RAJASTHAN HIGH COURT
                              Dhulchand
                                   Vs.
                                KantiLal

                  C.M.A. No. 30 of 1988
                     (PrakashTatia, J.)

                  24.02.2004

                  JUDGMENT

PrakashTatia, J.

1. Heard learned counsel for the petitioner.

2. This appeal is against the award dated 3rd Oct., 1987 by which the appellant,
respondent No. 2 and respondent No. 3 were held liable to pay the compensation to
the claimant No. 1 as awarded by the Tribunal.

3. This appeal is by the appellant Dhuli Chand, who was the non-petitioner No. 3
before the Tribunal. The other non-petitioner before the Tribunal was SampatLal, who
also challenged the award by S.B.C. Misc. Appeal No. 213/1987, which was
dismissed on 8th Sept., 1988. According to the learned counsel for the appellant, the
vehicle in dispute was registered in the name of one ShriSampatLal, he sold this
vehicle to Dhuli Chand and HiraLal on 10th Aug., 1980. Dhuli Chand and HiraLal
sold the vehicle to one ShriAmbaLal and actual physical possession was handed over
to AmbaLal and AmbaLal agreed to pay taxes in future and also agreed to undertake
all the liability of the Insurance claimant, therefore, AmbaLal alone was liable to pay
all the compensation, which was awarded by the Tribunal. Learned counsel for the
appellant relied upon the agreement (Ex. A-1) which is executed between the
AmbaLal as party No. 1 and Dhuli Chand and HiraLal as party No. 2.
4. Learned counsel for the appellant relied upon the single Bench's judgment of this
Court delivered in the case of MurariLal v. Gumati Devi, reported1in 1wherein this
Court pointed out that the distinction between 'real owner' and 'registered owner' and
held that the person, who is in possession/in charge of the vehicle and who is dealing
with the vehicle for his benefit is the owner as defined under Section 21(9) of the
Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act' of 1939). Learned
counsel for the appellant also relied upon the Division Bench's judgment of this Court
delivered in the case of New India Assurance Co. Ltd. v. R.S.R.T.C., reported 2 in
wherein the R.S.R.T.C. took a bus on contract from the registered owner of the bus
and the bus met with an accident and question come for consideration, whether the
R.S.R.T.C. is liable to pay the damages to the victims as bus was under the control of
R.S.R.T.C. and was on road for the benefit R.S.R.T.C. and was in the hands of driver
of the R.S.R.T.C, or registered owner is liable to pay the compensation. The plea of
R.S.R.T.C. was that the liability is of the registered owner of the vehicle and of the
Insurance Company with whom the vehicle was insured. The Division Bench of this
Court considered the judgment of the Hon'ble Supreme Court delivered in the case of
Pannalal v. State of Bombay, reported in 3and also judgment of this Court delivered in
the case of Rajasthan State Road Transport Corporation v. KailashNath Kothari,
reported in 4 and held that the R.S R.T.C. is also liable to pay the compensation.

5. It is true that the single Bench of this Court in the case of MurariLal (supra) made
clear the distinction between the 'real owner' and 'registered owner' and after
considering the definition of the owner given in Section 2(19) of the Act of 1939 (old
Act) held that the real owner is liable to pay the compensation to the victim. The
Division Bench of this Court in the above referred case (New India Assurance
Company Ltd. v. R.S.R.T.C.) 5also held that the R.S.R.T.C. who was not the registered
owner or "true owner" is liable to pay the compensation after taking note of the
general proposition - "the general proposition of the law and the presumption arising
therefrom that an employer, that is the person who has the right to hire and fire the
employee, is generally responsible vicariously for the tort committed by the concerned
employee during the course of his employment and within the scope of his authority.
"But after that the Division Bench also observed, which is as under:

       "The question whether a condition in an agreement with the owner to be
       absolved itself from the liability arising out of the accident, is invalid as public
       policy, was not examined though the finding was recorded by the High Court
       that the condition 15 of the agreement in the aforesaid case, in the contract to
       the extent, it shifts the liability arising of the accident from the R.S.R.T.C. to the
       owner, may be against the public policy."
(Emphasis supplied)

6. The Division Bench in the above case further observed that the Corporation cannot
be absolved from the liability arising out of the use of the vehicle in question at public
place, driven under its control and instructions as the vehicle engaged by it for the
purpose of plying it as part of its business of public passenger transport. Ultimately,
the Division Bench after holding the R.S.R.T.C. liable also held that the insurers
liability under the policy being not exceeded Rs. 15,000/- per passenger, it is not liable
to any further sums, it will be relevant to mention here that the insurance Company
insured the vehicle for the benefit of registered owner of the vehicle and there was no
privet of the contract between the Insurance Company and the R.S.R.T.C., therefore, if
the owner of the vehicle would have been absolved totally by the Division Bench of
this Court in the above referred judgment, then there could not have been any liability
of the Insurance Company. Therefore, it appears that the R.S.R.T.C. was found
responsible for the compensation because the vehicle was under the full control of the
R.S.R.T.C. and it was driven under the control and instructions of the R.S.R.T.C. or by
the person engaged by the R.S.R.T.C. as accident was caused by the employee of the
R.S.R.T.C. but at the same time registered owner was also held liable for the damages.

