Hari Nath Tilhari, J.
1. This appeal under Section 110-D of the Motor Vehicles Act, arises from the Judgment and Award dated 19.7.1991, given by the District Judge and Member of the Accidents Claims Tribunal (Sri Mohammed Anwar), Chikmagalur, in M.V.C. Case No. 122/1989, dismissing the claim petition of the present appellant, on the ground that the claim petition at the instance of the claimant petitioner, that is present appellant was not maintainable as the Autorickshaw which had been damaged in the accident was not registered in the name of the claimant and claimant had no registration certificate in his favour irrespective of the fact that the evidence furnished in the case undisputedly exhibited that the Autorickshaw was purchased by the claimant for a sum of Rs. 31,000/-.
2. The facts of the case in brief are that on 7th February, 1989, at about 6.45 P.M., Autorickshaw bearing No. MEC 4154, driven by one Arun Kumar, met with an accident near Shankar Saw Mill on Chikmagalur to Kadur Road, in the Chikmagalur City. The occurrence had taken place on account of the fact that the lorry bearing Registration No. MEC 4116 belonging to respondent No. 1, was coming from the opposite direction being driven in a rash and negligent manner by its driver, and dashed against the Autorickshaw damaging the Autorickshaw of the present claimant-appellant on one hand as well as resulting in the death of the driver of that Autorickshaw. The two claim petitions were filed one by the parents of Arun Kumar, the deceased, which is Claim Petition No. MVC 116 of and the other Claim Petition No. MVC 122 of 1989 was filed by the present appellant, who claimed himself to be the owner of the Autorickshaw which has been damaged in the said accident. The claimant made a claim of damage to the tune of Rs. 25,000/- against respondents 1 to 3. The claimant - appellant's case has been that the truck was being driven in a negligent and rash manner and that is why, the accident did take place and excessive damage was caused to the Autorickshaw belonging to the claimant-appellant.
3. Respondent Nos. 1 and 2 remained ex-parte and do not appear to have preferred any objections or to have filed any written statement. The Insurance Company, which is Respondent No. 3, contested the claim of the claimant-appellant and filed the written objections.
In the present case, this appeal is confined to MVC Case No. 122/1989 and I am not concerned with the award given in MVC Case No. 116/1989.
4. After having framed the issues the Tribunal on the basis of the evidence produced by the parties, held that the occurrence did take place on account of the rash and negligent driving of the truck by Respondent No. 2, the driver of the truck. It further held that on account of that accident, the Autorickshaw of the claimant - petitioner was damaged. The Tribunal assessed the damage to the Autorickshaw to the tune of not less than Rs. 10,000/-. The Tribunal has also assessed that the claimant suffered the loss of income for 10 days at the rate of Rs. 30/- per day amounting to Rs. 300/- and thus, held that the claimant had incurred the total monetary loss to the tune of Rs. 10,300/- to get his Autorickshaw fully repaired.
5. The Tribunal inspite of the above findings, dismissed the claim of the claimant-appellant taking the view that though it is in the unchallenged evidence of the petitioner that petitioner-claimant had indeed purchased the said Autorickshaw for a sum of Rs. 31,000/- from its previous owner - Sh. Parmeshwara under Ex. P12, but he did not get his ownership registered and so he is not the registered owner thereof. For want of the transfer of ownership in the registration certificate and as he has not got the registration of transfer of ownership of the vehicle certificate from the Authorities under the Motor Vehicles Act with reference to the Autorickshaw, the claimant - petitioner could not file the claim petition under Section 110-A of the Motor Vehicles Act, as he is not the registered owner or like the expression of the owner as mentioned in the Motor Vehicles Act. He also opined that the claimant not being the registered owner, he was incompetent to maintain the claim under Section 110-A of the Motor Vehicles Act. On the just pure and simple technical plea, the claim petition had been rejected by the Motor Accident Claims Tribunal.
6. Aggrieved from the order of the Tribunal, the claimant in MVC No. 122/ 89, has come up in appeal.
7. I have heard Mr. D.L. Suresh, learned Counsel for the appellant and Mr. H.G. Ramesh, learned Counsel appearing for respondent No. 3. None has appeared on behalf of respondent Nos. 1 and 2.
