- (1.) THE, facts giving rise to this second appeal by the defendant No. 1 M/s United Motors of Rajasthan may be stated as follows: On 29-4-1954 at about 10. 30 A. M defendant No. 3 Hargovind was driving motor bus No. RJL 306 on Sawai Mansingh Hospital Road in the city of Jaipur and the plaintiff was coming on a bicycle from the opposite direction. It is alleged that the right mudguard of the bus came in contact with the left knee of the plaintiff as a result of which the 'patela' of the plaintiff was broken to pieces and certain other in juries were also received by him on his head and other parts of the body. Consequently, the plaintiff filed the present suit on 27th April, 1955 in the Court of Civil Judge, Jaipur claiming damages to the tune of Rs. 3400/- against defendant No. 1 M/s United Motors of Rajasthan, defendant No 2 M/s Shanker Bus Service, Jaipur and defendant No. 3 Hargovind driver. THE plaintiff's case was that the bus by which the accident was caused was registered in the name of the defendant No. 1 who was consequently liable for payment of the damages on account of rash and negligent driving by their servant Hargovind. Alternatively the decree was claimed on the ground of vicarious liability against the defendant No. 2 as in reply to the notice served by the plaintiff on defendant No. 1, the latter had replied that the bus had been sold by them to defendant No. 2 as far back as on 7-8-1952. Thus to be on safe side besides the driver the plaintiff claimed decree for damages on the ground of vicarious liability either against defendant No. 1 in whose name the vehicle was registered or in the alternative against defendant No. 2, in case the Court found that the owner of the vehicle on the date of the accident was defendant No. 2.
(2.) THE suit was resisted by all the defendants who filed separate written statements. A notice of the suit was also given to the Motor and General Insurance Co. Ltd. , under sec. 96 (2) of the Motor Vehicles Act, 1939 (which will hereinafter be called the Act), but the Insurance Company did not contest the suit. After recording the evidence produced by the parties the trial court decreed the suit for Rs. 3367/- against the defendants Nos. 1 and 3 and also awarded pendente lite and future interest at the rate of /6/- % per cent per mensem on the aforesaid amount. Aggrieved by the judgment and decree of the trial court the United Motors of Rajasthan preferred an appeal in the Court of District Judge, Jaipur City who confirmed the decree of the trial court. Consequently, the United Motors of Rajasthan has come in second appeal to this Court. Learned counsel for the appellant has urged that the courts below have made out a new case for the plaintiff when they held that the sale of the bus in question by the defendant-appellant to defendant No. 2 Shanker Bus Service was illegal. He has submitted that the alleged sale of the bus has been fully proved to have taken place oh 7-8-52, a little less than two years before the date of the acci-dent, and the mere fact that the certificate of registration of the vehicle and the permit of the route on which the vehicle was being plied at the time of the accident stood in the name of the appellant, did not in any effect the vesting of the owner ship of the vehicle in the purchaser M/s Shanker Bus Service. He has also argued that the driver Hargovind was at any rate not in the employ of the appellant and was consequently not under their control, and was consequently not under their control, and therefore, the vicarious liability for damages on account of the accident alleged to have been caused by the driver Hargovind cannot be fastened on the appellant. . The two relevant issues framed by the trial court on the pleadings of the parties are these: "3. Whether the bus was sold before the accident by the defendant No. 1 to the defendant No. 2? 4. Whether the driver defendant No. 3 was in the service of the United Motors of Rajasthan or of Shanker Bus Service at the time of accident, and his master can be held responsible for damages?" While deciding issue No. 3 the learned Civil Judge, Jaipur City held "that the sale of the bus of the permit did take place on 7-8 1952 in favour of defendant No. 2, and the admissions made in the various applications to the authorities and relied on by the plaintiff's counsel were made only to avoid the cancellation of the route permit". As regards Issue No. 4 the finding of the trial court was that the transfer of the bus by defendant No. l to defendant No. 2 was illegal. The learned District Judge while deciding issues Nos 3 and 4 together held that, "from the statements of the above two witnesses D W. 2 Ramswaroop and P. W. 12 Prem Dayal, as conceded by the learned counsel for the parties, it is established that the bus RJL 306 was in the name of defendant No 1 and it was sold by him along with the permit for Rs. 19,000/- on 7-8-52 to defendant No. 2. He also held that "the permit has been made nontransferable under sec. 59 (1), and consequently the sale of the vehicle by defendant No. 1 along with the permit for plying the same on a particular route was illegal as being forbidden by law However, keeping in view the fact that the insurance and registration of the vehicle stood in the name of the defendant No. l (appellant) on the day of occurrence, defendant No. l was held liable to pay damages besides the driver defendant No. 3. In this view of the matter the learned District Judge dismissed the appeal. The first question that arises for determination in this appeal is whether the appellant has succeeded in proving that there was a valid and complete sale of the bus in favour of the defendant No 2? The argument given by the learned District Judge that because the permit for plying the bus on Jaipur Padampura route was also transferred along with (he vehicle in contravention of the provisions of sec. 59 (1) of the Act, and, therefore, the sale was illegal, does not appear to be correct. There is high authority in