Dismissed

Parasmal Tikamchand Shrimal v. Radhabai Ratan Salve and Others

Bombay HC27 Nov 2014FA/554/1998

Case brief

AI extract

What is this about?

In a first appeal regarding motor accident damages, the court dismissed the appellant's claim that transfer of possession dispensed him of liability. The court applied Section 19 of the Sale of Goods Act, holding that title did not pass under a conditional sale, and affirmed joint and several liability of the original owners. Appeal dismissed.

What did the court decide?

The appeal was dismissed and the Tribunal's order holding respondents jointly and severally liable was upheld.

Parasmal Tikamchand Shrimal Vs Radhabai Ratan Salve and… — Motor Accident Claims | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO.554 OF 1998

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Para Age- R/o	smal s/o Tikamchand Shrimal Major, Occ-Trade Shevli, Taluka and District- Jalna	APPELLANT
	VERSUS
1.	Radhabai w/o Ratan Salve, Age-22 years, Occ-Household	RESPONDENTS
2.	Sunita d/o Ratan Salve, Age-1 year, Minor u/g of her mother (Respondent No.1)
3.	Gondanbai w/o Waman Salve, Age-55 years, Occ-household
	All R/o Dhamangaon, Taluka-Badnapur, District-Jalna
4.	Kondiba @ Ratan s/o Piraji Londhe Age-Major, Occ-Driver, R/o Ramkheda, Taluka-Badnapur District-Jalna	(Dismissed)
5.	Sk. Isaq s/o Sk. Gulab, Age-Major, Occ-Tractor Owner, and Agriculture R/o Badnapur, Taluka-Badnapur District-Jalna
6.	Ankush Gajanan Khandebharad Age-Major, Occ- R/o Chikkargaon, Taluka-Ambad District-Jalna	(Formal Party)

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Mr. M.G.Deokate h/f Mr. Joydeep Chhaterjee, Adv. for appellant Mr. S.G.Sangale, Advocate for respondents No.1 to 3 Mr. H.B. Nandagavale h/f Mr. V. G. Sakolkar, for R-5

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[CORAM : SUNIL P. DESHMUKH, J.]

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DATE : 27th NOVEMBER, 2014

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ORAL JUDGMENT :

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Heard learned advocates for the parties for quite at some length. Sans details, which are not germane for decision in the first appeal, admitted position is that the appellant was the registered owner of offending vehicle – tractor bearing registration No. MHZ-334. Said tractor had been involved in accident giving dash to Ratan, who sustained injuries and succumbed to the same. The Accident occurred on 12^th October, 1994 around 12.30 p.m. at Badnapur on Jalna-Aurangabad road. As such, claim petition had been filed by present respondents No. 1 to 3.

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Undisputed facts as emerging are, the appellant had contended that he had parted with the ownership and possession of the tractor to one Ankush Gajanan Khandebharad on 21^st June, 1994 by selling the same. It has been contended that all the necessary papers were entrusted to him for effecting transfer

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in his name. It is further being contended that the vehicle subsequently had been purportedly sold by said Khandebharad to one Shaikh Isaq, who is respondent No. 5 in present first appeal and as such, purported to disclaim liability arising out of the accident to compensation to be paid to the claimants. It has come on record that the Tribunal had not held said Mr. Khandebharad liable to bear responsibility of the compensation. Initially when the appeal was filed, said Mr. Khandebhard had not been made party respondent. Subsequently, he was joined in as party, but as a formal one. As such, it appears that the appellant had not been serious about transfer of vehicle to Khandebharad and then to Mr. Isaq, the respondent No. 5. It further occurs that the vehicle stands registered in the name of said Isaq on 27^th October, 1994.

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Looking at the legal position, with reference to various citations, referred to in the decision, namely – 1977 ACJ 1258 “Sabir Hussain V. Maya Bai” and 1997 ACJ 1374 “Jaysingrao Dadu Patil V. Kutubuddin Ismail Soudagar” the trial court directed respondents No. 1 to 3 in claim petition, to pay compensation jointly and severally to the claimants. In 1977 ACJ 1374 ( Supra ), it is held thus-

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“The ratio of Division Bench in United India Insurance Co. Ltd Vs.

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Mathurabai, 1986 ACJ 1092 (Bombay), is squarely applicable to the facts and it can safely be held that the title in the property in the said tractor did not pass to the present appellants on the date of the accident since the sale of the tractor was conditional and upon payment of installments of Rs.2,000/- each to the bank till discharge of the loan and undisputably the present appellants had not paid installments as agreed. The Division Bench judgment of this Court in Mohd. Abdul Waheed Mohd. Nakim Khan's case, 1983 ACJ 369 (Bombay), is based on entirely different facts, where contract of sale of lorry was unconditional and section 20 of the Sale of Goods Act was applicable whereas in the present case the contract for the sale of the tractor was conditional and section 19 of the Sale of Goods Act is applicable and, therefore, the judgment of the Division Bench, of this Court in Mohd. Abdul Waheed Mohd. Nakim's Khan's case (Supra), has no application. The present case is, however, covered by the Division Bench decision of this Court in United India Insurance Co. Ltd., V. Mathurabai, 1986 ACJ 1092 (Bombay).

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Learned advocate appearing for the appellant however, strenuously submits that the vehicle being movable property, passing of title is complete as soon as possession and control is delivered. With reference to AIR 1986 AP 62 “Madineni Kondaiah V. Yaseen Fatim” , and AIR 1980 SC 871 “Pannalal V. Chand Mal” , it is being contended that the liability of compensation, as such, shall not be fastened on to the appellant.

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Learned advocate appearing for respondent No. 5, however contends otherwise. He submits that responsibility is solely of

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the appellant and respondent No. 5 should be discharged from the obligation arising out of the claim petition, for, on the date of accident, he cannot be said to be owner of the vehicle. However, said submission as well does not bear any substance, in view of the observations, as have been reproduced herein above.

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learned advocate for the appellant, refers 1997 (2) Apex Court Journal 439 (SC) “Rajasthan State Road Transport Corporation V. Kailash Nath Kothari & Others ” to impress upon that when the vehicle has been given in possession and control of the other person, the actual person in possession and control of the vehicle should be held liable, as has been held in that case. The Supreme Court observations, as have been appearing in the head note and paragraphs No. 8, 17 and 20, are with reference to facts involved in that case, wherein the bus was hired by the appellant with driver and the bus was in possession and under control of the appellant for carrying on hire passengers and the driver was to act under directions of conductor and appellant. With reference to said facts, the Supreme Court had said the word “owner” used in section 2 (19) of the Motor Vehicles Act, 1939 includes actual person in possession and under control of the vehicle. Services of the driver were transferred along with complete control to appellant and the registered owner was not

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concerned with passengers. It was held that the appellant was vicariously liable.

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Said case hardly has any parity with the facts involved in the present case. In view of aforesaid, the order passed by the Member of the Tribunal, holding respondents No.1 to 3 jointly and severally liable, cannot be faulted with. Appeal as such fails and stands dismissed.

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[SUNIL P. DESHMUKH, J.]

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drp/B14/fa554-98

Parasmal Tikamchand Shrimal v. Radhabai Ratan Salve and Others

Case brief

What is this about?

What did the court decide?

Parasmal Tikamchand Shrimal v. Radhabai Ratan Salve and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Cases cited

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