Dismissed

Dilip Borah v. Padum Borah and Anr.

Gauhati HC15 May 2019MACApp./122/2014

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an appeal against a Motor Accident Claims Tribunal award in a death case involving a scooter accident. The appellant, the registered owner, argued he sold the scooter before the accident. The Court held that while possession had transferred, the appellant remained a registered owner under the Motor Vehicles Act and liability was correctly apportioned.

What did the court decide?

The appeal was dismissed and the respondent was permitted to withdraw the statutory deposit deposited by the appellant.

Dilip Borah Vs Padum Borah and Anr. — Motor Accident Claims | Gauhati HC (2019)

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Page No.# 1/7

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GAHC010009642014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : MACApp. 122/2014

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1:DILIP BORAH

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S/O LT. GOLAP BORAH, VILL. DHEKIAL ADHELI CHUCK, PO. DHEKIAL, PS. GOLAGHAT, DIST. GOLAGHAT, ASSAM, PIN-785622.

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VERSUS

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1:PADUM BORAH and ANR.

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W/O LATE HARAKANTA BORAH, VILL. BHAOLI GAON SINGORAJAN, PO. BARUABAMUN GAON, PS. DERGAON, DIST. GOLAGHAT, ASSAM, PIN785702.

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2:SIMANTA HAZARIKA S/O U. HAZARIKA VILL. DHEKIAL ADHELI CHOK PO. DHEKIAL PS. GOLAGHAT DIST. GOLAGHAT ASSAM PIN-78562

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Advocate for the Petitioner : MS.M GOSWAMI

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Advocate for the Respondent : MS.P BARMAN

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Linked Case : MC 1599/2014

1:DILIP BORAH

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VERSUS

1:PADUM BORAH and ANR.

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Advocate for the Petitioner : MR.S U AHMED Advocate for the Respondent :

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BEFORE

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HONOURABLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 15-05-2019

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Heard Mr. M. Sarania, the learned counsel for the appellant and Mr. IA Talukdar, the learned counsel for the respondent No. 1. None appears for the respondent No. 2 despite notice. Notice was deemed served upon the respondent No. 2 vide Order dated 02.05.2018. As such, the appeal is taken up for final disposal by hearing the learned counsel for the appellant as well as the respondent No. 1.

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2. Brief facts of the case is that on 26.05.2016 at around 7:15 AM, the husband of the

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respondent No. 1, Sh. Harakanta Borah was returning home from Lawbhoga on foot. On reaching Singarajan, a Bajaj Scooter bearing registration No. AS-05/A-3212 going on the same direction hit Sh. Harakanta Borah from behind and as a result, he suffered grievous injuries in his head. Although he was immediately shifted to Kushal Konwar Civil Hospital, Golaghat, he succumbed to his injuries the following day at around 6 AM. The deceased at the time of his death left behind his wife, Smt. Padum Borah i.e., the claimant/respondent No.

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1 and Smt. Numali Borah, his mother.

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3. In view of the accident, the respondent No. 1/claimant filed a claim application before

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the learned Member, Motor Accident Claims Tribunal, Golaghat, which was registered as MAC Case No. 141/2006. The claimant/respondent No. 1 by filing the claim application, claimed a

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sum of Rs. 7 lakhs as compensation on account of the death of her husband in the accident. The appellant as well as the respondent No. 1 were arrayed as opposite party Nos. 1 and 2 respectively before the Tribunal. They contested the claim by filing their respective written statement. In support of her claim, the claimant/respondent No. 1 examined 2 witnesses including herself. As for the opposite parties, no witnesses were examined. Consequently, the learned Tribunal vide Judgment dated 17.12.2013 decided the 2 issues framed in favour of the claimant by awarding a sum of Rs. 2,58,000/- as compensation to the claimant with interest @ 6% per annum from the date of filing the claim application i.e., 10.07.2006 till final realization. The award was equally apportioned and directed to be satisfied by the 2 opposite parties. Being aggrieved, the appellant is before this Court.

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4. Mr. M. Sarania, the learned counsel appearing for the appellant submits that against the claim application, the appellant as opposite party No. 1 filed his written statement stating that on the date of the accident i.e., 26.05.2006, the appellant was no longer the owner of the Scooter that was involved in the accident. He submits that the appellant had sold the Scooter to the respondent No. 2 for a considered sum of Rs. 11,000/- on 15.03.2006. Therefore, the offending Scooter not being in the possession and control of the appellant on the date of the accident, the learned Tribunal could not have held the appellant to be liable to pay 50% of the awarded compensation.

