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Monday, April 7, 2014

Accident claim - M.V. Act - Liability of Requisition department - State of Assam - Accident occurred before release the vehicle to the original owner - High court failed to take notice sec. 5 of Assam Act and exempted state government from liability to pay compensation - Apex court set aside the high court order and held that Therefore, Respondent No. 1 was squarely covered under the definition of “owner” as contained in Section 2(30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of “owner” a person in possession of a 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. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that Section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act. The Tribunal also erred in accepting the allegation of Respondent No. 2 that the vehicle was released on the date of the accident at 10.30 a.m. and the accident occurred at 10.30 a.m. without any evidence even though in the claim petition, it was stated that the accident had occurred at 10.15 a.m. = Purnya Kala Devi .... Appellant(s) Versus State of Assam & Anr. .... Respondent(s)= 2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41389

 Accident claim - M.V. Act - Liability of  Requisition department - State of Assam - Accident occurred before release the vehicle to the original owner - High court failed to take notice sec. 5 of  Assam Act and exempted state government from liability to pay compensation - Apex court set aside the high court order and held that  Therefore,  Respondent  No.  1  was  squarely covered under the definition of “owner” as contained  in  Section  2(30)  of
the  1988  Act.   The  High  Court  failed  to  appreciate  the   underlying legislative intention in including in the definition of “owner” a person  in possession of a 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.  The High Court  further  failed to appreciate the legislative intention that the  registered  owner  of  the vehicle should not be held liable if the vehicle was not in  his  possession and control.  The High Court also failed to appreciate that Section  146  of the 1988 Act requires that no person shall use or cause or allow  any  other
person to use a motor vehicle in a public place without an insurance  policy meeting the requirements of Chapter  XI  of  the  1988  Act  and  the  State Government has violated the statutory  provisions  of  the  1988  Act.   The Tribunal also erred in accepting the allegation of  Respondent  No.  2  that the vehicle was released on the date of the accident at 10.30 a.m.  and  the accident occurred at 10.30 a.m. without any  evidence  even  though  in  the claim petition, it was stated that the accident had occurred at 10.15 a.m.    =

the High Court  held  that  the  claimant/appellant  herein  is
entitled to a sum of Rs. 1,94,400/- as compensation for  the  death  of  her
husband in the motor vehicle accident and  the  same  is  payable  by  Abdul
Salam-who was the registered owner of the vehicle at the relevant  point  of
time and not by the State Government.=

 “5.    Release  from  requisition.  (1)  The  officer   or   authority
      requisitioning a vehicle may, at any time, release  the  vehicle  from
      requisition and when it is decided so to do, a notice in writing shall
      be served on the owner to take delivery of the vehicle on or with such
      date and from such place and such person as may be specified therein.”

12)   It is clear that Section  5(1)  of  the  Assam  Act  provides  that  a
vehicle may be released from requisition after service of notice in  writing
on the owner to take delivery of the vehicle on or with such date  and  from
such place or from such person as may be specified therein and  with  effect
from such date no liability for compensation shall lie with the  officer  or
authority.  In spite of our repeated  questions,  learned  counsel  for  the
State of Assam has brought to our notice only the  above-quoted  plea  taken
by the SDO (C) and has not placed any material, such as  notice  in  writing
served on the owner, to prove that the delivery of vehicle was  effected  on
such date and time in terms of Section 5(1) of the Assam Act.
13)   Though the above point was  pressed  into  service,  the  High  Court,
without adverting to Section 5 of the Assam Act, merely on the basis of  the
definition of “owner” as  contained  in  Section  2(30)  of  the  1988  Act,
mulcted the award payable by the owner  of  the  vehicle.   The  High  Court
failed to appreciate that at the relevant time  the  offending  vehicle  was
under the requisition of Respondent  No.  1  –  State  of  Assam  under  the
provisions of the Assam Act.   Therefore,  Respondent  No.  1  was  squarely
covered under the definition of “owner” as contained  in  Section  2(30)  of
the  1988  Act.   The  High  Court  failed  to  appreciate  the   underlying
legislative intention in including in the definition of “owner” a person  in
possession of a 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.  The High Court  further  failed
to appreciate the legislative intention that the  registered  owner  of  the
vehicle should not be held liable if the vehicle was not in  his  possession
and control.  The High Court also failed to appreciate that Section  146  of
the 1988 Act requires that no person shall use or cause or allow  any  other
person to use a motor vehicle in a public place without an insurance  policy
meeting the requirements of Chapter  XI  of  the  1988  Act  and  the  State
Government has violated the statutory  provisions  of  the  1988  Act.   The
Tribunal also erred in accepting the allegation of  Respondent  No.  2  that
the vehicle was released on the date of the accident at 10.30 a.m.  and  the
accident occurred at 10.30 a.m. without any  evidence  even  though  in  the
claim petition, it was stated that the accident had occurred at 10.15 a.m.    