8. The learned Counsel for the appellant submitted before me that the Tribunal has erred in law in dismissing the claim petition as well on the basis of an erroneous decision on the question of maintainability of the petition, the Tribunal has illegally refused to exercise jurisdiction to award the compensation, irrespective of it's having found that the claimant -appellant had suffered damage and loss. The learned Counsel for the appellant contended that the Tribunal misconstrued Clause (aa) of Section 110A which uses the expression 'by owner of the property'. Learned Counsel urged that the decision on the basis of which the learned Tribunal has taken the view that, as the claimant has not got the registration certificate of the transfer of ownership, his claim petition was not maintainable. That decision in the case of Ramaiah Shetty v. Meena and Ors. ILR 1991 Kar. 937=II (1991) ACC 728, firstly had no application to the facts of this case, as subsequently that decision has been overruled by a Full Bench of this Court. Learned Counsel for the appellant submitted that it has been proved by the evidence led by the claimant that he was owner of the property and he had purchased the Autorickshaw for Rs. 31,000/- as found by the Tribunal itself. The learned Counsel for the appellant further urged that, as the petitioner had purchased the Autorickshaw, he became the owner of the Autorickshaw that had been damaged in the accident. The learned Counsel submitted that the definition of the 'owner' as given in the Motor Vehicles Act, may not apply with reference to the construction of section and will not apply in connection with the interpretation of expression 'owner of the property'. The learned Counsel further submitted that the damage that has been awarded to the tune of Rs. 10,300/- is insufficient. He submitted that the assessment report indicated that the fact is it is the tune of Rs. 13,000/- and odd including repairs charges. The learned Counsel further submitted that the repairs charges have been added to it, because the person who is repairing, will take his charges, his estimation was about Rs. 2,000/-. Therefore, the learned Counsel for the appellant submitted that he should have been awarded repair charges also towards the damages which he would have to pay. Sri Suresh, the learned Counsel submitted that the award of damage towards loss of income at the rate of Rs. 30/- is too low and the damages should have been awarded at the rate of Rs. 40/- per day. He therefore, submitted that the claim petition may be allowed. Respondents 1 and 2 are not represented none appears on their behalf.
9. The contentions made on behalf of the appellant have been hotly contested by Mr. H.G. Ramesh learned Counsel appearing on behalf of Respondent No. 3 Sri H.G. Ramesh, no doubt very fairly submitted that so far as the definition of owner is concerned, the decision in Ramaiah Shetty's case has been overruled and registration certificate or non-registration of ownership did not effect the title of the person, if he is proved to have purchased it, but definitely burden will be on the person, who alleges that somebody else than he himself is the owner of the vehicle and that its ownership has been transferred, to prove that the expression "owner of the property" has to be looked and examined he further submitted that in it's context of its use in Section 110-A which is analogous to Section 166(16) of the New Motor Vehicles Act. Mr. Ramesh further submitted that no cross-objections or appeal, has been filed challenging the assessment of damage, but as the enhanced claim is being made, it is open to him to file them. He firstly, submitted that assessment which has been made by the Tribunal is justified and does not require enhancement. If at all repair charges may be added, definitely for repairs, the claimant only would have been required to pay. Mr. Ramesh, further submitted that in view of the law which stands, the liability of the Insurance Company is limited to the tune of Rs. 6,000/- and no more, in view of the provisions of the Old Act which is analogous to Section 147(26) of Motor Vehicles Act, 1988.
10. I have applied my mind to the contentions made by the learned Counsels for both the parties. As regards the maintainability of the application, Section 110 of the Motor Vehicles Act, 1939, provides that application shall be maintainable by the owner of the property.
11. The question before this Court is how the expression 'owner of the properties' is to be interpretated. No doubt, expression 'owner' has been defined in Section 2(19) of the Act of 1939 as under:
Owner means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement.
