from the lease agreement revealing as below:

8. Title, Identification, Ownership of Equipment: Save as otherwise provided in this agreement, no right, title or interest in the vehicle shall pass to the Lessee by virtue of these presents. The Lessee shall at no time contest or challenge the Lessor's sole and exclusive right, title and interest in the vehicle. The Lessor may require plates or markings to be affixed to or placed on the vehicle, indicating the Lessor's interest therein and the interests of its Bankes. The lessor and the Lessee hereby confirm that their intent is that the vehicle shall at all times remain the property of the lessor. The Lessee also agrees and undertakes not to sell, assign, sublet, pledge, hypothecate or otherwise encumber or suffer a lien upon or against the vehicle or remove the vehicle from the factory or office or site where originally put to use or located, without the prior consent of the Lessor in writing, which consent the Lessor agrees will not be unreasonably withheld. Conditioned upon the Lessee's compliance with the fulfillment of the terms and conditions of this Agreement, the Lessee shall have the right to have exclusive peaceful possession, operation and use of the vehicle for the full terms of the lease and any renewals thereof.

13. Insurance : The Lessee shall for the benefit of and on behalf of the Less or obtain and maintain for the entire term of this Agreement at its own expense insurance against normal risks and such other risks of loss as are customarily insured against it on the type of vehicle leased hereunder and by business in which the Lessee is engaged and in such amount, provided however, that the amount of insurance against Lessor damage to the vehicle shall not be less than the original cost of the vehicle.

Each Insurance policy will be in the joint names of the Lessor and the Lessee and note the names of the Lessor and its designate Banker as loss payees. The Lessee shall furnish to the Lessor a Certificate of Insurance or other satisfactory evidence that such insurance cover is in effect. All Insurance Premium should be borne and paid by the Lessee during the terms of this Agreement. It is further agreed between the parties hereto that in the event of the Lessee not furnishing evidence of insurance cover within a period of 30 days from the date of installation of the vehicle, the Lessor may in its absolute discretion arrange such insurance cover as may be needed. In such event, it is agreed between the parties hereto that the cost of each insurance taken by the Lessor or the amount of premium paid by the Lessor shall be forthwith reimbursed by the Lessee.

17(d) The Lessee further agrees that at no time during the period of this Agreement which is non-cancelable, will the lessee attempt or cause to capitalize the leased vehicle on Lessee's Balance Sheet and the Lessee and the Lessor agrees that ownership of the Vehicle during the terms of the lease including any renewal thereof shall vest with the Lessor.

13. The relevant testimony/deposition of Mani Pal Singh, O.P.W. No. 1 is also extracted as below:

I am acquainted with the fact of the present case. The registered owner of Canter Truck No. TRL 3874 is Priyavart Choudhury. Said vehicle was a new vehicle which was given to Siddhartha Saha under a lease agreement. The lease agreement has been filed and on identification it is marked as Ext.-B. Said deed was executed by son or Priyavart Choudhury namely Sri Rajendar Singh on behalf of Priyavart Choudhury as his Attorney. That document singed also by Siddhartha Saha. His father namely Atrial Kanti Saha also signed the deed as a Guarantor. Sidhartha Saha used to pay the installment money towards the price of said vehicle. Said vehicle was handed over to Siddhartha Saha immediately after execution of lease deed. It was settled that Siddhartha Saha shall only pay the monthly instalment lease rent to us and all together expenditures and liabilities such as payment of wages of the Driver and Assistants were to be borne by said Sidhartha Saha. All along and till now said vehicle remained under the possession and control of said Siddhartha Saha. At the relevant point of accident on 7.11,91 said vehicle remained under possession and control of Siddhartha Saha.

The testimony of attorney or Priyavart Choudhury in examination in chief was also reiterated in his cross-examination with no deviation.

14. For convenience the testimony and examination in chief of Siddhartha Saha O.P.W. No. 2 is also extracted herein below:

The said vehicle was seized by the Forest authority and thereafter on behalf Priyavart Choudhury one Narendra Ch. Saha, the Attorney of Priyavart Choudhury made a bail prayer before the forest authority but it was turned down. Thereafter they appeared before the court of learned C.J.M. and Learned Sessions Court, Agartala and obtained the bail order of the vehicle and furnish bail bond accordingly for releasing the vehicle. Forest Authority also issued notice for confiscation of the vehicle to Priyavart Choudhury and it was received by Narendra Saha as Attorney of Priyavart Choudhury and he gave reply also. In connection with the present accident there was a criminal case wherein the bail prayer was made by Priyavart Choudhury and the vehicle was released on furnishing bail bond filed by Rajendra Singh on behalf of Priyavart Choudhury.