support of the proposition that the person in whose favour a permit has been issued need not necessarily be the owner of the vehicle covered by it In this connection reference may be made to Viswanatha vs. Shanumugham (1) in which their Lordships of the Supreme Court quoted with approval the following observations from the judgment of the Allahabad High Court in Khalil-ul-Rahman vs. State Transport Appellate Tribuqal (2): - "but it is by no means necessary that Cl. (c) of sub-sec. (1) of sec. 60 of the Act would be applicable to the case of every permit holder. There may be permit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle. This clause appears to apply only to the former case and not to the latter. On its basis, therefore, it cannot be held to be a requirement of the Act that in each case the person in whose favour a permit has been issued should necessarily be the owner of the vehicle covered by it. " It was also observed by the Supreme Court that there is nothing in the Act which expressly or by implication bars benami transactions or persons owning buses benami and applying for permits on that basis. In this view of the matter, the sale of the vehicle in question cannot be said to be illegal merely because the holder of the permit ceased to own the vehicle covered by it. The contrary view taken in Varadarajulu Naidu vs. Thavasi Nadar (3) that Sec. 12 (1) contemplates that only an owner will have a permit was held by their Lordships of the Supreme Court to be erroneous. The important question, therefore, is whether apart from the question of transfer of permit, the sale of the vehicle in question by defendant No. 1 to defendant No. 2 is proved to be complete and valid. Learned counsel for the respondent challenged even the factum of sale as having taken place on 7 8-1952. The learned District Judge referred to the statements of D. W. 2 Ramswaroop and P. W. 12 Prem Dayal in this connection and further observed that it was conceded by the learned counsel for the parties that the alleged sale was established. It may be pointed out that the question whether a fact is established or not cannot be decided by the concession of a counsel to whom of course it is open to give up certain allegations of fact on behalf of his client. But a finding of the Court cannot be given on the opinion expressed by a counsel that a certain fact was established. It was in my opinion the bounden duty of the learned District Judge to have given his finding on this question by an independent appraisal of the evidence brought on the record. It is true that defendant No. 2 in his written statement pleaded that the vehicle in question had been purchased by them on 7*8-1952 along with the permit for Rs. 19,000/- and D. W. 1 Dhalumal who represents defendant No. 2 has also stated that defendant No. 1 had hold the vehicle to defendant No. 2 on 7-8-1952. D. W. 2 Ramswaroop who is the representative of defendant No. 1 has of course supported his case. It is however significant that admittedly no application was made to the Registering Authority under S. 31 of the Act notifying the fact of transfer of the vehicle by defendant No. 2 till 21-11-1954. On the other hand D. W. 2 Ramswaroop has stated that the registration certificate of the vehicle continued in the name of the defendant No. 1 after the date of the sale. He has also admitted that defendant No. 1 applied for renewal of the permit after the alleged sale. It is remarkable that even in the application dated 2-11-1954 filed by defendant No. 1 before the Registering Authority it was stated that defendant No. 1 wanted to sell the bus in question to defendant No. 2 Not only that on 12-9-1952 defendant No. 1 made another application marked Ex. D. W 2/1 that a permanent permit for the bus in question may be granted to the defendant No. 1 as the existing permit was only a temporary one. He has also admitted that the registration fee and taxes of the bus in question were being paid in the name of the defendant No. 1. The trial court seems to have misread the letter Ex. D W. 2/x dated 7-8-1952, when it observes that by the letter "the transport registration authorities were also informed of the sale of the vehicle to defendant No. 2. " As a matter of fact it is clear enough from the statement of D W. 2 Ramswaroop that Ex. D. W. 2x was handed over to defendant No. 2 so that the defendant No. 2 may present it for getting its transfer in their name when they so like. It is also significant that no evidence has been produced as to in what manner and on what dates the payment of Rs. 19,000/- was made by the defendant No. 2 to defendant No. 1. D. W. I Dhalumal representative of defendant No. 2 has no doubt stated that defendant No. 2 had purchased the bus for Rs. 19,000/- in the month of August 1952, but the permit as well as the bus continued in the name of defendant No 1 till 1955. The receipt for Rs. 19,000/- is alleged to have been passed by defendant No. 1 to defendant No. 2 but the same has not been produced on the ground that it has been lost. The plaintiff is a third party to the alleged transaction of sale of the vehicle in question by defendant No. 1 to defendant No. 2, and, therefore, it was the duty of the defendant No. 1 to have produced reliable legal evidence to show that as a matter of fact the defendant No. 1 had completely divested himself of the ownership of the bus in question on 7-8-1952. It may be argued with some plausibility as in fact has been done that D. W. 1 Dhalumal partner of defendant No. 2 has made an admission against his own interest, and therefore, there is no reason to doubt the correctness of his statement on this point. Learned counsel has laid emphasis on the fact that by making such admission D. W. 1 has exposed himself to the liability for payment of the suit amount. This argument, however, fails to take note of" the fact that Dhalumal has further stated that the insurance of the bus continued in the name of the defendant No. 1, the United Motors of Rajasthan till