F.A.O.No.3609 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.No.3609 of 2006 (O&M) Date of Decision 08.09.2009 Yog Raj @ Jog Raj ......Appellant VERSUS Bhajan Kaur and others ......Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Vijay Lath, Advocate, for the appellant. Mr.K.K.Bansal, Advocate for Mr.P.P.Sharma, Advocate, for respondents No.1 to 5. **** F.A.O.No.3307 of 2006 (O&M) Date of Decision 08.09.2009 Ranjit Singh ......Appellant VERSUS Bhajan Kaur and others ......Respondents Present: Mr.Rajinder Goyal, Advocate, for the appellant. Mr.K.K.Bansal, Advocate for Mr.P.P.Sharma, Advocate, for respondents No.1 to 8. Mr.Vijay Lath, Advocate, for respondent No.9. ***** F.A.O.No.3610 of 2006 (O&M) Date of Decision 08.09.2009 Jog Raj (Yog Raj) ......Appellant VERSUS Bhajan Kaur and others ......Respondents F.A.O.No.3609 of 2006 (O&M) 2 Present: Mr.Vijay Lath, Advocate, for the appellant. Mr.K.K.Bansal, Advocate for Mr.P.P.Sharma, Advocate, for respondents No.1 to 5. Mr.Rajinder Goyal, Advocate, for respondent No.9. A.N.JINDAL, J(ORAL): This judgment of mine shall dispose of aforesaid three F.A.O. Nos.3609, 3307 and 3610 of 2006 which arise out of the award dated 22.02.2006, passed by Motor Accident Claims Tribunal, Rupnagar whereby Yog Raj respondent-appellant (herein referred as 'the respondent') alongwith Ranjit Singh in MACT Case No.16 of 16.01.2004 was held liable for the accident and was fastened the liability of compensation to the tune of Rs.3,15,000/- alongwith interest @ 6% on account of the death of Avtar Singh and as a consequence thereof M.A.C.T. Case No.16 of 11.09.2004 filed by Yog Raj-respondent was dismissed. Factual background of the case is that on 18.07.2003 at about 9:00 p.m., Avtar Singh (deceased) was coming on his scooter bearing registration No.PB-16-4070 after completing his job. When he reached near the railway station on the railway road, then Yog Raj while driving the scooter bearing registration No.PB-12-2379 rashly and negligently came from the opposite side and struck against the scooter of Avtar Singh. Resultantly, Avtar Singh fell down on the ground. He was shifted to BBMB Hospital, Nangal from where he was referred to PGI, Chandigarh. Ultimately, he succumbed to the injuries on 23.07.2003 at 8:00 a.m. Consequently, FIR was recorded at police station Nangal Township vide No.67 dated 18.07.2003. Resultantly, Yog Raj appellant was challaned and faced trial. As an aftermath of the accident, Bhajan Kaur etc.-claimants preferred claim petition on 16.01.2003. However, lateron Yog Raj also filed a claim petition against Bhajan Kaur etc. on 11.09.2004. The claim petition filed by Bhajan Kaur was contested by Yog Raj stating that he was neither the owner nor the driver of the offending vehicle and was only a pillion rider of the scooter bearing registration No.PB-12-2379 and had taken lift only. However, he was falsely implicated in the case in F.A.O.No.3609 of 2006 (O&M) 3 connivance of the police. Ranjit Singh, registered owner of the offending vehicle also filed a separate written statement submitting that he had already transferred the aforesaid scooter in the name of Yog Raj, therefore, he could not be held liable. From pleadings of the parties, following issues were framed:- 1. Whether Avtar Singh son of Rattan Singh died in a road side accident caused by the scooter No.PB-12-2379 in a rash and negligent driving of the said vehicle ? OPP 2. Whether claimants are entitled for the compensation as prayed for, if so then from whom and how much ? OPP 3. Relief. The Tribunal, after examining the evidence and hearing the parties, accepted the claim petition filed by Bhajan Kaur etc. whereas the claim petition filed by Yog Raj etc. was dismissed and Yog Raj as well as Ranjit Singh-owner were held liable to pay compensation. Heard. Two prime questions have been raised in this appeal. Firstly, whether the accident took place due to the rash and negligent driving of Yog Raj-appellant and secondly whether Ranjit Singh, who is admittedly the registered owner of scooter bearing registration No.PB-16- 4070, could be held liable for compensation. To determine the aforesaid questions, I need to mention certain facts. Ranjit Singh