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5. Mr. M. Sarania, the learned counsel submits that although the appellant did not exhibit the relevant documents before the Tribunal, as provided under the Code of Civil Procedure, 1908 but the fact remains that the appellant annexed the documents in his written statement, which were accepted by the Tribunal as well as the other parties without any objection. He submits that the appellant submitted the notice of transfer to the District Transport Officer,

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Golaghat on 28.03.2006 which stated that on 10.03.2006, he sold his Scooter bearing registration No. AS-05/A-3212 to the respondent No. 2 and he handed over all the documents of the Scooter to the said purchaser. He also submits that on 25.03.2006, the appellant informed the Officer-in-charge of Dhekial Police Outpost that he had sold the Scooter for a sum of Rs. 11,000/- to the respondent No. 2. Further, the appellant also annexed a copy of the sale receipt dated 16.03.2006, which was signed by the appellant and the same also contained the Chassis number and the Engine number of the Scooter.

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6. Mr. M. Sarania, the learned counsel further submits that the appellant has complied with the provisions of the transfer of ownership, as provided under Section 50 of the Motor Vehicles Act, 1988 (MV Act) by informing the District Transport Officer about the sale of the Scooter. It was incumbent on the part of the respondent No. 2 to take necessary steps for transfer of the registration in his name under Section 50 (1)(b). However, the respondent No. 2 having failed to take necessary steps, as provided under the said provision, he will solely be responsible to pay the compensation to the claimant. The learned counsel thus submits that since the offending Scooter was not in his possession and under his control at the time of the accident, the appellant cannot be held to be liable to pay any compensation to the claimant. In support of his submission, the learned counsel relies upon the Apex Court decision rendered in Purnya Kala Devi Vs State of Assam & Anr., reported in (2014) ACC 253.

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7. Mr. IA Talukdar, the learned counsel appearing for the respondent No. 1 submits that the learned Tribunal has not committed any mistake in awarding the compensation to the claimant and to be paid equally by the opposite party Nos. 1 and 2. The appellant being the opposite party No. 1 is liable to pay the compensation. The learned counsel submits that although the appellant maintains that the Scooter was sold to the respondent No. 2, much

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before the date of the accident but the fact remains that the appellant was still the registered owner at the relevant time. Therefore, he cannot escape the liability of payment of compensation on the claimant. The learned counsel by referring to Section 2 (30) of the MV Act submits that the appellant clearly falls under the said definition of a registered owner and therefore, he cannot escape his liability. He further submits that the case of Purnya Kala Devi (Supra) relied upon by the learned counsel for the appellant is not applicable to the present case, inasmuch as, the facts involved are different. He submits that in that case the vehicle was requisitioned by the State Government and therefore, it was in that context that the State was held liable to pay the compensation. He thus submits that under the facts and circumstances of the case, the appeal be without any merit and the same should be dismissed.

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8. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record, including the record of the Tribunal.

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9. As may be noticed, the main ground of challenged of the impugned Judgment & Award by the appellant is that he had sold the Scooter involved in the accident, much before the date of the accident and the Scooter not being in his possession and control, he could not have been held liable by the Tribunal. It is also seen that such was the stand taken by the appellant in the written statement filed before the Tribunal, the respondent No. 2 although not represented before this Court also filed his written statement before the Tribunal. A perusal of the written statement goes to show that the respondent No. 2 has not made any denial that the Scooter was not purchased by him as contended by the appellant. However, the opposite party No. 2 maintains that the amount of compensation claimed by the appellant before the Tribunal is too excessive an amount and highly exorbitant.

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10. From the facts pleaded by the parties and from the materials available on record, the question is as to whether the appellant can shun his liability to compensate the claimant in view of his selling the Scooter concerned. The sale receipt annexed by the appellant before the Tribunal including the notice of transfer of ownership of Motor Vehicles Act, Form 29 and also the intimation of the sale to the Officer-in-charge of Dhekial Police Outpost, though annexed to the written statement has not been exhibited. However, the fact remains that irrespective of the question as to whether, a non-exhibited document can be accepted as a reliable and cogent evidence, the fact remains that the Scooter involved in the accident was still in the name of the appellant as on the date of the accident i.e., 26.05.2006. That being the position, the appellant is only but a registered owner within the meaning of Section 2(30) of the MV Act. However, the undisputed fact also is that the Scooter was not in possession and control of the appellant at the time of the accident. Under the circumstance, I am of the considered opinion that the Tribunal did not commit any error in apportioning the liability between the appellant and the purchaser of the Scooter i.e., the respondent No. 2.

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11. In the result, I do not find any merit in the appeal and the same is dismissed.

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12. The respondent No. 1/claimant is permitted to withdraw the statutory deposit of Rs. 25,000/- made by the appellant, on proper identification and as per the usual formalities. The amount shall be adjusted against the amount to be paid by the appellant to the claimant.

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13. With the above observation and direction, the appeal stands disposed of.

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14. Office to send back the LCRs to the learned Tribunal immediately.

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Page No.# 7/7

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JUDGE

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Comparing Assistant

Dilip Borah v. Padum Borah and Anr.

Case brief

What is this about?

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Dilip Borah v. Padum Borah and Anr.

Case brief

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