the year 1955. It is further important to bear in mind that the insurance company inspite of notice having been served upon it under S. 96 (2) of the Act did not come forward to disown its liability for payment of damages under the insurance made by it. Apart from the circumstances which I have narrated above in some detail, it would be relevant to draw attention to certain provisions of the Act which have to be followed in case of transfer of a motor vehicle. S. 31 of the Act reads as follows: "31. (1) Where the ownership of any motor vehicle registered under this Chapter is transferred, - (a) the transferor shall, within fourteen days of the transfer, report the transfer to the registering authority within whose jurisdiction the transfer is effected and shall simultaneously send a copy of the said report to the transferee; (b) the transfere shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he resides, and shall forward the certificate of registration to the registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration. (2) A Registering authority other than the original registering authority making any such entry shall communicate the transfer of ownership to the original registering authority. "
(3.) IN Vimal Rai vs. Gurcharan Singh (4) it was observed: "10. There is another aspect of this matter. To my mind, the sale of a motor vehicle will not be governed by the ordinary law relating to sales of movable property. The Motor Vehicles Act, 1939 makes it compulsory for owner of a motor vehicle to get the motor vehicle registered with the Registering Authority (vide sec. 22 ). The Act prescribes by sec 24 the method of registra-tion of a motor vehicle and by sec. 31 of the transfer of ownership of a motor vehicle. A perusal of the various provisions of the Act leads to only one conclusion that ownership of a motor vehicle is to be evidenced by the registration as such with the Motor Registering Authority and the registration book, which is supplied is the document of title. I think the Act proceeds on the basis that it is only the ostensible owner who is entered as such in the registration books, who is to be considered to be the owner of the motor vehicle irrespective of the fact that the real ownership may be with somebody else. " For the purposes of this case it is not necessary to decide whether the ownership of a motor vehicle can be recognised only when the fact of transfer of ownership is reported to the Registering Authority? But there is no doubt, in my mind, that by the provisions of sec. 31 of the Act responsibility has been placed both on the transferee and the transferor to report the fact of transfer to the Registering Authority within a certain time, and thus law requires some thing more for the sale of motor vehicles than what is necessary for sale of other immovable property. In view of the above mentioned circumstances, I have come to the conclusion that the sale of the bus in question by defendant No. 1 to defendant No. 2 on 7-8-1952 has not been fully established and the defendant No. 1 continued to be the owner of the vehicle on the date of the accident. Learned counsel for the appellant yet raised another important contention that the defendant No. 3 was not in the employ and control of defendant No. 1, and, therefore, no liability for damages can be fastened on defendant No. 1 on the principle of vicarious liability. In support of his contention he has placed strong reliance on the following passage in Gibb's Collisions on Land, Fifth Edition, at page 50: "the person who has the control of the deliver in the execution of his duty is sample, the person who is liable in law for his negligence. " The proposition laid down in the passage quoted above is correct so far as it goes. However, it may be observed that the word "control" has to be interpreted in the facts and circumstances of each case. In Liladhar vs. Harialal (5) it was observed that proof of ownership of the car afforded prima facie evidence that the driver at the time of the accident was the agent or servant of the owner, and that it was clearly established by a series of decisions that in action for damages proof by the plaintiff that the car which caused the accident belonged at the time to the defendant affords prima facie evidence that the driver of the car was the defendant's servant. The defendant of course can displace this presumption. It is significant that no endeavour has been made in the present case even to prove that Hargovind was in the service and control of defendant No 2. Neither Bhalumal nor Hargovind the driver himself has stared any where that Hargovind was in the service and control of the defendant No. 2. Apart from that, assuming for the sake of argument that the defendant No. 2 was managing the service, there being no valid and complete sale of the bus in their favour it cannot be presumed that the liability of the owner of the vehicle came to an end merely because the service was not being managed directly by defendant No. 1. The learned counsel for the appellant laid great emphasis on the fact that Hargovind has stated that on the vehicle 'shanker Bus Service' was mentioned as the name of the owner. This, in my opinion, can furnish no evidence in support of the fact that Hargovind was in the employ of Shanker Bus Service. Mention may be made here that at the time of the accident the bus was being plied on the route covered by the permit, and, therefore, there is no room for argument that the accident took place while the driver Hargovind was not working in the course of his duty or employment. To conclude I may also mention that not only the permit and the registration certificate of the vehicle in question were in the name of defen-dant No. 1 on the date of the accident, but even the insurance of the vehicle stood in the name of defendant No. 1 till 1955. It is not the case of the Insurance Company that the policy had lapsed on account of any act on the part of the insured. No other point was pressed. ;