In the light of what is stated above, we accept  the  stand  taken  by
the appellant and hold that the appellant/claimant is entitled to receive  a
sum of Rs. 1,94,400/- as fixed by the High Court with interest at  the  rate
of 9% per annum from the date of claim petition till  the  date  of  deposit
and the same is payable  by  the  State  of  Assam.   The  amount  shall  be
deposited before the Tribunal within a period of eight weeks from  the  date
of receipt of copy of this  order  and  on  such  deposit  being  made,  the
appellant – Purnya Kala Devi is permitted to withdraw the same.  The  appeal
is allowed on the above terms.
2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41389
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
                                                              REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION

                       1 CIVIL APPEAL NO. 1672 OF 2010


Purnya Kala Devi                              .... Appellant(s)

            Versus

State of Assam & Anr.                              .... Respondent(s)


                               J U D G M E N T




P. Sathasivam, CJI.
1)    This appeal is directed against the impugned final judgment and  order
dated 04.01.2007 passed by the Gauhati High Court in MAC Appeal  No.  30  of
2003 whereby the High Court  held  that  the  claimant/appellant  herein  is
entitled to a sum of Rs. 1,94,400/- as compensation for  the  death  of  her
husband in the motor vehicle accident and  the  same  is  payable  by  Abdul
Salam-who was the registered owner of the vehicle at the relevant  point  of
time and not by the State Government.



2)    Brief Facts:

a)    The appellant/claimant is a widow and mother  of  four  children.   On
16.02.1993, at about 10:15 a.m., the  claimant’s  husband  died  in  a  road
accident by a speeding bus belonging  to  Md.  Abdul  Salam  which  was  not
insured and was under requisition of the State Government  at  the  relevant
time.

b)    The appellant filed MAC Case No. 34 of 1993 before the Motor  Accident
Claims  Tribunal  (in  short  ‘the  Tribunal’),   Darrang,   Mangaldai   for
compensation of  Rs.  2,00,000/-  against  the  registered  owner–Md.  Abdul
Salam. Sub Divisional Officer (Civil), Udalguri and the State of Assam  were
also impleded as parties in the said case.

c)    The registered owner of the vehicle filed his  reply  contending  that
at the relevant  time  the  vehicle  was  under  requisition  of  the  State
Government and, hence, the liability to pay  compensation  is  that  of  the
State Government.   The SDO, Udalguri,  Respondent  No.  2  herein,  on  his
behalf and on behalf of the State  Government,  filed  a  written  statement
denying any of its liability and averred that “the vehicle was  released  on
the same date at 10.30”.  The SDO further averred that “as  per  the  police
report, in the absence of driver, the Handiman of the  mini  bus  drove  the
bus without any permission from the police and occurred the accident”.

d)    By judgment dated 11.07.2002, the  Tribunal  directed  the  registered
owner to pay a sum of Rs. 1,41,400/- with interest at the  rate  of  9%  per
annum to the appellant/claimant and absolved Respondent Nos. 1 and 2  herein
from any liability.

e)    Being aggrieved by the said order, the appellant filed MAC Appeal  No.
30 of 2003 in the Gauhati High Court not only for  higher  compensation  but
also for absolving Respondent Nos. 1 and 2 herein from any liability.

f)    By impugned order dated 04.01.2007, though  the  High  Court  enhanced
the compensation by Rs. 50,000/-, it was  held  that  the  State  Government
cannot be held liable for paying compensation to  the  appellant  under  the
Motor Vehicles Act, 1988 (for short “the 1988 Act”)  because  the  liability
to pay compensation under  the  said  Act  is  upon  the  registered  owner,
insurer or driver of the vehicle or all or any of them.

g)    Aggrieved by such direction, the appellant has filed  this  appeal  by
way of special leave.

3)    Heard Mr. Jatin Zaveri, learned counsel  for  the  appellant  and  Mr.
Navnit Kumar, learned counsel for the respondents.

