-^- ^^ INTHEHON'BLEHIGHCOURTOF^HNATTISGARHAT BILASPURfC.G.y M.A. (C) N0. ^1 ^y r-of 2010 ^ OIvisionBancl A^ELLANT VERSUS MSPONDENTS/ ^ ^ /^CIaimarits ^,^ [^- .•^..%^ ^•^^ ^. ^o - ^ ^ 3- 4.. 5. ^. 7. ^' -axminarayan I Roy, S/o Premnarayan Roy, aged abQut ... years/R/o Narmada Nagar,Bilaspur, Tahsil & DistrJct-Bilaspur (C.G.). Kumari Bai, IW/Q Late Bedram Dhruw, aged about40 years, Ku. Sonmati, iD/o Late Bedram Dhruw, aged about 21 years, Ku. Sarjta, D/o Late Bedram Dhruw, aged about 18 years, Pardeshin Bai^iW/o Late Mahavir Dhruw, aged about 60 years, Al! R/o Village Chunchunia, Tahsi!- . Mungeli, District-Bjlaspur(C.G.) At present Village-Temari, P.S.- Nanghat, Tah&il-Mawagarh,District- Durg(C.G.) Smt. Vinita Roy, W/o Manoj Roy, aged about 25 years, R/o Narmada Nagar, Bilaspur, District-Bilaspur (C.G.) (Respondent) Vishnu Agrawal, S/o B.L. Agrawal, aged about 28 years, R/o Main Road, Bilha; Tahsil-Biiha, District- Bilaspur (C.G.) (Respondent) Yogesh Agrawat, S/o K.S. A-gr^wal, aged about 27 years, R/Q Main Road, Bilha, Tahsii-Biiha, Distnct- Bitaspur(C.G.) (Respondent) Manoj Kumar Kewat, S/o Chheduram Kewat, aged about 25 years, R/o Chunchunia, P.S.-hlirri, District-Bilaspur(C.G.) (Respondent) CLAIM BEFORE THE TRIBUNAL : Rs. 68,00,0007- AWARDAMOUNT : Rs. 3,25,000/-^" VALUATION OF THE PRESENT APPEAL: Rs. 3,25,000/-^ MISCELLANEOUS APPEAL U/S.^173 OF THE MOTOR VEH8CLEACT.1988 HIGH COURT OP CHHATTI8GARH. BILASPUR DB: Hon'ble I. M. QUDDU8I & Hoa*ble G. MINHAJUDDIN, JJ M.A(Cl No. 775/2010 APPELLANTB: RB8PONDBNTS: Laxminarayaa Roy S/o Prexnnarayaa Roy Vs. Kumad Bai aad others MISC. APPBAL UNDBR SBCTION 173 OF THB MOTOR VBHICLES ACT.1988 Appearance: Mr. Gautam Khetrapal, counsel for ttie appeUants, Mr, Sudhir Veiiaa, coiiasel for respondents 1 to 4. Per I.M. OUDDUSI. J. ORAL ORDBR (05.08.2011) This appeal has been filed by fhe owner agamst the impugned award dated 27.03.2009 passed by ftie Additional Motor Accident Clauns Tnbiinal (FTC), Bemetara m Claim Case No,34/2009 m so far as it relates to excludmg fhe Uabilily of possession holders. Brief facts of fhe case as per the version of fhe claioiaats are fhat on 09.06.2008 at about 8.30 p.m. deceased Bedram Dhruv was returaiag to Salka by his cycle, On the way, a Dumper bearing Regn.No,10-ZB/984 which was beiag driven by non-appUcaat no.l, m a rash aad negUgent maaner, dashed Bedram, as a result of which, he sustaiaed grievous 'Yia-.^ <,^r";i" ^ 6. iajunes aad died on fhe way when he was being brought to Govt. Hospital, BUaspiir,, At the time of accident, the deceased was aged about 45 years aad was eaniiag Rs, 150-200/- per day by doiag labour works. The appeUaats bemg dependents/ legal representatives have filed claitn petition u/s 166 offhe Motor Vehicles Act for the award oftotal corapensation of Rs,68,00,000/- on vanous heads. Learaed Claims Tribunal has held fhat fhe vehicle ia question was iavolved ia fhe accident ia which deceased Bedram Dhruv died; respondent no, 1 was driviag fhe vehicle m a rash and negUgent inaaner aad the deceased has not fallen down froia fhe vehicle and fhe claimaxits are eutifled to receive a total compensation of Rs.3,25,000/- from fhe owner aad driver offhe vehicle. Learaed coimsel for tiie appeUaat submits fhat fhe appeUaat is fhe owner of fhe vehicle whereas respondents 6 & 7 are fhe possession holders of fhe vehicle as fhey have obtamed fhe vehicle on rent, He further submits fhat Supurdnama appUcation filed by respondents 6 & 7 shows fhat fhey are fhe possession holders offhe vehicle aad siace fhe accident took place when fhe vehicle was ia fheir possession, the learaed Tribunal ought not to have fastened the whole Uability on fhe owner aad driver offhe vehicle, We have heard learaed counsel for fhe parties at length and have also gone fhrough fhe records. "Ownei^ has been defiiied in Section 2(19) offhe 1939 Act to ineaa.: ^^aw-s^ f.