1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.74 OF 2006 (Converted from Writ Petition No.3389 of 2006) Hamsafar Travels,through its Proprietor-Siraj Kadar Mohammad, age 25 years, occup.business, resident of Patel Chambers, Near Chunilal Asaram Petrol Pump, Adalat Road, Aurangabad, Appellant/ori. District Aurangabad. Resp No.2. versus Bharat Shamrao Gajendragadkar, age adult, occup. business, resident of Main Road, Respondent/ori. House No.21/34, Osmanabad. claimant. --------- Shri S.R.Deshpande, Advocate, for the appellant Shri K.K.Kulkarni, Advocate, for the Respondent. Coram: P.R. Borkar J. Date: August 17,21009 Oral Judgment 01. This Appeal from Order is directed against refusal by the learned Member, Motor Accident Claims Tribunal, Dhule, by his judgment and order dated 9.11.2005 passed in Miscellaneous 2 Claim Application No. 6 of 2005 to set aside the ex-parte award dated 18.7.2007 passed against the present appellant in Motor Accident Claim Petition No.546 of 1996 that was filed by the Respondent. 02. Briefly stated, present respondent Bharat Shamrao Gajendragadkar had filed Motor Accident Claim Petition No.546 of 1996 against one Ramdhar Jagalkishor Malvi and present appellant claiming compensation of Rs.50,000/= Said Ramdhar Malvi was said to be a driver working with present appellant. It is alleged by Respondent that Humsafar Travels having its head office at Osmanpura, Aurangabad, runs bus service between Aurangabad and Indore and on 14.4.1994, Respondent was traveling in a luxury bus bearing No.MP-15- D-0903 owned by Hamsafar Travels. His ticket Number was 2123 and seat number 3 in the said bus. At about 8 or 9 p.m. he boarded the said luxury bus. The bus was being driven by said Ramdhar Malvi in rash and negligent manner as a result of which at about 12.30 to 1.00 a.m. on 15.4.1994 the bus dashed a truck and Respondent Bharat sustained injuries. He was shifted to Civil Hospital, Dhule and on examination, it was noticed that he had suffered fracture of tibia right middle to the extent of 1/3rd. 3 03. In the circumstances, he filed claim petition No.546 of 1996. Pending petition, name of Ramdhar, driver, was deleted. The claim petition was decided ex-parte against Respondent No.2 Hamsafar Travels as in spite of service of notice vide Exhibit 11, it remained absent. Learned Member by his judgment and order dated 18.7.2002 decided the said claim petition and awarded compensation of Rs.20,000/= to the Respondent together with interest at 9 per cent per annum from the date of claim petition till actual payment. 04. After decision of the said claim petition, execution proceedings were filed and thereafter present appellant Siraj Kadar Mohammed filed Miscellaneous Claim Application No. 6 of 2005 praying for setting aside the exparte award dated 18.7.2002. He claimed that he was not served and he was only a traveling agent and not owner of the vehicle and as such, he was not liable. The vehicle in question was neither owned by him nor hired by him and, therefore, he owes no liability. There was no proper service on him. However, learned Member of the Tribunal held that there was proper service of notice vide Exhibit 11. The applicant has admitted that he is owner of Hamsafar Travels, but at the same time, according to him, it is a traveling agency and he 4 is working for and on behalf of owner of the vehicle. This admission incorporated in paragraph 6 of the order passed below said Miscellaneous Claim Petition No.6 of 2005 on 9.11.2005 is material. Learned judge has come to a conclusion that there was proper service and the report to that effect filed by bailiff was supported by his affidavit. It may be noted that in this case no where, the present appellant comes out with a case that any particular person was owner of the luxury bus in question. He could have easily produced record from the office of R.T.O. which is a public record. Till this moment, present appellant has not disclosed the name of the owner of the luxury bus of which he had sold ticket to the Respondent. The respondent has come out with a clear case that the appellant is the owner of the vehicle in question and as such liable. In support of this, the respondent has produced receipt issued to him by the traveling agency on 14.4.1994. He also produced a xerox copies of police papers which indicated that the bus in question had dashed a truck. There was no reason for the respondent to falsely say that he was traveling in the said luxury bus. 05. It is argued by Advocate Shri S.R.Deshpande for the appellant that the appellant was merely an agent who had sold the ticket for and on behalf of the owner of the bus and as such 5 appellant is not liable. Here, reference to Section 231 of the Contract Act would be relevant. Section 231 reads: "231. Right of parties to a contract made by agent not disclosed. If an agent makes a contract with a person who neither knows, nor has reason to suspect, that he is an agent, his principal may require the performance of the contract; but the other contract party has, as against the principal, the same rights as he would have had as against the agent if the agent had been principal." 06. Advocate Shri S.R.Deshpande submitted before me that Respondent No.2 was absent and the Tribunal ought to have added insurance company as a party. However, there was nothing before the Tribunal to show that the bus was insured. It is also submitted that as per Rule 254 (6) of the Maharashtra Vehicles Rules 1989, police were duty bound to provide information. 07. It may be noted that in this case proceedings have been decided ex-parte and, therefore, whatever evidence was available on record was sufficient as the same had been unchallenged. 6 08. At this stage we are concerned with application seeking to set aside exparte award and restoration of the claim petition. In my opinion, this Appeal from Order has no merits, particularly when the appellant has not prima facie proved that not he, but some other person was owner of the vehicle in question. The fact remains that Respondent was traveling in bus which he believed to be owned by Hamsafar Travels. The applicant/appellant has admitted ownership of traveling agency Hamsafar Travels. Summons of the original claim petition was duly served on him as observed by the learned Member of the Tribunal. In this view of the matter, this Appeal from Order deserves to be and is accordingly, dismissed. pnd/ao74.06 (P.R.BORKAR, J.)