was the registered owner of scooter bearing registration NO. PB-12-2379 whereas Yog Raj is stated to be a pillion rider over the said scooter. Avtar Singh was the owner of scooter Bajaj Chetak bearing registration No. PB-16-4070. Accident took place on 18.07.2003 at 08:30 p.m. Kuldeep Singh son of Rana Ram is stated to be a witness at the time of accident whereas as per FIR Ex.P7 regarding the accident, it may be observed that it was lodged by Ranti Dev PW2 against Yog Raj under Sections 337, 338, 427 I.P.C. and he gave version to the effect that Yog Raj while driving the scooter in a rash and negligent manner struck against Avtar Singh and the FIR Ex.P7 was registered under Sections 279, 427, 304-A IPC. Post mortem report of Avtar Singh Ex.P6 reveals that the death of Avtar Singh took place on account of the road side accident. In order to prove the accident, Ranti Dev, while appearing in the witness box as PW2, F.A.O.No.3609 of 2006 (O&M) 4 stated in his affidavit Ex.PW2/B that on 18.07.2003 he alongwith Jagtar Singh was going to village Nangli. Avtar Singh was going ahead of them. At about 9:30 p.m., when they reached near railway station on the railway road then Yog Raj while driving the scooter bearing registration No.PB-12- 2379 rashly and negligently came and struck against the scooter of Avtar Singh. Resultantly, he fell down and sustained grievous injuries. At this, he alongwith Jagtar Singh and others took Avtar Singh to BBMS Hospital, Nangal from where he was referred to PGI, Chandigarh and lateron he died on 23.07.2003. FIR was recorded at Police Station Nangal Township. There is no denying a fact that Yog Raj also suffered injuries. According to him, Avtar Singh was negligent in driving the vehicle. To prove his case, he examined Kuldeep Singh RW-2. However, Kuldeep Singh could not withstand the test of cross-examination. He evaded to answer the question as to who was at fault in the accident. He deposed that he cannot tell as to who was at fault. He also failed to disclose as to who was driving the scooter bearing registration No.PB-12-2379 at the time of accident. He has also shown his ignorance about the acquaintance with Avtar Singh. No copy of the FIR has been placed on record, which may have been registered by Yog Raj against Avtar Singh for suffering injuries allegedly at the hands of Avtar Singh. Kuldeep Singh has stated that he took Yog Raj to the hospital but name of Kuldeep Singh does not figure (as the person accompanying) in the hospital record. The person, who took the injured Yog Raj to the hospital has not been examined. The story set up by Yog Raj that he was a pillion rider, also does not appear to be correct as the person who was driving the scooter at that time must have also suffered injuries but the hospital record does not disclose if any third person was also admitted in the hospital. Yog Raj appellant also did not lodge any complaint qua the offence allegedly committed by Avtar Singh. He did not prove any site plan as prepared by the Investigating Officer to establish the situation at the spot so that the Court could reach the conclusion with regard to the fault on the part of Avtar Singh. No mechanical report or photographs of the scooter were proved on record, which could be helpful to reach the conclusion that Yog Raj was not at fault. As such, if the evidence led by both the parties is put on the alter of probabilities, F.A.O.No.3609 of 2006 (O&M) 5 credibility and trustworthiness then it could certainly be observed that Yog Raj has not come with clean hands. He filed the instant claim petition as a counter blast to the earlier petition by introducing Kuldeep Singh lateron as an eye witness. Actually, Kuldeep Singh was not present at the spot. To the contrary, the case set up by the claimants Bhajan Kaur etc. stands fully established from the evidence led by them. As such, there is no escape from concluding that the accident took place as a result of rash and negligent driving of scooter No. PB-12-2379 by Yog Raj-appellant. Now coming to the question whether Ranjit Singh appellant in FAO No.3307 of 2006 could be held liable with Yog Raj jointly and severally. There is no denying a fact that Yog Raj was