Kunji Beary vs Khatijamma

S. Sujatha, J.—This appeal is directed against the Judgment and Order passed by the Motor Accident Claims Tribunal, Puttur [the ''Tribunal'', for short] in MVC No.722/1999.

Briefly stated the facts are:

That the widow of the deceased B.P. Moidu filed the claim petition before the Tribunal seeking compensation for the death of said B.P. Moidu in the motor vehicle accident which occurred on 19-3-1998 alleging negligence on the driver of the jeep bearing registration No. CNX-1583 [offending vehicle]. It was contended that the deceased was travelling in the offending vehicle from Kadaba to Gandithadka along with goods, namely, tiles. Due to the impact of the accident, the jeep fell down upon the deceased with full load of tiles, his body was crushed under the jeep as a result of which he died on the spot due to the grievous injuries sustained. The appellant and the other respondents herein appeared through their Counsel and the appellant had filed written statement, inter alia, denying all the allegations made in the petition. On evaluation of the material evidence on record, the Tribunal allowed the petition in part, awarded total compensation of Rs. 2,42,000/- to the legal representatives of the deceased B.P. Moidu with interest at the rate of 6% per annum from the date of petition till the date of deposit or its recovery. The liability was fastened on the appellant herein, to satisfy the Award. Aggrieved by the same, the appellant is in appeal.

The learned counsel appearing for the appellant would contend that the appellant was only a driver of the offending vehicle and not the owner. By inadvertence though it was admitted in the written statement that he was the owner of the offending vehicle, the same was sought to be amended to set right the mistake which had occurred due to oversight, on the instructions given by the appellant since the appellant was suffering from heart disease and taking treatment in the hospital at Mangalore. However, the testimony of the appellant was, he was not the owner of the offending vehicle and he was only a driver. To substantiate the same, the appellant had marked Exhibit.R3/B-register extract issued by the Regional Transport Officer, Chikmagalur which discloses that one Sri. Sheshappa Raj was the registered owner of the offending vehicle at the time of the accident and thereafter it was transferred in the name of Sri. N. Chandrashekara with effect from 15-10-1998 as per the contents in the said ''B'' register extract.

The learned Counsel further submitted that the definition clause of section 2[30] of the Motor Vehicles Act, 1988 [''Act'', for short] defines the ''owner'', means a person in whose name a motor vehicle stands registered. Indisputably, the motor vehicle was registered in the name of Sri. Sheshappa Raj at the time of the accident. This vital material evidence placed on record was ignored by the Tribunal while fixing the liability on the appellant. In support of his contentions, the learned Counsel placed reliance on the following judgments:

[a] ''M.T. Sidda Shetty And Another v. P.H. Gowda and another'', reported in ILR 2010 Kar 3480 : ((2010) 4 AIR Kar R 296).

[b] ''Siddaiah and another v. Thippaiah and others'' in RSA No.135/2012 [DD-3-8-2015] : (Reported in (AIR 2015 SC 184).

[c] ''United India Insurance Co., Ltd., and another v. Samir Chandra Chaudhary'' reported in [2005] 5 SCC 784 : (2005 AIR SCW 5195)

[d] '' Sita Ram Bhau Patil v. Ramchandra Nago Patil [Dead] by Lrs. and another'', reported in [1977] 2 SCC 49 : (AIR 1977 SC 1712).

[e] ''Ashis Kumar Das and others v. Rekha Mukherjee'', reported in [2005] 2 ICC 211 [Cal.] [DB].

On the other hand, learned Counsel appearing for the claimant contended that the appellant was the owner of the offending vehicle at the time of the accident which was specifically admitted by the appellant in the written statement filed before the Tribunal. The amendment of the written statement sought by the appellant was rejected and the same has reached finality. The admissions made by the appellant in the written statement cannot be discarded merely on the ''B'' register extract/Exhibit R3. The Tribunal was justified in giving evidentiary value to the admission made in the written statement.

The learned counsel contended that it is based on the pleadings, issues were framed by the Tribunal to adjudicate the matter. No issue was framed regarding ownership of the vehicle.