The definition of 'owner' as given in this Act does not appear to be exhaustive and it cannot be applied in order to interpret the expression 'owner of the property'. Section of the Act 2 per se states in this Act that, unless anything repugnant in the subject or context, the expression will be interpreted in ordinary course as defined or expressions may mean as defined. Here, in this case 'owner' expression has been used in a different manner not only in context of a motor vehicle which has been used in the context of a person, whose property has been or stands damaged on account of the motor accident taking place. The question is whether the person, whose property other than a motor vehicle has been damaged, is he entitled to make the application for compensation or for award of compensation against the owner and driver of the motor vehicle, by or due to the rash and negligent driving whereof, the occurrence did take place and the property of the claimant has been damaged which may not be a motor vehicle, but some property immovable or movable other man a motor vehicle as well. Be it an house, be it a platform or be it a movable property, when the legislature uses the expression 'owner of the property', it includes in itself the property of the third party and property damaged. In that context, the owner will have to be interpretated in the ordinary sense not in the sense as defined in Section 2(19). The property in its wider connotation may include movable property like the cycle, motor vehicle,, motor car, autorickshaw or any cattle belonging to the owner. Here the expression owner has been used in ordinary parlance and not in the technical sense in which it is used or as it has been defined in Section 2(19). Here, owner is the person, who has got any title over the property. A person having title or right or interest in or over certain property and his property is damaged, or that property has been damaged, on account of rash and negligent driving by the owner or driver of the motor vehicle, then the owner or driver of the motor vehicle, then the owner of that property is entitled to file a claim petition and when he claims that to have been maintainable, what has to be looked into is: Whether the transfer of title possession thereof has been made in accordance with the requirements of the provisions of the law ? In case of immovable property, transfer is required to be made in accordance with the law of Transfer of Property Act, and Registration Act. With respect to the movable properties, the Sale of Goods Act applies and transfer can be made in accordance with that procedure, and the registration under the Sale of Goods Act, may not be requirement and in those cases, the evidence of acquisition of title, possession thereof, oral or documentary may be sufficient to prove such transaction or be considered to be sufficient for the purpose. Even in respect of Autorickshaws and motor vehicles under the Sale of Goods Act, the transfer can be made in ordinary manner as transfers of their movable property i.e., goods is made. It may be a case that motor vehicle may not be used or may not be permitted to be used by the transferee unless and until he obtains a licence and a registration certificate in his favour registering the transfer of vehicle or may be subject to any penalty or fine or the like for not taking steps to get the certificate under Section 50(1) or (2) of the Act of 1988 or similar provisions of Act of 1939, but that will not affect the transfer of validity for the reason, if the transfer of ownership has taken place in ordinary course of transaction under Sale of Goods Act, the ownership and any title in right no doubt, stand transferred. When I so opine, I find support from the Full Bench decision of this Court in the case of Paragounda v. Bhimappa, ILR 1992 Kar. 3709, it will be profitable to quote the following observations from that decision:
12. Section 31 of the Act provides the procedure as to how the transfer of ownership of a motor vehicle is to be reported by the transferor and the transferee. The obligation is cast both upon the transferor and the transferee to report the transfer to the Registering Authority. It is incumbent upon the transferor to report the fact of transfer to the Registering Authority within whose jurisdiction the transfer is to be effected, within fourteen days of the transfer, and he shall simultaneously send a copy of the said report to the transferee. The transferee has also similar obligation and to forward the Certificate of Registration to the Registering Authority together with the prescribed fee and copy of the report received by him from the transferor in order that the particulars of transfer of ownership may be entered in the Certificate of Registration. These provisions have nothing to do with the ownership of the vehicles as it is well settled that the transfer of ownership of a vehicle, being a movable property, is governed by the Sale of Goods Act.