Contentions:

4)    The appellant has filed  the  above  appeal  contending  that  at  the
relevant time, the offending vehicle was  under  requisition  of  the  State
Government and hence, under the provisions  of  the  Assam  Requisition  and
Control of Vehicles Act, 1968 (for short “the Assam Act”), Respondent No.  1
is liable to pay compensation.

5)    On the other hand, it is the stand of Respondent  No.  1  that  unlike
the Motor Vehicles Act, 1939 (for short ‘the 1939 Act’),  unless  a  vehicle
is registered in the name of a person, he cannot be regarded  as  the  owner
of the vehicle under the 1988 Act.  Under Section 2(30) of the 1988  Act,  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,  his  guardian
would be regarded as the owner.  The said provision 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 he is in  possession
of the vehicle on the basis of a hire-purchase agreement or an agreement  of
lease or an agreement of hypothecation.  As such, Respondent No. 1,  neither
being a registered owner of the vehicle  nor  being  in  possession  of  the
vehicle pursuant to a hire-purchase agreement or an agreement  of  lease  or
an agreement of hypothecation, is not liable to pay any compensation to  the
appellant/claimant.  On facts, it is stated that the then  SDO(C),  Udalguri
requisitioned the  vehicle  (Bus)  bearing  Registration  No.  AMZ  6858  on
14.02.1993 which was placed on Government  Duty.  On  16.02.1993,  at  10.30
a.m., when the said vehicle was taken out of the Police Station  Campus  and
the driver took a turn  towards  Udalguri  Tiniali,  a  cyclist  named  Dhan
Bahadur Chetri (since deceased), a chowkidar at Udalguri Girls H.S.  School,
who was coming towards Udalguri town from his school, was  knocked  down  by
the said vehicle leading to his death.  The accident took  place  after  the
release of the said vehicle, i.e., on 16.02.1993 and the  offending  vehicle
was without insurance at the time when it was being plied and met  with  the
accident.  Under Section 168(1) of the 1988 Act, it is the insurer or  owner
or driver of the vehicle or any of them who could have been  liable  to  pay
compensation.   As  such,  the  State  Government  is  not  liable  to   pay
compensation to the appellant as it had only requisitioned the  vehicle  and
was neither the owner nor the driver of the offending  vehicle  in  view  of
the provision as envisaged in Section 2(30) of the 1988 Act.  The  offending
vehicle had already  been  released  by  the  State  Government  before  the
accident and the same was evident  from  the  records.   The  appellant  had
already  been  awarded  compensation  by  the  Tribunal  which  was  further
enhanced by the High Court  and  any  dispute  regarding  the  liability  of
paying compensation by the State Government  lies  with  the  owner  of  the
vehicle and the appellant has no legal right to  agitate  her  case  in  the
present facts and circumstances and remedy sought for by the  appellant  was
already allowed by the  Tribunal  and  the  High  Court.   Furthermore,  the
vehicle in question in the instant case was  driven  by  the  owner  of  the
vehicle without any valid insurance policy at  the  time  of  the  accident.
The High  Court  has  given  the  correct  interpretation  of  the  relevant
provisions of law.  The impugned judgment and order dated 04.01.2007  passed
by the High Court is justified on all accounts.

Discussion:

6)    Section 2(19) of the 1939 Act defined the expression “owner”  to  mean
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.

7)    On 26.04.1969, the Assam Act came into force.   Section  2(b)  of  the
Assam Act defines the  expression  “owner”  almost  identically  as  defined
under Section 2(19) of the 1939 Act which is as under:-

      “2(b) “owner” includes where the person in possession of  the  vehicle
      is minor, the guardian of such a minor, and in relation to  a  vehicle
      which is the subject  of  a  hire-purchase  agreement  the  person  in
      possession of the vehicle under that agreement;”

8)    The 1939 Act was consolidated and amended by the  1988  Act.   Section
2(30) of the 1988 Act defines “owner” to mean as under:-

      “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.”

9)     It  is  not  in  dispute  that  on  14.02.1993,  the  SDO,   Udalguri
requisitioned a Bus belonging to  Md.  Abdul  Salam  under  the  Assam  Act.
While under requisition, on 16.02.1993, the Bus involved in an accident  and
killed the husband of the  appellant  at  10.15  a.m.   At  that  time,  the
vehicle was not insured.