Learned counsel further placing reliance on the judgment of this Court in the case of ''C.R. Satisha v. Muniswamy and others'', reported in ILR 1997 Kar 2546 : (AIR 1997 Kar 358) submitted that the phrase ''owner'' defined under section 2(30) of the Act has to be interpreted in a wider perspective, more particularly, in the light of the phrase ''agreement of lease'' or ''agreement of hypothecation, the person in possession of the vehicle under that agreement''. He contended that the agreement of lease or an agreement of hypothecation may be oral and in view of the specific admission made by the appellant in the written statement as owner of the vehicle and in possession of the vehicle as contended by the appellant in his evidence, this Court has to construe the appellant as the owner of the offending vehicle. The appellant cannot argue on technicalities to escape the liability. The learned counsel further placed reliance on Order 12, Rule 6 of CPC in support of his contentions. Accordingly, he seeks for dismissal of the appeal.

Having heard the learned counsel appearing for the parties and perusing the material on record, the only point that arises for consideration in this appeal is whether the Tribunal was justified in fastening the liability on the appellant to satisfy the Award?

It is pertinent to note that paragraph-3 of the written statement filed by the appellant before the Tribunal runs thus:

''that this respondent admits that he is the owner of Jeep, bearing the Registration No.CNX 1583.''

The written statement was filed on 4-11-2000. IA No.V dated 24-6-2008 was filed by the appellant under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure to insert paragraphs 9[a], 9[b] and 9[c] after paragraph 9, the same was allowed. Written statement was amended as per Order dated 25-6-2008. Paragraphs 9[a], 9[b] and 9[c] of the amended written statement reads thus:

''9[a] That at the time of accident this respondent was only the driver but not the RC owner of the vehicle Jeep bearing reg. No. CNX 1583 and that the RC of the said vehicle stood in the name of one Seshappa Rai at the time of accident. Hence the petition is bad for non-joinder of necessary party.

9[b] That the petitioner has pleaded in her petition that the deceased was employed under the respondent, hence she ought to file her claim petition before the labour Court. Hence this Court has no jurisdiction.

9[c] That the petitioner is not legal representative or heir of the deceased B.P. Moidu Beary. The legitimate legal heirs are his first wife Kathija d/o. Pundoor Mahammad Kunhi and children namely Beepathuma, Jainabi, Rukiya, Nebisa, Mahammad Kunhi, Sakina. That the petitioner by suppressing this fact has filed the above petition only to make wrongful gain from this respondent therefore the petition is liable to be dismissed summarily.''?

Subsequently, IA No. VI dated 28-6-2008 was filed by the appellant to amend paragraph-3 of the written statement to replace the word ''owner'' by ''driver'' i.e., to delete the word ''owner'' and add in its place the word ''driver''. This application IA No.VI came to be rejected by Order dated 2-7-2008. The same has reached finality.

The only dispute is as regards the admission in paragraph 3 of the written statement vis-a-vis Ex-R3, B-Register extract. It is significant to note that in view of the amendment carried out to the written statement as per paragraphs 9[a], the admission made in paragraph-3 of the written statement gets diluted. There is dichotomy in the written statement. The Tribunal ought to have framed an issue relating to the ownership of the offending vehicle. Further, it is observed that in the facts and circumstances of the case, Order 12, Rule 6 of CPC would not be attracted. Paragraph 9[a] of written statement speaks counter to paragraph-3. The finding given by the Tribunal that in the amended written statement, the appellant has admitted himself as R.C. owner of the vehicle is contrary to the records. In fact, as per the amended written statement, paragraph 9[a] states that the appellant was only a driver but not the R.C. owner of the offending vehicle. This vital material found in the records was lost sight of by the Tribunal. Thus, the matter requires a remand to the Tribunal to reconsider the matter as per the records. For the reasons aforesaid, the judgments cited by the parties are not relevant at this point of time. Without expressing any opinion on the merits or demerits of the case, the matter is remanded to the Tribunal, keeping open all the contentions to be urged by the parties. The Tribunal shall reconsider the matter afresh in accordance with law providing an opportunity of adducing evidence, if any, to both the parties including the impleadment of necessary parties, if the need arises.

Accordingly, the appeal is allowed. The impugned Judgment and Order is set aside and the matter is remanded to the Tribunal as aforesaid.

It is needless to observe that the Tribunal shall dispose of the matter as expeditiously as possible.

Registry shall send the lower Court records to the Tribunal forthwith.