driving the offending scooter at the time of accident and he was in possession of the said vehicle. The accident took place on 18.07.2003 whereas the plea set up by Ranjit Singh-appellant is that he had transferred the offending scooter vide receipt Ex.R6 dated 30.04.1998 and delivered its possession on the same day, therefore, he cannot be held liable in view of the definition of the owner as mentioned in Section 2 sub Section (30) of the Motor Vehicles Act, 1988 (herein referredd as 'the Act'). Reliance has also been placed over the judgment delivered in case Vipin Kumar Sharma vs. Jagwant Kaur and others 2005 (4) R.C.R. (Civil) 40 which is reproduced as under:- “Sub-section (30) of Section 2 of the Act defines “owner”, which reads as under:- “Owner” means a person in whose name a motor vehicle stands registered, and where such person is 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.” While urging that the words 'hire purchase agreement' as envisaged in Section 2 sub Section (30) of the Motor Vehicles Act, that is not one word but these are two words i.e. 'hire-purchase' and 'agreement'. If the definition is read by segregating hire-purchase and agreement separately, it has a wider scope so as to include all persons, including those who had delivered the possession of the vehicle under an agreement. It depends upon terms and conditions of the agreement and if the transferee is F.A.O.No.3609 of 2006 (O&M) 6 in possession of the vehicle then on such transfer of the vehicle in his name, he would be liable. But I do not agree with the contentions raised by the learned counsel. The words 'hire purchase' and 'agreement' are not two words and counsel is not correctly interpreting it. This ambiguity in the definition was elaborately discussed by Rajasthan High Court including the question whether there is a comma in between the words 'hire purchase' and 'agreement' and observed in case Dhulchand vs. Kanti Lal and others AIR 2004 Rajasthan 267 which is reproduced as under:- “It will be worthwhile to mention here that in the Book, Motor Vehicles Act, 1988 published by the Eastern Book Company, Lucknow 9th Edition in “sub- Section (30) of the Section 2” in the heading of “owner” there appears to be typing mistake as there is “comma” printed after the words “hire-purchase” and before the word “agreement”. This makes the definition more wider, then intended by the Legislature in the Old Act. The definition of “owner” is given in sub-Section (19) of the Section 2, there is no such “comma” between “hire purchase” and “agreement”. The said comma is not in the Motor Vehicles Act published in the AIR Manual 5th Edition also. The purchaser should take care while publishing the Acts because a mere inclusion of one comma, the scope of the statutory provision may be changed. By insertion of “comma” all the persons who are having agreement irrespective of the terms and conditions of the agreement and but are in possession of the vehicle will become the owner of the vehicle for the purpose of the Motor Vehicles Act 1988.” Legislature never intended to amend the definition by adding comma as such, unless the property is purchased under the hire purchase and under the said agreement, the vendee is in possession, he would be deemed to be the owner, in all other cases, only registered owner would be taken as owner for the purpose of Motor Vehicles Act, 1988. Thus, in this view of the matter, Ranjit Sigh could not be exonerated till the vehicle was got transferred by him in the name of Yog Raj appellant. As such, the Tribunal was justified in holding the appellants Yog Raj and Ranjit Singh liable to pay the compensation. As regards the F.A.O.No.3609 of 2006 (O&M) 7 appeal i.e. FAO No.3609 of 2006 filed by Yog Raj for claiming compensation of the injuries suffered by him against the respondents Bhajan Kaur etc. it needs to be observed that since Yog Raj has failed to prove that he suffered injuries on account of the rashness and negligence on the part of Avtar Singh, therefore, he was not entitled to any compensation under Section 166 of the Motor Vehicles Act. Resultantly, all the three appeals stands dismissed. No order as to costs. (A.N.Jindal) Judge 08.09.2009 mamta-II