Bombay High Court
Kisan Mahadeorao Zatale & Another vs Babubukha S/O Nabukha Pathan & Ors on 13 April, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.801 OF 2004
Shri Tekchand s/o Motiram Sawarkar,
Aged about Yrs. Occ: Agriculturist,
R/o Ambada, Tq. Morshi,
Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] The Member,
Name of R.No.1 Motor Accident Claims Tribunal,
deleted as per
Court's order dt.
Nagpur.
12-1-05
2] Shri Kisan s/o Mahadeorao Zatale
Aged about 43 years,
Occ: Retail Readymade Seller,
R/o Behind State Bank of India,
Morshi, Tq. Morshi, Dist. Amravati.
3] Smt. Shalini w/o Kisan Zatale,
Aged about 34 years,
Occ: Housewife, R/o Behind State
Bank of India, Morshi, Tq. Morshi,
Dist. Amravati.
4] Shri Girish s/o Malariram Rathod,
Aged major, Occ: Business,
R/o Police Line, Takli,
Behind Anand Nagar, Nagpur.
5] Babukha s/o Nabukha Pathan,
Aged about 43 years, Occ: Driver,
R/o Near House of Ghodeskar,
At Ambada, Tah. Morshi,
Dist. Amravati. ....... RESPONDENTS
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Mrs. R.D. Raskar, Advocate for Appellant.
Smt. S.W. Deshpande, Advocate for Respondent Nos.2 & 3.
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FIRST APPEAL NO.553 OF 2008
1] Shri Kisan Mahadeorao Zatale,
Aged about 45 years,
Occ: Retail Readymade Seller.
2] Smt. Shalini w/o Kisan Zatale,
Aged about 36 years,
Occ: Household.
Both R/o Behind State Bank of
India and Dr. Kuradan Hospital
at Morshi, Tah. Morshi,
District Amravati. ig ....... APPELLANTS
...V E R S U S...
1] Babukha s/o Nabukha Pathan,
Aged about 44 years, Occ: Driver,
R/o Near House of Ghodakasar
At Anbada, Tah. Morshi,
Dist. Amravati.
2] Shri Girish s/o Malariram Rathod,
Appeal dismissed Aged about major, Occ: Business,
against R.No.2 as per
Court's order dt. (Tempo-Trax bearing No.MH-31
16/7/07 passed in G-7099 R.T.O. Regd.owner),
C.A.No.6285/05 in
F.A.St. No.12973/05.
R/o Police Line, Takli,
Behind Anand Nagar, Nagpur.
3] Shri Tekchand Motiram Sawarkar,
Aged about Major, Occ: owner,
R/o Amboda, Tah. Morshi,
Dist. Amravati. ....... RESPONDENTS
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Smt. S.W. Deshpande, Advocate for Appellants.
Mrs. R.D. Raskar, Advocate for Respondent No.3.
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CORAM: R.K. DESHPANDE, J.
th APRIL, 2016.
DATE: 13
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ORAL JUDGMENT
1] In Claim Petition No.991 of 1998 filed under Section 166 of
the Motor Vehicles Act, the Motor Accident Claims Tribunal has passed
an award holding the appellant and the respondent No.5 in this case
jointly and severally liable to pay the compensation of Rs.1,20,000/-
with future interest at the rate of 9% per annum from the date of filing
of the petition 07.09.1998 till its realization. The operative part of the
award dated 06.09.2004 is reproduced below:
1. Petition is partly allowed with proportionate cost.
2. Respondent No.1 and 4 do pay Rs. 1,20,000/- (Rs. One lakh
Twenty Thousand only) to the petitioners jointly and severally
with future interest @ 9% P.A. from the date of petition i.e.
17-9-1998 till realization.
3. Claim against respondent No.2 is dismissed. He shall bear his
own cost.
4. Compensation is inclusive of interim compensation and it be
given credit.
5. Court fee if not paid, be recovered.
6. Award be drawn accordingly.
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2] The point for determination is as under:
[i] Whether the Motor Accident Claims Tribunal was right in
holding that the appellant as the owner of the offending
vehicle i.e. Tempo Trax bearing registration No.MH-31
G-7099 and the respondent No.5 the driver of the offending
vehicle has jointly and severally liable to make the payment
of compensation?
[ii] Whether the award passed by the Motor Accident Claims
Tribunal is liable to be modified, if yes, to what extent?
3] Undisputedly, the offending vehicle is the Tempo Trax
bearing registration No.MH-31 G-7099, which was being driven at the
time of accident on 21.07.1998 by the respondent No.5 - Babukha s/o
Nabukha Pathan. It is also not disputed and rightly the finding of the
Tribunal also that the respondent No.4 in this appeal Girish Malariram
Rathod is the registered owner of the offending vehicle. The stand of the
respondent No.4 before the Tribunal was that he had sold the vehicle to
the appellant on 01.01.1997 i.e. prior to the date of the accident, and he
has produced the receipt of same at Exhibit 56. He entered the witness
box. The receipt at Exhibit 56 is disputed by the appellant, who has
urged that he is neither the owner of the offending vehicle nor had
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employed the respondent No.5 as the driver of the vehicle.
4] The question is whether in the facts and circumstances of
the case, the appellant could be held liable to make the payment of
compensation as the owner of the offending vehicle. The point is no
longer res integra in view of the decision of the Apex Court in case of
Pushpa alias Leela and others v. Shakuntala and others reported in AIR
2011 SC 682, wherein it is held that in the absence of any steps taken by
the transferor nor transferee to change the name of owner in the
certificate of registration the liability to pay the compensation would be
that of the registered owner of the vehicle. The Apex Court has taken
into consideration the definition of the owner under Section 2(30) of the
Motor Vehicles Act. In view of this, it has to be held that the Tribunal has
committed an error in holding that the appellant, who was not the
registered owner of the offending vehicle on the date of occurrence of
accident as jointly and severally liable to make the payment of
compensation. The award of the Tribunal to that extent needs to be set
aside.
5] The claimant has preferred First Appeal No.553 of 2008
which is also admitted. In the said appeal the registered owner Girish
Malhariram Rathod was joined as party respondent No.2. The appeal has
already been dismissed against the respondent No.2, the registered
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owner of the vehicle, as per the order dated 16.07.2007. In view of this,
the appeal preferred by the claimant cannot proceed further for the
adjudication on merits.
6] In view of above, both these appeals are disposed of by an
order as under:
[i] First Appeal No.801 of 2004 is partly allowed by setting
aside the award passed by the Motor Accident Claims
Tribunal on 06.09.2004 in Claim Petition No.991 of 1998 to
the extent it holds the appellant jointly and severally liable
to make the payment of compensation to the claimant.
The claim petition to the extent preferred against the
appellant is dismissed.
[ii] Rest of the order passed by the Tribunal against the driver
of the vehicle does not call for any interference.
[iii] The First Appeal No.553 of 2008 preferred by the claimant
is dismissed.
7] It is informed that the appellant has deposited an amount of
Rs.50,000/- in the First Appeal No.801 of 2004. The claimant is
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permitted to withdraw said amount along with the interest, if any,
accrued thereon which was permitted to be withdrawn by the
respondent Nos.2 and 3 - claimants. Accordingly, the amount appears to
have been withdrawn by the respondent Nos.2 and 3. In view of the
aforesaid order, it shall be open for the appellant to recover the amount
paid and received by the respondent Nos.2 and 3 in accordance with law.
No costs.
ig JUDGE
NSN
