€’ HIGH COURT OF CHHATTISGARH M..A. No. bf? é /2oog w APPELLANPS :K 1. mt. Kamla @pta wd/o Late Pradeep CLAIMANTS GApta. age 32 years, Occupation- Household. 2. Nitish Kumar wpta s/o Late Pradeep Kumar Gupta, age 12 years, Occup ati on-Student . VER'SUS RESPONDENTS : v 1w. Vijay Kumar Agrawal s/o Jagat Ram NON APPLICANTS y/ Agrawal, age 34 years, r/o village atthalgaon, P.S. & Tehsil ?atthal- gaon, Distt. Jashpur, (LG. wNe <— A (SUBsEQUENT PURCHASER) Buahiyar Sai s/o Madan sai, Caste— Gond, age 30 years Occupation Driver, r/o village Kerakachhar, P.s.r& Tehsil Patthalgaon, District " Jashpur, C. G. (DRIVER) 3. The New India Insurance Company Limited, Transport Nagar, Korba, VDistrict Korba: /C.G. ( INSURER) contd. . 2 I § 3. Manish Kumar Gupta s/o Late Pradeep Kumar Gupta, age 10 years, Occupation-Student . P.~Rw.\%~ . - .r Appellant no. 2 and 3 minor, through Pwi‘i’“ . their natural guardian & mother appellant no. 1 mt. Kamla Gupta (kw/u / wd/o Pradeey Kumar Gupta. All by Caste-Teli, r/o village sitapur, P.s. & Tehsil Sitapur, Distt. mrguja, C.G. Bifna Ram s/o mansai, aged about SO years . 5.‘ Dhangiri s/c Lethe, aged about k f7 45 year$, Caste-Uraon. 6. Lan’gda Ram s/o Sandhya, age 42 K S years, Caste—Uraon. Jhadi s/o &onha, aged about 38 >7. %L years , Caste-Uraon. 8.1 Fagni s/o’ Dhansai', aged‘about 55 years, Caste-Uraon. Xx 173 OF TaE MOTOR VEHxcLEs ACT. MISCELLANEOUS APPEAL U/s. 4 to 8 all r/o village Petla, P.S. §_¢ Tehsil sitapur, 'Dis'tt; mrguja. C.G. Non-applicant no. ,\‘ \r .Mr .~ (REGIsrERED mmERs) W DB: Hon’ble I. M. QUDDUSI & Hon’ble G. MINHAJWDIN, JJ w M. A. No.473 2004 APPELLANTS: Smt. Kamla Gupta and others x Vs. Vijay Kumar Agmwal and others M. A No. 69412004 Vijay Kumar Agrawal R VEHICLES MI$C. APPEALS ACT 1988 UNDER SECTION 173 OF THE MOTOR Appearance: x RESPONDENTS: MA. respondent Mr. No.694/2004. Sudhir no.3 Agmwal in M.A.No. 85 473/2004 Mr. Ashish and Beck’ respondent counsel no.5 for in sel for respondent No.2 . 4 1'11 M.A.694/2004. M.A,No.473/ 2004 has been med by the claimants for enhancement of the quantum Whereas M.A. No. 694/2004 has been $ed by yossession holder of the vshicle against fastening 1.]3Td part of liability upon him as also quantum Emd by the ’I‘n'bunal. 2. In M.A.No.694[2004, cross appeal has been $ed by the Insurance Company with the delay of 2083 days. Therefore, I.A.No.2, an application for condonau'on of delay has been med. Since the liability and quantum were challenged in the cross appeal, the said application is allowed and delay in filing the cross objections is condoned. 3. Bn'ef facts of the case, as per the vexsion of the claimants, axe that on 27. 12.2002 deceased Pradeep Kumar Gupta (a Govt. Savant) was going to Pathalgaon &om Sitapur by motorcycle bearing Regn.No.C.G. 15-C/ 1393 along-with his hiend Majhar Husain. On the way, one Tractor bearing Regn.No.27-B]5034 w 8a Trolley No.27-B/5035 which was being driven by non— applicant no.2 Budhiyar Sai Gond in a rash and negligent manner dashed the motorcycle from back side and Pradeep Gupta fell down and the wheel of the Tractor ran over him, as a result of which the deceased died. At the time of accident, the deceased was 38 years; he was working as Regional O$cer in Govt. Veterinary Department and was drawing a monthly salary‘ of Rs.9406]-, The claimants being legal representatives/dependents of the deceased have nled Claim Petition u/s 166 of the Motor Vehicles Act for the award of total compensation of Rs.34,08,928/ - on various heads. \ 4. Le'anled. Claims Tribunal has held that the Tractor-Trolley was involved in the accident in which deceased died; there was no breach of policy conditions; the driver was holding valid and edective dxiving license to drive the Tractor-Trolley and contiibutory negligence was not proved. Having thus held, it has awarded a total compensation of Rs.10 lakhs which the claimants are entitled to receive hom non-applicants 1 to 3 jointly and severally and exonerated non—applicants 4 to 8’, who were the registered owners of the Tractor-Trolley. The Tribunal has imposed 1/ 3‘d liability upon non-applicant No. 1 Vijay Kumar (appellant in M.A.No.694/2004), so called purchaser of the Tractor— Trolley and the remaining 2/3rd liability upon the insurance company as well as driver Budhiyar Sai. Admittedly, the Tractor-Trolley which was involved in the accident was purchased under I.R.D.P. Scheme through Bank hnance by non-applicants 4 to 8 who sold the same to non— applicant no. 1 Vijay Kurnar. However, there was no transfer of ownership in favour of Vijay Kumar Agrawal. In sub—section 3O of section 2 of the Motor Vehicles Act, the word ‘owner’ has been denned as under: . , “Owner” means a person in whose name a motor vehicle stands registered, and where such person is ‘mhlor, 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; \\ 7. Section ' 157 of the Act provides tmnsfer of cert$cate of insurance in the name of the new owner. Sub-section (1) 8r. (2) of Section 157 leads as under: “(1) Where a person in Whose favour the cemcate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor Vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certihcate of insurance and the policy described in the certihcate shall be deemed to have been transferred in favour of the person, to whom the motor vehicle is tmnsfen‘ed with eEect from the date of its transfer. Explanan'on.