10)   The appellant/claimant claimed compensation of Rs. 2,00,000/-  against
the owner of the vehicle, i.e., Md. Abdul Salam as  well  as  the  State  of
Assam-Respondent  No.  1  herein.  The  registered  owner  filed  the  reply
contending that Respondent No. 1 was liable to pay compensation.   The  SDO,
Udalguri, Respondent No.  2  herein,  filed  written  statement  before  the
Tribunal alleging that the vehicle was released on the date of  accident  at
10.30 a.m.  In this regard, it is useful to refer the  stand  taken  by  the
Sub-Divisional Officer (SDO)(C), Udalguri on behalf of the  State  of  Assam
in the following terms:

      “The fact of the case is that the vehicle was requisitioned by the Sub-
      Divisional Officer (Civil) Udalguri on public demand.  The vehicle was
      handed to O/C of Police Udalguri for their duties.

            As per police report in the absence of driver  the  Handiman  of
      the Mini Bus drove the bus without any permission from the police  and
      occurred the accident.

            The vehicle was released on same date at 10.30 and the  accident
      occurred at 10.30.”

11)   Though it was stated that the vehicle was released on  the  same  date
at 10.30 a.m., the State or its officers failed to  place  and  substantiate
the same by placing any material.  It is relevant to refer Section  5(1)  of
the Assam Act, which reads as under:

      “5.    Release  from  requisition.  (1)  The  officer   or   authority
      requisitioning a vehicle may, at any time, release  the  vehicle  from
      requisition and when it is decided so to do, a notice in writing shall
      be served on the owner to take delivery of the vehicle on or with such
      date and from such place and such person as may be specified therein.”

12)   It is clear that Section  5(1)  of  the  Assam  Act  provides  that  a
vehicle may be released from requisition after service of notice in  writing
on the owner to take delivery of the vehicle on or with such date  and  from
such place or from such person as may be specified therein and  with  effect
from such date no liability for compensation shall lie with the  officer  or
authority.  In spite of our repeated  questions,  learned  counsel  for  the
State of Assam has brought to our notice only the  above-quoted  plea  taken
by the SDO (C) and has not placed any material, such as  notice  in  writing
served on the owner, to prove that the delivery of vehicle was  effected  on
such date and time in terms of Section 5(1) of the Assam Act.
13)   Though the above point was  pressed  into  service,  the  High  Court,
without adverting to Section 5 of the Assam Act, merely on the basis of  the
definition of “owner” as  contained  in  Section  2(30)  of  the  1988  Act,
mulcted the award payable by the owner  of  the  vehicle.   The  High  Court
failed to appreciate that at the relevant time  the  offending  vehicle  was
under the requisition of Respondent  No.  1  –  State  of  Assam  under  the
provisions of the Assam Act.   Therefore,  Respondent  No.  1  was  squarely
covered under the definition of “owner” as contained  in  Section  2(30)  of
the  1988  Act.   The  High  Court  failed  to  appreciate  the   underlying
legislative intention in including in the definition of “owner” a person  in
possession of a 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.  The High Court  further  failed
to appreciate the legislative intention that the  registered  owner  of  the
vehicle should not be held liable if the vehicle was not in  his  possession
and control.  The High Court also failed to appreciate that Section  146  of
the 1988 Act requires that no person shall use or cause or allow  any  other
person to use a motor vehicle in a public place without an insurance  policy
meeting the requirements of Chapter  XI  of  the  1988  Act  and  the  State
Government has violated the statutory  provisions  of  the  1988  Act.   The
Tribunal also erred in accepting the allegation of  Respondent  No.  2  that
the vehicle was released on the date of the accident at 10.30 a.m.  and  the
accident occurred at 10.30 a.m. without any  evidence  even  though  in  the
claim petition, it was stated that the accident had occurred at 10.15 a.m.
14)   In the light of what is stated above, we accept  the  stand  taken  by
the appellant and hold that the appellant/claimant is entitled to receive  a
sum of Rs. 1,94,400/- as fixed by the High Court with interest at  the  rate
of 9% per annum from the date of claim petition till  the  date  of  deposit
and the same is payable  by  the  State  of  Assam.   The  amount  shall  be
deposited before the Tribunal within a period of eight weeks from  the  date
of receipt of copy of this  order  and  on  such  deposit  being  made,  the
appellant – Purnya Kala Devi is permitted to withdraw the same.  The  appeal
is allowed on the above terms.

                            ...…………….…………………………CJI


                                 (P. SATHASIVAM)






                              .…....…………………………………J.


                              (RANJAN GOGOI)




                              .…....…………………………………J.


                              (N.V. RAMANA)


NEW DELHI;
APRIL 07, 2014.
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