M/S KANCHAN AUTOMOBILESversusSMT. RITA KUSHWAHA AND OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           FIRST APPEAL FROM ORDER No. - 3576 of 2008

M/S Kanchan Automobiles
                                                              .....Appellant(s)
                                   Versus
Smt. Rita Kushwaha And Others
                                                            .....Respondent(s)

Counsel for Appellant(s)         : Vishal Tandon
Counsel for Respondent(s)        : Santosh Kumar, Shyam Sunder Mishra,
                                   Usha Srivastava, Vikram Bahadur
                                   Yadav, Brijesh Tiwari, Radhey Shyam
                                   Yadav, Seema Pandey, Vivek Shukla

Court No. - 54
                     HON'BLE ANIL KUMAR-X, J.

1. Heard Sri Vishal Tandon, learned counsel for the appellant, and Sri
Vivek Shukla, learned counsel for the respondent. None has appeared on
behalf of respondent no. 2 even in the revised call.

2. The present First Appeal From Order is being filed against the judgment
and award dated 18.9.2008 passed by the Motor Accident Claims
Tribunal/Additional District Judge, Court No. 3, Kanpur Dehat, in MACP
No. 413 of 2006, titled Smt. Rita Kushwaha Vs. Chandra Shekhar and
Others.

Brief facts of the appeal

3. The respondent-claimant instituted a claim petition before the learned
Tribunal stating that on the morning of 23.08.2006 she, along with other co-
villagers, had gone on a tractor belonging to respondent Chandra Shekhar for
taking bath in the holy river situated in District Fatehpur. It was stated that
while the tractor was being taken for the said purpose, it overturned, as a
result of which the claimant and other persons travelling on the tractor
sustained injuries. It was further stated that on the date of accident the
tractor was not registered with the Transport Department and its registration
was subsequently made with the RTO. The claimant sustained serious
injuries in the accident and, according to her case, both her legs became
paralysed, resulting in permanent disability. The learned Tribunal, after
considering the evidence on record, allowed the claim petition and awarded
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a sum of Rs.2,71,150/- along with interest at the rate of 6% per annum. The
entire liability for payment of the awarded amount was fastened upon the
appellant. Aggrieved by the said award, the present appeal has been filed.

Submissions on behalf of the appellant

4. Learned counsel for the appellant submitted that the learned Tribunal has
committed an error in fastening the entire liability upon the appellant. It was
argued that on the date of accident the tractor was not in possession or
control of the appellant. Prior to the accident, the tractor had already been
sold by the appellant, through its tractor agency, to respondent no.2 Chandra
Shekhar and the tractor was in his possession and control on the date of
accident. It was further submitted that the pleadings as well as the evidence
brought on record clearly establish that the appellant had neither possession
nor control over the tractor at the time of accident. Therefore, merely
because the vehicle had not been registered in the name of respondent
Chandra Shekhar on the date of accident, the appellant could not have been
held liable for payment of compensation.

5. Learned counsel further submitted that another claim petition arising out
of the same accident, relating to the death of Smt. Sia Dulari, was instituted
as MAC No.350 of 2006, Suresh @ Chutkan and others Vs. Chandra
Shekhar and others. The said claim petition was decided by the learned
Tribunal by judgment dated 19.08.2008, wherein, after considering the entire
material relating to ownership and possession of the offending tractor, the
learned Tribunal held respondent Chandra Shekhar liable for satisfying the
award.

6. It was argued that the aforesaid judgment dated 19.08.2008 was passed
prior to the impugned judgment dated 18.09.2008. Therefore, the finding
regarding ownership and liability recorded in the earlier judgment, arising
out of the same accident and concerning the same offending tractor, could
not have been ignored while deciding the subsequent claim petition. Learned
counsel submitted that the principle underlying res judicata and consistency
of findings in respect of the same issue arising from the same transaction
also requires consideration by this Court.


Submissions on behalf of the respondent-claimant

7. Per contra, learned counsel for the respondent-claimant submitted that
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the learned Tribunal has rightly fastened the liability upon the appellant. It
was argued that the sale certificate/sale letter in favour of respondent
Chandra Shekhar was issued only on 26.08.2006, whereas the accident had
taken place on 23.08.2006. Similarly, the offending tractor was registered
with the RTO only on 02.09.2006 in favour of Chandra Shekhar, i.e.
subsequent to the accident.

8.   It was submitted that the appellant failed to produce any reliable
document before the learned Tribunal to establish that ownership of the
tractor had already been transferred in favour of respondent Chandra
Shekhar before the date of accident. On the contrary, the sale letter and the
registration certificate were brought on record by respondent Chandra
Shekhar himself.

9.   Learned counsel therefore submitted that in the absence of any
documentary evidence establishing transfer of ownership before 23.08.2006,
the learned Tribunal rightly held the appellant liable for payment of
compensation. It was also submitted that the documents produced before the
Tribunal were not disputed by the appellant and, therefore, the finding
recorded by the Tribunal does not call for interference.

