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2002 DIGILAW 1285 (RAJ)

Vipul Motors v. Sushila

2002-07-24

O.P.BISHNOI

body2002
JUDGMENT 1. - These appeals have been filed against an award passed by the Motor Accident Claims Tribunal, Rajsamand S.B. Civil Misc. Appeal No. 179/2002 has been filed by M/s. Vipul Motors Limited, Faridabad and S.B. Civil Misc. Appeal No. 300/2002 has been filed by M/s. Ketan Brothers Exports, Mumbai. 2. The claim petition under section 166 of the Motor Vehicles Act, was filed before the said Tribunal by the respondents No. 1, 2 & 3 in connection with the death of Dilip Singh in accident on 8.2.1995. The respondent No. 1 is the widow of the deceased and respondents No. 2 & 3 are minor sons. According to the petition, on 8.2.1995 at about 5.45 p.m. the deceased-Dilip Singh was going on bicycle on the highway and near Village Ganga Ji Ka Kheda he was hit by a Maruti Esteem car bearing temporary No. HRU-0052A (Chasis No. 0306089). In all the claim for Rs. 16,50,000/- was filed and it was mentioned that the respondent No. 4 was the driver at the time of accident. Further it was stated that the appellants-M/s. Vipul Motors Limited, M/s. Ketan Brothers Exports and M/s. Maruti Udhyog Limited (respondent No. 5) were the owners of the said car and hence, were made parties in the petition. 3. The respondent No. 4 who was allegedly the driver of the car in question in his reply stated that the car which was being driven by him, was never involved in the accident in question. It was denied that Dilip Singh was struck by his car. It was further stated that the respondent No. 4 was the driver of the car bearing No. HRU-0052A but it was stated that somewhere between Bheem to Kamlighat, the said car was struck by a truck bearing No. RJ-14G-3627, as a result of which the respondent No. 4 suffered injuries and lodged the FIR No. 21/95 at Police Station, Bheem. According to his reply, the FIR pertaining to the death of Dilip Singh was numbered 20/95 and in this way, the respondent No. 4 cannot be held liable for the accident, in which, Dilip Singh died. The respondent No. 4, however, in his reply failed to make a mention as to on whose behalf and under what circumstances, he was the driver of the car bearing No. HRU- 0052A. 4. The respondent No. 4, however, in his reply failed to make a mention as to on whose behalf and under what circumstances, he was the driver of the car bearing No. HRU- 0052A. 4. In the reply filed by the respondent No. 5 M/s. Maruti Udhyog Limited the plea was taken that M/s. Maruti Udhyog Limited was neither the owner nor the insurer nor the employer of the driver at the time of the accident and hence, the claim petition against M/s. Maruti Udhyog Limited was liable to be dismissed under Order 7, Rule 11 CPC. According to the reply, the goods in question stood transferred in favour of M/s. Vipul Motors Limited on 2.2.1995, when the vehicle was invoiced by M/s. Maruti Udhyog Limited in favour of M/s. Vipul Motors Ltd. 5. The stand taken by the appellant-M/s. Vipul Motors Ltd. was to the effect that as a dealer of Maruti Cars, the car in question was in their show-room. However, the same was taken delivery by the driver (respondent No. 4) on account of the authority letter issued by M/s. Ketan Brothers Exports and thereafter, the same was the property of M/s. Ketan Brother Exports and since M/s. Vipul Motors Ltd. received the payment from M/s. Ketan Brothers Exports, M/s. Vipul Motors Ltd. cannot be made a party in the capacity of the owner of the vehicle. 6. The reply filed by M/s. Ketan Brothers Exports was to the effect that neither the car was booked by them nor the delivery was taken by them. It was denied that any authority letter was issued by them. Further it was stated that the driver (respondent No. 4 was not their representative and he was never sent or authorised to take the delivery of the car. It was further denied that any payment by draft or cheque was made by M/s. Ketan Brothers Exports in lieu of the price of the car in question. Further, it was stated that the two drafts which were allegedly received by the appellant-M/s. Vipul Motor Ltd., were never issued or sent by M/s. Ketan Brothers Exports. Further, it was stated that three drafts totalling worth of Rs. 4,92,523/- were sent to M/s. Maruti Udhyog Ltd. (respondent No. 5) and a cheque of Rs. 14,727/- dated 25.1.1995 was issued for the Insurance Company by M/s. Ketan Brothers Exports. 7. Further, it was stated that three drafts totalling worth of Rs. 4,92,523/- were sent to M/s. Maruti Udhyog Ltd. (respondent No. 5) and a cheque of Rs. 14,727/- dated 25.1.1995 was issued for the Insurance Company by M/s. Ketan Brothers Exports. 7. Issues were framed and the evidence of the witnesses produced by the parties was recorded. Smt. Sushila @ Gulabi and Narayan Singh were examined by the claimants Surendra Kumar was examined on behalf of M/s. Maruti Udhyog Ltd. Ratan Chand Bhatiya was examined by the appellant-M/s. Vipul Motors Ltd. and Hiten Mehta was examined by the appellant-M/s. Ketan Brothers Exports. The learned Tribunal then heard the arguments and the judgment was delivered on 9.11.2001. 8. It was found that the claimants were entitled to Rs. 2,62,800/- as damages. The petition was dismissed against the respondent No. 5-M/s. Maruti UTdhyog Ltd. The award was passed jointly and severally against the two appellants and the driver (respondent No. 4). The Tribunal did not give a finding as to who was the owner of the vehicle in question at the time of accident and made an observation to the effect that the learned Tribunal was not in a position to determine the ownership of the vehicle at the time of accident and the same shall be determined by a Civil Court. 9. I find that the learned Tribunal has shirked from the responsibility and has simply made an observation that the question of ownership of the car shall be decided by a Civil Court. Needless to say that an award can only be passed against the party when a finding is recorded to the effect that the concerning party was the owner of the vehicle. In the case at hand, there was a serious dispute regarding the ownership of the vehicle at the time of accident and it was not proper on the part of the learned Tribunal to not to decide the controversy himself. Strangely enough, no issue was framed in respect of the controversy regarding the ownership of the vehicle. Issue No. 3 has been framed unnecessarily in respect of the alleged objections filed by the Insurance Company. Needless to say that no Insurance Company was made a party in the proceedings and consequently, there was no reply or objections filed by any Insurance Company. Issue No. 3 has been framed unnecessarily in respect of the alleged objections filed by the Insurance Company. Needless to say that no Insurance Company was made a party in the proceedings and consequently, there was no reply or objections filed by any Insurance Company. It appears that the learned Tribunal failed to apply his mind and has produced a judgment which does not speak well of him. When the controversy was raised by the parties in proceedings regarding the ownership of the vehicle, it was incumbent upon the Tribunal to frame an issue in the light of the controversy raised and then decide the same properly. 10. In the result, both the appeals are allowed and the award and judgment delivered on 9.11.2001 is set aside. The matter is remanded back to the learned Tribunal with a direction that the issues will be recast and the parties shall be permitted to lead evidence in support of their contentions. The driver of the vehicle respondent No. 4 was a very important person who could tell as to in what capacity he received the delivery of the car HRU-0052A and whom he was representing when he got the delivery of the car. The learned Tribunal shall be at liberty to call and examine this witness suo motu if he fails to examine himself or is not examined by any of the parties.The parties are directed to appear before the learned Tribunal on 30.8.2002.Appeals allowed. *******