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2012 DIGILAW 214 (CHH)

Indusind Bank Ltd. v. Sonadhar Baghel

2012-08-22

NAWAL KISHORE AGARWAL

body2012
JUDGMENT : N.K. Agarwal, J. By this common award, Misc. Appeal Nos. 396, 395, 394 and 393 of 2001 are being disposed of as common facts & issues are involved in all the appeals and are arise out of same accident, leading case of which is MA No. 396 of 2001. All the appeals are directed against the award dated 27.09.1999 passed by the Motor Accident Claims Tribunal, Bastar (for short 'the Tribunal') in claim case Nos. 198/97, 153/96, 154/96 and 197/97 respectively. 2. As against compensation of Rs. 16,07,000/- & Rs. 15,04,000/- (in MA Nos. 396/01 & 394/01 for death of Laxmanram) and Rs. 13,96,000/- and Rs. 14,48,000/- (in MA Nos. 395/01 & 393/01 for death of Mahendraram) separately claimed by the unfortunate parents, and widow & children of deceased u/s 166 of the Motor Vehicle Act, 1988 (for short 'MV Act') for death of their bread-earner in the motor accident on 20.08.1996, the Tribunal awarded a total sum of Rs. 2,30,000/- (in MA Nos. 396/01 & 394/1 jointly) and Rs. 2,34,000/- (in MA Nos. 395/01 and 393/01 jointly) as compensation along with interest @ 12 percent per annum from the date of application till its actual payment. 3. The Tribunal, on a close scrutiny of the evidence led, held : the accident had occurred due to rash and negligent driving of Tempo Tracks bearing registration No. MP-25-B-0273 by its driver/Sarvesh Kumar Rathore; Laxmanram and Mahendraram died on account of injuries sustained by them in the said accident; Ashok Leyland Finance Ltd. who was financer of the vehicle under Hire-Purchase agreement also liable for payment of compensation to the claimants along with respondent No. 8 & 9/driver and owner; assessed and awarded aforesaid sum in favour of claimants. 4. During pendency of appeal, Ashok Leyland Finance Ltd. merged with Induslnd Bank Ltd. and Induslnd Bank has been substituted in place of Ashok Leyland Finance Ltd. 5. Shri Ashish Surana, learned Counsel appearing for the appellant contended, the vehicle in question was financed by the appellant under Hire-Purchase agreement and indisputably the vehicle was in possession of respondent No. 9 at the time of accident. Shri Ashish Surana, learned Counsel appearing for the appellant contended, the vehicle in question was financed by the appellant under Hire-Purchase agreement and indisputably the vehicle was in possession of respondent No. 9 at the time of accident. As per Section 2(30) of the MV Act, "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement, and therefore, the Tribunal has erroneously passed the award against the appellant ignoring the above definition of the 'owner' of the vehicle. By placing reliance upon the judgment of Supreme Court in case of Pradeep Kumar Jain Vs. Citibank and Another, (1999) 6 SCC 361 it was further contended that the Tribunal has erred in fastening liability of payment of compensation upon the appellant imposing liability of renewal of insurance policy upon the appellant. 6. Per contra, Shri RN Jha and Shri Subhash Yadav, learned Counsel appearing for the respondents/claimants supported the award impugned. 7. I have heard the counsel appearing for the parties and perused the order impugned including records of Tribunal. 8. Whether or not the financer can be held liable for payment of compensation is a question for determination of this court in the aforesaid cases. 9. u/s 2(30) of the MV Act, "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. 10. Further, u/s 166 of MV Act, where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be liable to pay compensation therefor. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. 10. Further, u/s 166 of MV Act, where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be liable to pay compensation therefor. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, having regard to sub-section (2) of Section 147 of the Act, is mandatory in character, the insurance company would statutorily be enjoined to indemnify the owner. 11. Thus, under the MV Act, the liability of payment of compensation is fastened upon the owner of the vehicle and not upon the financer of the vehicle. Indisputably, the respondent No. 9 is the owner of the vehicle who purchased the vehicle under Hire-Purchase agreement from the original appellant i.e. Ashok Leyland Finance Ltd. and also was in possession of the said vehicle at the time of accident. Therefore, in terms of Section 2(30) of MV Act, the respondent No. 9 was the owner of the vehicle liable for payment of compensation to the claimants and not the appellant/financer under the scheme of the Act. 12. There is no material on the record to hold respondent No. 9 has deposited any amount with the appellant towards the premium of insurance. Moreover, the MV Act casts duty upon the owner of the vehicle to get it insured and not upon the financer [Please see Pradeep Kumar Jain Vs. Citibank and Another, (1999) 6 SCC 361 . 13. Therefore, the Tribunal has certainly fallen in error in fastening the liability of payment of compensation upon the appellant/financer along with owner and driver of the vehicle imposing liability of renewal of insurance policy upon the appellant, and the same is not sustainable in law. 14. For the forgoing reasons, the appeals are allowed in part. Part of the award by which the liability has been fastened upon the appellant to pay compensation to the claimants is set aside. Award is modified to the above extent. Rest of the conditions mentioned in the award shall remain intact. The claimants are entitled to execute the award against the respondent/driver and owner of the vehicle. Part of the award by which the liability has been fastened upon the appellant to pay compensation to the claimants is set aside. Award is modified to the above extent. Rest of the conditions mentioned in the award shall remain intact. The claimants are entitled to execute the award against the respondent/driver and owner of the vehicle. Appellant/financer is also entitled to recover the amount deposited by it & disbursed to the claimants, if any, from the respondent/driver and owner, by filing execution petition before the concerned claims Tribunal. No order as to costs.