12. In this decision the Full Bench overruled the decision in Ramaiah Shetty v. Meena and Ors. (supra), on which the Hon'ble Member of the Tribunal placed reliance. This being the position, in the context of the facts of the present case, the Tribunal ought to have considered the submissions of the learned Counsel for the petitioner. That there has been substance in the submissions of the claimant's Counsel that there is evidence on record to prove that the claimant purchased the Autorickshaw for Rs. 31,000/- from Parmeshwara Rao under Ex. P12. The Tribunal firstly erred in not considering this substantive evidence. In support of the claim, the claimant has examined himself before the Tribunal as PW 4. To prove his title, the claimant produced himself as a witness. PW 4 has stated in his evidence that he had purchased the Autorickshaw as per letter or document (Ex. P12) for Rs. 31,000/-. Parmeshwara Rao> who is alleged to be the previous owner, only he is a person who could have challenged the ownership. When the previous owner Parmeshwara Rao does not challenge and PW4 has stated that he had purchased the Autorickshaw and he has produced the deed in summary proceedings, and this has been sufficient enough, alongwith deposition of PW 4 to prove that the claimant had purchased the Autorickshaw and was the owner of the Autorickshaw which had been damaged in the accident in question. The act of not challenging the ownership of the claimant-appellant by Parmeshwara Rao, is a circumstance that again goes in favour of claimant, then it had been transferred by Shri Parmeshwara Rao in appellant-claimant's favour if it had been stolen or taken by stealthly or it had been taken forcibly, definitely Parmeshwara Rao would have lodged a report or would have taken some action, no such circumstance has either been alleged or proved by the respondent. That Parmeshwara Rao being previous owner when he himself also does not challenge, the title or ownership of claimant nor any adverse circumstances as referred to above has been brought or established, the oral, documentary and circumstantial evidence go in favour of supports the case of claimant. In this view of the matter in my opinion, this evidence is sufficient enough to prove that the claimant has been the owner of the vehicle.
13. That the claimant has proved to be the owner of the vehicle, even if registration certificate has not been issued so far, it cannot be said that the claim petition under Section 110-A could not be maintained by the present claimant.
14. In my opinion for the reasons mentioned above the finding of the Tribunal and the order of dismissal of the claim petition is hereby set aside holding that the claim petition has been maintainable. As regards the damage no doubt, the evidence furnished on behalf of the petitioner indicated that it was assessed to the tune of Rs. 13,000/- and odd including the repairs. It is also clear that in the estimation, the value of the damaged part has not been assessed. In my opinion, damages to the tune of Rs. 10,000/- has been rightly assessed, but no doubt the repair charge would have to be paid by the claimant, those charges are being assessed at the sum of Rs. 1,000/- tentatively. For the 10 days, the claimant had not worked and could not work and had suffered the loss of his earnings. The claimant's evidence is that his daily earnings were 30 to 40 rupees a day. Loss for the earnings could have been assessed at the rate of Rs. 40/- and for the period of 10 days, it will come to Rs. 400/-. Thus, the claimant suffered monetary loss to the tune of Rs. 11,400/- and is entitled to be awarded damages in all to the tune and the sum of Rs. 11,400/-.
15. The learned Counsel for the respondent No. 3 submitted that Insurance Company is liable to the extent of Rs. 6,000/- as the present liability. In the present case, Ex. D1, is the insurance policy and on the date of occurrence, the vehicle, that is the lorry was subject-matter covered by insurance and was covered by the insurance policy, their period of duration policy was from 9.1.1989 to 18.1.1990. Under the head of Section II - liability to third parties, it is mentioned at 1(ii) which read as:
1. Subject to the limits of liability the Company will indemnify the insured against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of (ii) damage to property caused by the use (including the loading and/or unloading) of the motor vehicle.
The limit of what is the liability in this regard is provided at Page 4. It reads limit of the amount of Company's liability under Section II-1(ii) in respect of any one claim or series of claims arising out of one event: Rs. 50,000/-.
16. In view of the terms of the policy, the extent of the policy is up to the tune of Rs. 50,000/-. In this view of the matter in my opinion, there is no substance in the contention of the learned Counsel for the Insurance Company - Mr. H.G. Ramesh that the extent of liability is Rs. 6,000/- and thus considered, in extent of the liability of Insurance Company in the present case, extends to the tune of Rs. 50,000/-relating to damages to the 3rd party property. Here, as the damages are awarded to the extent of Rs. 11,400/-, the sum awarded is covered by the liability of the Company. Thus considered in my opinion, this appeal deserves to be allowed and is hereby allowed. The claimant is awarded a sum of Rs. 11,400/- as damages to the property with interest at the rate of Rs. 6% per annum payable from the date of the claim petition till the date of actual payment.
The claim is decreed against all the respondents with the costs of the appeal.