10. Heard Learned Counsels and perused the impugned judgment and
award dated 18.9.2008 passed by Motor Accident Claims Tribunal /
Additional District Judge, Court No.3, Kanpur Dehat and carefully
examined the records. Before adverting to issue raised in this appeal, this
Court finds that sole question for consideration in this appeal is:-


Whether the appellant, on the facts and evidence available on record, can be
held liable to satisfy the award when the offending tractor, though not
registered in the name of respondent Chandra Shekhar on the date of
accident, was allegedly already in his possession and control?


Meaning of "owner" under the Motor Vehicles Act


Before considering the rival submissions, it would be appropriate to examine
the meaning of the expression "owner" under the Motor Vehicles Act, 1988.

11. Section 2(30) of the Motor Vehicles Act defines "owner" to mean the
person in whose name a motor vehicle stands registered. It further provides
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for the guardian where such person is a minor and, in relation to a motor
vehicle which is the subject of a hire-purchase agreement, lease or
hypothecation, the person in possession of the vehicle under such agreement.
The Supreme Court has noticed this definition in Vaibhav Jain v.
Hindustan Motors Pvt. Ltd., 2024 INSC 652.

12. However, Section 2 itself begins with the expression "unless the context
otherwise requires". Thus, the statutory definition cannot be applied
mechanically in every situation. The Supreme Court, while considering the
question of liability arising out of an accident, has held that the expression
"owner" is not necessarily confined to the categories specifically mentioned
in Section 2(30). Where the context requires, a person having command or
control over the vehicle may also be treated as the owner for the purpose of
fixing tortious liability.


Actual possession, control and constructive possession

13. In Godavari Finance Company v. Degala Satyanarayanamma, (2008)
5 SCC 107, noticed and followed in Vaibhav Jain ( supra), the Supreme
Court observed that ordinarily the person in whose name the registration
certificate stands should be presumed to be the owner, but such presumption
is not conclusive where other material is available or the context otherwise
requires. The Court further emphasised that possession or control of the
vehicle plays an important role in determining liability.

14. The concept of constructive possession also requires consideration.
Constructive possession does not mean mere physical possession. A person
may be treated as being in constructive possession where, though the vehicle
may physically be with another person, the former retains the legal or
effective right of control over its use.

15. In Vaibhav Jain ( supra), the Supreme Court considered the position of
a dealer who was in constructive possession of a vehicle. The Court
ultimately held that the dealer could not be made liable because the vehicle,
at the time of accident, was actually under the command and control of the
manufacturer through its own employees. Thus, the decisive consideration
was not merely who had physical or constructive possession, but who had
effective command and control over the vehicle at the relevant time.

16. The Supreme Court specifically held that the concept of "owner" is not
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limited to the categories mentioned in Section 2(30) and, where the context
so requires, a person at whose command or control the vehicle is may be
treated as its owner for fixing tortious liability.

Principles from the cases noticed in Vaibhav Jain ( supra)


The following judgments noticed by the Supreme Court are relevant:


(a). Godavari Finance Company v. Degala Satyanarayanamma, (2008) 5
SCC 107 – registration in a person's name ordinarily raises a presumption of
ownership, but possession and control are relevant where the context
otherwise requires.

(b).   Rajasthan State Road Transport Corporation v. Kailash Nath
Kothari, (1997) 7 SCC 481 – the person having actual possession and
control of the vehicle and under whose direction and command the driver
operates may be treated as owner for fixing vicarious liability. The principle
was, however, considered in the context of the definition under the old
Motor Vehicles Act.

(c) National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 –
where the vehicle was requisitioned by the State and the registered owner
had lost control over it, liability could not simply be fastened upon the
registered owner on the basis of registration alone.

(d) Guru Govekar v. Filomena F. Lobo, (1988) 3 SCC 1 – the question of
liability of the owner in circumstances where the vehicle is in possession of
another was also considered.

(e) Ramesh Mehta v. Sanwal Chand Singhvi, (2004) 5 SCC 409 – where
the context makes the statutory definition inapplicable, the expression has to
be understood having regard to the context.

The most important principle for the present case, however, is that the
question is not merely who was the registered owner on the date of accident,
but who, in the circumstances proved on record, had ownership, possession
and effective command/control over the vehicle at the relevant time.

Finding in the present case

17. In the present case, it is not disputed that the accident occurred on
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23.08.2006. It is also not disputed that the tractor was not registered on the
said date. The registration was subsequently made on 02.09.2006. The sale
letter in favour of respondent Chandra Shekhar is stated to have been issued
on 26.08.2006, i.e. three days after the accident. Thus, if the sale letter is
treated as the document constituting the transfer of ownership, the
documentary evidence would indicate that such transfer took place after the
accident. However, the question before this Court cannot be decided merely
on the basis of the date of the sale letter or the subsequent registration
certificate. The Court has to examine who was in actual possession and
control of the tractor on 23.08.2006.

18. The appellant's specific case is that the tractor had already been sold
and delivered to respondent Chandra Shekhar before the accident and that,
on the date of accident, it was in his possession and control. The appellant
has also relied upon the earlier judgment dated 19.08.2008 passed in MAC
No.350 of 2006, arising out of the same accident, wherein the learned
Tribunal held Chandra Shekhar liable for satisfying the award. On the other
hand, the respondent relies upon the fact that the sale letter was issued on
26.08.2006 and the vehicle was registered on 02.09.2006.