7. In view of the above decisions, learned counsel for the appellant submits that since,
AmbaLal was person having control over the vehicle and the vehicle was driven under
the control and instructions of AmbaLal and, therefore, AmbaLal was the person,
liable to pay the compensation. I do not find any force in the submission of learned
counsel for the appellant in view of this case; firstly because the entire case set up by
the appellant appears to be factually not correct. The Registration Certificate of the
vehicle for the period starting from 1st Jan., 1982 to 31st March, 1982 reveals that
SampatLal and Dhuli Chand were shown as the registered owners of the vehicle
whereas the agreement (Ex. A/1) produced by the appellant reveals that the vehicle
was shown to be owned by Dhuli Chand and HiraLal as on 23rd Feb., 1981. They
agreed to sell the vehicle to AmbaLal as per the agreement. The vehicle was already
financed by one ShriRoshanLal and his amount was due. As per agreement (Ex. A/1),
AmbaLal agreed to purchase the vehicle for consideration of Rs. 86,201/-. AmbaLal
paid Rs. 30,254/- to the sellers Dhuli Chand and HiraLal and agreed to pay Rs.
43,200/- to financier RoshanLal in monthly instalment of Rs. 1,600/-. AmbaLal
further agreed that he will pay Rs. 8,747/- to the person from whom some goods were
purchased for the vehicle. If Dhuli Chand and HiraLal were the two co-owners of the
vehicle and they agreed to sell the vehicle to AmbaLal, then how the vehicle as shown
to be registered in the name of SampatLal and Dhuli Chand as on 1st Jan., 1982 till
31st March, 1982, has not been made clear. This fact casts serious doubt about the
agreement (Ex. A/1) itself, which is only piece of documentary evidence to show that
AmbaLal was the person purchaser of the vehicle from 31st Feb. 1981 and was in
actual possession of the vehicle on 2nd March, 1982, when the accident occurred.
Since argument itself is doubtful and the appellant failed to prove the sale of the
vehicle to AmbaLal rather his stand contradicted by the documentary evidence
produced by the appellant himself, therefore, if the Tribunal held that the appellant
being registered owner of the vehicle, is liable to pay the compensation, the Tribunal
has not committed any illegality.

8. Apart from it, in view of the Division Bench judgment of this Court delivered in the
New India Assurance Co. Ltd. v. RSRTC (supra) any condition absolving the
registered owner from the liability appears to be against the public policy. The
Division Bench of this Court after considering the said condition in the agreement
upheld the award against the registered owner also and also held that the Insurance
Company is liable to pay the compensation though the vehicle was under the control
and was driven under the instructions of the beneficiary of the contract and not by the
registered owner. Therefore, even if, the appellant would have proved handing over
the actual possession of the vehicle to the subsequent purchaser, they cannot have
avoided their liability. It is true that in view of the Division Bench decision of this
Court in New India Assurance Co. Ltd. (supra) even if, the vehicle has not been
registered in the name of the purchaser and the purchaser permits his employee to
drive the vehicle and his driver causes the accident, then the said transferee is also
liable vicariously, but along with the registered owner. Admittedly, in this case, there
is no case of hire purchase agreement for which there is a specific provision of the
Registration of the Vehicle provided under Section 31A of the Old Act of the Act of
1939 and as provided under Section 51 of the Act of 1988.

9. 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 he Legislature in the Old Act.
The definition of "owner" is given in sub-section (19) of Section 2, there is no such
"comma" between "hire purchaser" and "agreement". The said comma is not in the
Motor Vehicles Act published in the AIR Manual 5th Edition also. The publisher
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.

10. Since the appellant failed to prove that the vehicle was sold to AmbaLal or was
handed over to AmbaLal to run it exclusively in his control and under his instructions,
therefore, I do not find any force in this appeal.

11. Hence, the appeal of the appellant is dismissed.

Appeal dismissed.

Cases Referred.

1. 1968 ACJ 316
2. 2003 RAR 213
3. AIR 1963 SC 1516
4. 1997(2) Apex Court Journal 439 (S.C): 1997 ACJ 1148
5. (2003 RAR 213)