In the cross-examination, it has been indicated by Shri Siddhartha Saha, that the aforesaid Vehicle TRL 3874 was taken by him for three years under the lease agreement. According to him, he was paying lease instalments against the rental as per lease agreement.

15. For convenience the definition of 'owner' as provided in Section 2(19) of the M.V. Act, (old) is as below:

2. (19). 'Owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor and in relation to motor vehicle which is the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement:

For convenience the definition of 'owner' as provided in Section 2(30) of the M.V. Act, (new) is as below:

2. (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.

16. On perusal of the relevant extract of the lease agreement the testimony of Sri Mani Paul Singh and the testimony of Siddhartha Saha it could be seen that in terms of the lease agreement, the said Vehicle TRL 3874, was taken by Siddhartha Saha whereas, the registered owner of the said vehicle was Priyavart Choudhury, however, the said vehicle was handed over to Siddhartha Saha, after execution of lease agreement. It was only Siddhartha Saha who was using the said vehicle and was also gaining returns from it. Sidhartha Saha was also paying monthly instalments as lease rent to Priyavart Choudhury and all other expenditures and liabilities such as payment of wages of the driver and of Assistants were to be borne by Siddhartha Saha on the day of accident the said vehicle was in actual possession and control of Siddhartha Saha i.e. to say for all purposes, the control and utilization of Vehicle No. 3874 was with Siddhartha Saha.

17. The definition of 'owner' was not exhaustive as provided under Section 2(19) of the Motor Vehicles Act (Old), however, in view of the new definition, of 'owner' as provided in Section 2(30) of the Motor Vehicles Act, 1988 (Amended) the 'owner' of Registered vehicle in reference to the agreement of lease would be a person in possession of vehicle under lease agreement. From this point of view, prima-facie Siddhartha Saha is to be treated for all purposes the owner of the vehicle.

18. In view of the decision of Kailash Nath Kothari (supra) the definition of owner under Section 2(19) of the Act was not also found exhaustive, therefore, it was to be given a wider meaning. The expression 'owner' was said to include, in a given case, the person who was actually in possession and control of the vehicle and under whose directions and commands, the driver of the vehicle was obliged to operate the vehicle. It was also observed in Kailash Nath Kothari (supra) that to confine the meaning of 'owner' to the 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 employees during the course of his employment and it would be a question of fact in each case as to on whom can various liability be fastened in the case of an accident. Since in Kailash Nath Kothari (supra) the real owner of the Bus of Sri Sanjay Kumar, could not ply the bus on the particular route for lack of permit, therefore, the service of driver along with the vehicle were transferred under the control of Rajasthan State Road Transport Corporation ('RSRTC') under whose direction and instruction and command the driver as well as the vehicle was being used and passengers were being carried by the said vehicle/bus fare receipt by 'RSRTC' and Sanjoy Kumar the real owner of Bus/vehicle was not at all answerable to the passengers travelling in the bus on a particular route as the payment of fare were being paid to RSRTC. In those circumstances, it was observed that the general proposition of law and the presumption arising there from 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 concerned employee during the course of his employment and within the scope ofhis authority, is a rebuttable presumption.

19. It was also observed that 'If the original employer is able to establish that when the servant was lent, the effective control over his was also transferred to the hirer, the original owner can avoid his liability and the temporary 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 hirer notwithstanding the fact that the driver would continue to be on the pay roll of the original owner.

20. It is revealed from the testimony of Mani Pal Singh O.P.W. 1, as well as Clause 8 of the lease deed agreement that the possession of the Vehicle No. TRL 3874 was handed over to Siddhartha Saha after execution of lease deed dated 5.8.1989 and the said vehicle remained all along in the possession, control, use and in command of Siddhartha even at the time of accident on 7.11.1991. The Siddhartha Saha was paying monthly instalments to Priyavart as well as was paying wages to the Driver and assistants of the vehicle in question. Therefore, in reference to the definition of 'owner' as provided under Section 2(30) of M.V. Act, even though the said vehicle was registered in the name Priyavart Choudhury, however, by virtue of agreement of lease deed dated 5.8.1989, the 'owner' would be Siddhartha Saha who shall be responsible vicariously for the tort committed by the driver of the said vehicle during his employment.

21. Being guided by the settled principles as indicated in Kailash Nath Kothari (supra), also I am of the considered view that it is Siddhartha Saha, who is said to be owner of the vehicle for the purposes of making compensation in the said case. Therefore, the impugned order is set aside to the extent that the award of Rs. 2,59,000/- with 12% interest per annum with effect from 17.12.1991 shall be payable by Siddhartha Saha, to the actual claimants-Opposite party Nos. 1 to 7.

22. In view of the above observations, the MAC appeal is allowed.