19. In my considered view, the subsequent issuance of the sale letter and
registration certificate cannot by themselves conclusively establish that the
appellant continued to have actual possession and control of the vehicle on
the date of accident. The relevant question is the factual position existing on
23.08.2006. The principle laid down in Vaibhav Jain ( supra) supports this
approach. The Supreme Court has attached importance to the person who
had actual command and control over the vehicle at the time of accident. In
that case also, the Court examined whether the vehicle was under the control
of the dealer or the manufacturer through its employees and, finding that the
manufacturer retained command and control, fastened liability accordingly.

20. Therefore, if the evidence on record establishes that before 23.08.2006
the tractor had been delivered to and was being used under the command and
control of Chandra Shekhar, the mere fact that the formal sale letter was
subsequently issued or registration was subsequently made would not, by
itself, be sufficient to fasten tortious liability upon the appellant. It is evident
from the pleadings in M.A.C. P No.350 of 2006 that the said tractor at the
time of accident was driven by Lalu son of Chandra Shekhar
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Effect of the earlier award

21. There is another important circumstance. The accident in question gave
rise to another claim petition relating to the death of Smt. Sia Dulari. In
MAC No.350 of 2006, Suresh @ Chutkan and others v. Chandra Shekhar
and others, the learned Tribunal, by judgment dated 19.08.2008, considered
the question of liability and held Chandra Shekhar liable for satisfying the
award. The said finding was recorded in proceedings arising from the same
accident and concerning the same offending vehicle. The said judgment was
passed before the impugned judgment dated 18.09.2008.

22. Strictly speaking, the technical requirements of Section 11 CPC must
be satisfied before the doctrine of res judicata can be applied. However, even
where technical res judicata may not strictly apply because of differences in
parties or causes of action, a finding concerning the same material issue
arising from the same accident cannot be lightly ignored, particularly when it
has already been adjudicated by the competent Tribunal. At the least, such
earlier finding is a relevant circumstance requiring consideration to maintain
consistency in adjudication arising from the same occurrence.

23. In the present case, the earlier judgment assumes greater significance
because it relates to the same tractor, the same accident and the liability of
Chandra Shekhar. If that judgment has attained finality, there should
ordinarily be a strong reason for recording a contrary finding in another
claim arising from the very same accident.

Conclusion

24. Thus, applying the principles laid down by the Supreme Court in
Vaibhav Jain v. Hindustan Motors Pvt. Ltd., 2024 INSC 652, the decisive
consideration is the position of ownership coupled with possession and
effective command and control of the vehicle at the time of accident.

25. In the present case, the learned Tribunal appears to have placed
excessive reliance upon the subsequent sale letter and registration of the
vehicle without adequately examining the appellant's specific case that the
tractor had already been delivered to respondent Chandra Shekhar and was
in his possession and control on the date of accident. It was imperative on
part of it to consider that said tractor could not have been driven by Lalu
unless its possession and control had been delivered to Chandra Shekhar.
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                                    Further, the earlier judgment dated 19.08.2008 arising from the same
                                    accident, wherein Chandra Shekhar was held liable to satisfy the award, was
                                    also a relevant circumstance which required due consideration.

                                    26. Accordingly, the finding of the learned Tribunal fastening the entire
                                    liability upon the appellant cannot be sustained merely on the ground that the
                                    formal sale letter and registration were subsequent to the accident. The
                                    liability has to be determined with reference to the actual possession, control
                                    and command over the offending tractor on the date of accident. If the
                                    evidence on record establishes, as pleaded by the appellant, that Chandra
                                    Shekhar had already obtained possession and control of the tractor before
                                    23.08.2006, the liability for payment of compensation would fall upon him
                                    and not upon the appellant merely because the vehicle continued to stand
                                    unregistered on the date of accident.

                                    27. The appeal would, therefore, require consideration/modification of the
                                    award to the extent of liability, while the other findings of the learned
                                    Tribunal concerning the accident, injury, disability and quantum of
                                    compensation may be maintained unless independently challenged and
                                    found erroneous.

                                    28. Accordingly, the appeal is partly allowed. The impugned judgment and
                                    award passed by the learned Tribunal is modified to the extent that the
                                    liability to satisfy the award of Rs.2,71,150/- along with interest at the rate of
                                    6% per annum shall be upon respondent no.2, Chandra Shekhar, and the
                                    appellant shall not be liable to satisfy the said award.

                                    29. The remaining findings recorded by the learned Tribunal regarding the
                                    accident, injuries, permanent disability and quantum of compensation are
                                    affirmed.

                                    10. The amount, if any, deposited by the appellant before the learned
                                    Tribunal pursuant to the impugned award shall be dealt with in accordance
                                    with law

                                    September 3, 2026
                                    Mukesh
                                                                                                (Anil Kumar-X,J.)




Digitally signed by :-
MUKESH SRIVASTAVA
High Court of Judicature at Allahabad