^4 7~g&>,. vi f^m '"%^ ?! / ^ <<2« In fhis Act, unless fhere is aaythiag repugnaat ia fhe subject or context,— *** *** *** (19) <0wner> means, where fhe person in possession of a motor vehicle is a miaor, fhe guardiaa of such minor, aiid ia relation to a motor vehicle which is the subject of a hire purchase agreeinent, fhe person ia possessioa of the vehicle under fhat agreeiaent;?? "2. In this Act, unless fhe context ofherwdse requires,. *** *** *** (30) <0wner" nieans a person in whose name a miotor vehicle staads registered, aad where such person is a minor, the guardiaa of such minor, aad ia relation to a niotor vehicle which is fhe subject of a hire purchase agreement, or aa agreeinent of lease or au agreement of hypotiiecation, fhe person m possession of tiie vehicle under fhat agreenient;w 7. Though the possession holders of fhe vehicle were made parties ia fhe claitn petition, but there is no issue framed as to whefher fhe Uabitity was of the owner or of fhe possession holders aad without famiag fhe said issue, fhe leanaed Clamis Tribunal has straight-way has fastened the UabiUty on fhe owner. S. Learaed counsel for fhe appeUaat has placed reUaace on a decision of fhe Suprenie Court in. Nationed Insurance Co. LlxL Vs. Deepa. Devi and others (2008) 1 SCC 414, para 10 of the said Judgment is relevaat here and quoted below: "10. Parliament eifher under the 1939 Act or the 1988 Act did not take into consideration a situation of this nature. No doubt, respondents 3 & 4 contmued to be fhe registered owners of fhe vehicle despite fhe fact fhat fhe same was requisitioned by the Distdct Magistrate ia exercise of fhe power conferred upon him under fhe Representation of People Act. A vehicle is requisitioned by a statutory aufhority, pursuant to fhe provisions contaiaed ia a statute. The owner of fhe vehicle caojiot refase to abide by fhe order of requisition of vehicle by fhe Deputy Coniuiissioner. WhUe the vehicle reinains iinder requisition, fhe owner does not exercise aay control fhiereover. The driver inay stUl be fhe einployee of th.e owner of fhe vehicle but he has to drive it as per the direction of fhe oflGicer of fhe State, who is put ia charge thereof, Save aad except for legal ownership, for aU iatent aad purport, fhe registered owner of the vehicle loses entire contorol fhLereover. He has no say as to whether fhe vehicle should be driven at a giveu pomt of time or not, He caanot ask the driver not to drive a vehicle on a bad road, He or fhe driver could not possibly say fhat fhe vehicle would not be driven ia the night, The purpose of requisition is to use the vehicle, For titie period the vehicle reiaams under fhe control of fhe State aad/or its officers, fhe owner is only entitied to payinent of coiapensation fherefor in tenns of fhe Act but he cannot not (sic) exercise aay control fhereupon, In a situation of fhis nature, this Court niust proceed on the presumption that ParUament while enacting the 1988 Act did not envisage such a situation. Ifia a given situatiou, tihie statutory definitions contaiaed in fhe 1988 Act cannot be given effect to ia letter aad spidt, the same should be understood froin fhe coinxnon sense pomt ofview^ 9. In view of fhe above discussion, fhe niatter requires reconsideration at fhe end of fhe Tribunal, Hence, we atlow fhis appeal in part aiid remit fhe matter back to the Tribuual for decision afresh in fhe light of fhe obseryations inade hereiaabove, The Tribiinal shall frame aad consider the issue as to whefher fhe Uability was on fhe owner or possession holders aad whether fhere was aay agreement of lease between the owner aad the possession holders offhe vehicle, 10. Needless to mention fhat fhe parties shatl be aUowed to amend fhe pleadiags, adduce further evidence, file docuinents or get fhe docunients verified etc., aad fhereafter fhe Tribunal shall make tibie award afresh at fhe earUest, The records offtie Tribunal shaU be sent back wifhout farther delay, 11. In the result, ftie appeal is allowed m part. No order as to costs, Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge Rao