—— For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certincate of insurance and policy of insurance. 3- (2) 'The transferee shall apply within fourteen days hum the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the cern‘ncate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certincate and the policy of insurance in regard to the transfer of insurance.” 8. The fact remains that on the date of accident, there was no transfer of ownership in favour of Vijay Kumar Agrawal, appellant in M.A.No.694/2004 and he was only a possession holder of the vehicle. Unless the vehicle is transferred in the name of new owner, there is no question of transfer of insurance policy. Without registering a person as owner, the insurance policy cannot be transferred and even if the possession holder of the Tractor has requested the Insurance s Company in writing to enter his name in place of owner, it could not have entered his name as he was not the registered owner of the vehicle and the ownership was not transferred in the RC. Further the appellant who is possession holder of the ’I‘Iactor cannot be held to be liable for payment of compensau'on as in the Motor Vehicles Act, no third person can be held liable to pay compensaiion. The compensation can be paid only either by the owner that is insured or the insurer, as the case may be, and not the third party. Attention of this Court has been drawn regarding the sale letter in favour of possession holder of the Tractor but in that sale letter, the authorization to get the name transferred has been made by the owner only after repayment of the entire loan amount to the Bank as the Tractor Was nuanced by the Bank under the Scheme and the owners were not in a position to pay the installments. Therefore, the condition mentioned in the sale letter for becoming the owner will be edective after repayment of the entire loan amount. Hence, in view of the sale letter also, the possession holder of the Tractor cannot be said to be the owner of the vehicle. The ownership cannot be claimed without there being any authority which was not granted by the owners of the vehicle in question till repayment of the entire loan amount. 10. In this regard, Hon’ble the Supreme Court in caseeof Pushpa alias Leela and others —1:s- Shakuntala and others (2011) 2 SCC 240, following the ratio laid down in T.V. Jose (Dr. - t Vs- Chucko PM. (2001) 8 SCC 748 has held in Para 14 that “the inescapable conclusions is that a person (Jitendra Gupta) s whose name conh'nucd in the records of the registen‘ng authority as th€ owner of the Vehicle was equally liablc for payment of the compensation amount. Fulther, since an insmance policy in mspect of the vehicle was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd.” 11. In the above facts and circumstances of the case, the appeal filed by the appellant Vijay Kumar is allowed. The cross objections iiled by the Insurance Company is also allowed in part. At this stage, learned counsel for the Insurance Company has raised contention that the Tribunal has not properly decided the issue of contributory negligence and has not conducted any enquiry to ascertain the truth. Since no enquiry was conducted by the Tribunal as provided in Sections 168 8r. 169 of the Motor Vehicles Act and Rule 226 of the C.G. Motor Vehicles Rules, l994, we are of the opinion that the matter requires reconsideration at the end of Tribunal. 12. Therefore, we remit the matter back to the Tribunal for decision afresh in the light of the above observau'ons. The Tribunal shall conduct an enquiry and summon the police record to ascertain the truth regarding cohuibutory negligence on the part of deceased, if any. Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, hle the t documents or get the documents verined etc and thereafter the decision shall be taken a&esh at the earliest as the matter relates to the year 2003. The records of the Tribunal shall be sent back without further delay. The pmh‘es shall appear before the Tribunal on 06m of SeEtember. 201 1. Since the matter is remitted back to the Tribunal, M.A.No.473/2004 med by the claimants has become inmctuous. However, it will be open to the claimants as also the Insurance Company to press the prayer of quantum befom the Tribunal. 15. In the result, M,A. No.694/ 2004 is allowed; cross objections med by the Insurance Company axe also allowed in part and M.A.No. 473/ 2004 stands disposed of in View of the direction for remittal of the matter. No order as to cos s). // #4.. \ W/ "'/ G. Manhawdd‘ Sdl‘ .“ “ i Judge _ sdl— _ l.M.Qudduslf " Judge 1 9%