Jahir Khan S/O Hafiz Khan Pathan vs Lakhan S/O Dhaneshwar Date Thr. ...
2017 Latest Caselaw 3255 Bom

                                                  1              fa696.17.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR


                           FIRST APPEAL NO. 696 OF 2017


            Jahir Khan s/o Hafij Khan Pathan,
            aged about 52 years, Occ. Driver,
            R/o. At post Palandur, Tah. Lakhani,
            District Bhandara                                  ...... APPELLANT

                                ...VERSUS...

 1.         Lakhan s/o Dhaneshwar Date,
            aged about 16 years, Occ. Student,
            through his natural guardian father
            Dhaneshwar Vijay Date, aged Major,
            Occ. Labour, R/o. Mouda, Tah. Mouda,
            District : Nagpur.

 2.      Branch Manager, New India Insurance Co. Ltd,
         Rajkamal Commercial Complex, 2nd Floor,
         Panchsheel Square, Wardha Road,
         Nagpur.                           ......                    RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri V.N.Patre, counsel for appellant
 Shri   P.S.Mirache,  counsel  assisted  by Ms.  M.H.Pathade,  counsel  for
 Respondent no. 1
 None for respondent No.2
 -------------------------------------------------------------------------------------------
                          CORAM: S.B.SHUKRE, J.

th DATE : 16 JUNE, 2017 .

 ORAL JUDGMENT


            1]             Heard.

                           Admit

Record and proceedings is disposed with.

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Heard finally by consent of the learned counsel

appearing for the parties.

2] This appeal takes exception to the illegality and

correction of the judgment and order dated 13.02.2013

rendered in Claim Petition No. 1285 of 2006 by the Member,

Motor Accident Claims Tribunal, Nagpur.

3] Shri Patre, the learned counsel for the appellant

submits that the appellant was never the registered owner at

the time when the accident occurred involving the vehicle, a

jeep, bearing Registration No.MH-35/E-273 and therefore, no

liability to pay compensation could have been fastened upon

the appellant. In support, he invites my attention to various

documents proved in evidence, particularly the particulars of

registration and the certificate of registration of the motor

vehicle in question.

4] Mr. Mirache, the learned counsel for respondent

No.1, assisted by Advocate Ms. M.H.Pathade, submits that

the certificate of registration of the motor vehicle is a matter

of record and therefore, appropriate order may be passed.

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          5]               In  view  of   above,  following   points   arise   for   my

          determination.



                 (I)       Whether the appellant was the registered owner

of the vehicle in question at the time of the accident?

(II) Whether the impugned judgment and order are legal and proper in so far as they have the effect of fastening liability to pay compensation upon the appellant?

6] The copies of the documents proved in evidence

are already forming part of the paper book in this appeal. The

certificate of registration of the motor vehicle vide Exh.23

clearly shows that the vehicle in question, bearing

Registration No. MH-35/E-273, was initially owned by one

Israil Abdul Mazid Pathan and then it was owned by the

present appellant. It further shows that the ownership of this

vehicle was with the present appellant only during the period

from 11.10.2004 to 03.01.2006. It further shows that from

04.01.2006 till 19.12.2006, the ownership of the vehicle in

question was with one Smt. Annapurnabai Trambak Shete.

In other words, during the period from 04.01.2006 to

19.12.2006, Smt. Annapurnabai Trambak Shete was the

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registered owner of the vehicle in question. The accident

involving this vehicle occurred on 11.11.2006. Clearly, on the

date of accident, the registered owner of the vehicle in

question was Smt. Annapurnabai Trambak Shete. However,

this evidence, as seen from the impugned judgment and

order, has been completely ignored by the learned Member

of the Motor Accident Claims Tribunal, Nagpur. On the

contrary, the learned Member has recorded a finding that

admittedly the appellant was the owner of the offending

vehicle, a jeep bearing Registration No. MH-35/E-273. This

finding is perverse, it being not based upon the facts

established on record. This would impel me to hold that the

impugned judgment and order fastening liability to pay

compensation upon the appellant having been passed upon

the perverse finding is illegal and therefore, deserves to be

quashed and set aside, in so far as it adversely affects the

interest of the present appellant.

7] It is seen from the record of the case that the

registered owner on the date of the accident was not joined

as party, although it was the duty of the respondent No.1 to

do so. This circumstance together with what has been found

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by me earlier would necessitate remand of the matter back to

the trial Court for deciding it afresh with necessary

opportunity being granted to the claimant i.e. respondent

No.1.

8] In the result, the appeal is allowed. The

impugned judgment and order dated 13.02.2013 passed by

the Member, Motor Accident Claims Tribunal, Nagpur, in

Claim Petition No. 1285 of 2006 are hereby quashed and set

aside. The matter is remitted back to the Motor Accident

Claims Tribunal, Nagpur, for a decision afresh in accordance

with law. The liberty to join the registered owner on the date

of accident is granted to the claimant/respondent No.1. The

name of the appellant is directed to be deleted from the array

of respondents, he being not the registered owner at the

relevant time.

The amount, if any, deposited by the appellant in

this court, is permitted to be withdrawn by the appellant with

interest, if any.

JUDGE Rvjalit