1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.4180 OF 2008 Date of decision:12/4/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/4180-08fa 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.4180 OF 2008 Ujwal Automotives Pvt.Ltd., Through its Director, Mr.Aashish Kishor Patil, Age 37 years, Occ: Business, r/o Awdhan, Taluka & District Dhule. ...APPELLANT (Ori.claimant) VERSUS 1. Mr.Anil Waman Shejwal, Age: Adult, Occ. Truck Driver, Truck No.MH-18/M-4188, r/o Bhimnagar, Sakri Road, At & Post & Dist.Dhule. 2. Mr.Shivaji Patimbar Rajput, Age: Adult, Occ: Truck Owner, Truck No.MH-18/M-4188, R/o. Hendrun, Taluka & Dist.Dhule. 3. Branch Manager, National Insurance Co.Ltd. Nashikkar Shopping Complex, Ranapratap Chowk, At & Post & Dist.Dhule. ...RESPONDENTS (No.1 to 3 Ori.Opps. No.1 to 3) ... Mr. A.B.Gatne, Adv., for the appellant. Mr. M.K.Goyanka, Adv., for respondent no.2. Mr. D.V.Soman, Adv., for respondent no.3. ... 3 CORAM: K.U. CHANDIWAL, J. DATE : 12.4.2010 *** JUDGMENT: 1. Heard learned Counsel for the parties extensively. 2. Admit. By consent of parties, the matter is finally decided at admission stage. Record and proceedings available, verified by both the Counsel. 3. Dismissal of Claim Petition for damage of vehicle by learned Chairman, Motor Accident Claims Tribunal, Dhule, dated 5.8.2008, is questioned by the petitioner. 4. The factual matrix, not in controversy, is, a new TATA vehicle Model No.709/38, bearing Registration No.MH-12/866(10) Temp. was purchased in cash on 26.6.2003 by the petitioner, the Ujjwal Automotives, its delivery was taken on 28.6.2003. During the course of travel of the vehicle, it was dashed by an offending truck bearing Registration No.MH-18/4188. It is a matter of record, in the said accident, the driver of TATA vehicle expired. The vehicle being completely damaged, it was surveyed by the 4 authorized surveyor and said surveyor has assessed the total damage to the vehicle at Rs. 3,62,904/-. Its claim was lodged before the learned Judge, Motor Accident Claims Tribunal, Dhule. 5. Following points arise for my consideration: (1) Whether the learned Judge/Chairman, Motor Accident Claims Tribunal, Dhule, was justified in dismissing the claim petition ? (2) What Order ? My findings are: (1) The learned Judge erred in dismissing the claim. (2) Appeal allowed as per the order. 5. The Counsel for the petitioner would argue, the learned Chairman erred in differentiating consignee and consignor, oblivious to the documents on record, specifying that the vehicle was purchased by the claimants under valid voucher with temporary registration number, to which there is an authorization in 5 favour of the manufacturer. He contended, the claimants job is not only to deliver the goods, he is involved in remitting the price, collecting the vehicle and then selling it. 7. The learned Judge, dismissed the claim on the ground, in terms of Section 166 (1)(b) of the Motor Vehicles Act, the petition should be filed only by the owner of the property and the claimant, since being not the owner, he is not entitled to claim. 8. Mr. Soman, learned Counsel for the Insurance Company, submits that the vehicle is not owned by the claimant, its registration is in the name of TELCO COMPANY. The definition of 'owner' under Section 2(30), necessarily requires registration of the vehicle which, in this case, is not a dealer, is in terms of Section 2(8) and, consequently, the claimant would not be the owner of the vehicle. The policy of the said vehicle is not produced, which was mandatory, in terms of Section 146 of the Motor Vehicles Act and without any policy, the vehicle cannot ply on the road. His another contention is, since the accident was between the claimants vehicle and the offending truck, there should be assessment of the 50 per cent contribution. 6 9. The record demonstrates, the claimants are shown as owner of the vehicle at Form C.R.TEM. (Temp.Certificate of Registration) with registration No.MH-12-866. It has been certified that the vehicle is registered under the provisions of Section 25 of the Motor Vehicles Act with a temporary registration which is valid only until 27th July, 2003. The terms of the payment indicate, it was made cash on 26.6.2003. The net price of the vehicle indicated in the excise Challan for removal of the excisable goods is Rs.4,23,209.07/-, the ultimate price after the excise duty and sales tax was Rs.5,50,425.71. 10. Indeed, by virtue of the nature of transaction by the claimant with the manufacturer, he will definitely be a consignee and consignor. The vehicle was duly registered as indicated here-in-above. It was with a policy, in terms of Section 146 of the Act, however, said policy is not produced. Mr.Gatne, learned Counsel, has made a statement, the Insurance with the claimants have independently not resorted to any claim with the Insurance Company, the policy covers the risk of third party and not the own damage claim. It was a transit insurance. He reiterated, it is not a case of double claim. 11. In the light of the temporary 7 registration number and the receipt, the claimants are certainly owner of the vehicle and, consequently, eligible to lodge a claim in terms of Section 168 of the Motor Vehicles Act. The surveyor was examined before the learned Judge. He has proved the survey report. Where-ever the claims could not be adjudicated upon, the surveyor has not allowed such claims towards the damage and ultimately reached to the stage of damage assessment at Rs.3,62,904/-. 12. The prologue by Mr. Soman, without admitting the genuineness of the claim, to fasten the responsibility equally, also needs attention. The tempo driver expired in the accident. The photographs on record illustrate that the offending vehicle came from opposite direction, dashed to the right side of the tempo, thereby entire cabin from the right side is smashed. Majority of the body parts were scattered/dismantled. In this situation, the rational assessment would be the contribution to the negligence of the tempo driver and of the truck driver should be 30 per cent and 70 per cent. The damage of Rs.3,62,904/- proved by Surveyor, needs to be proportionately apportioned in the ratio of negligence. 13. The legal position, which has been side- tracked by the learned Judge, warrants 8 consideration. The documents on record proved by the claimants, in unmistakable terms, describe the claimant to be the owner of the vehicle. It was purchased in cash, temporarily registered for 30 days with insurance. The claimants have also established the damage suffered by the evidence of the surveyor. It is a hundred per cent damage to the vehicle. 14. In the result, the damage or the price of the damaged vehicle is assessed at Rs. 2,50,000/- (Rs.two lacs, fifty thousand) as against Rs.5,50,000/- (Rs.five lacs, fifty thousand) claimed. :ORDER: (i) Appeal is allowed with costs. (ii) The order of dismissing the Claim Petition is set aside. (iii) The liability of respondents truck owner, driver and insurance company is fixed for an amount of Rs.2,50,000/- (Rs. two lacs, fifty thousand), with interest @ 7% p.a. from the date of petition till realization/payment. (K.U.CHANDIWAL) JUDGE ... agp/4180-08fa