1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT (Sikar Sahakari Bhumi Vikas Bank Ltd.Sikar Vs. Must. Bhagi and ors.) S.B.CIVIL MISC. APPEAL NO.645/2000 S.B. Civil Misc. appeal under Section 173 of Motor Vehicles Act against the award dated 21.2.2000 passed by M.A.C.T. Sikar, in claim Case No.78/1992. DATE OF JUDGMENT ::: 27th OCTOBER, 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. RK Agarwal, for the appellant. Mr. Sultan Singh on behalf of Mr. Biri Singh for the claimants-respondents. *** BY THE COURT: Challenge in this appeal is to the judgment and award dated 21st February, 2000 passed by Motor Accident Claims Tribunal, Sikar whereby an amount of Rs.2,56,000/- has been decreed as compensation in favour of the claimants-respondent No.1 and 2 and against the appellant and the respondent Nos.3 & 4. 2. Heard the learned counsel for the parties and perused the relevant material on record. 3. Backgrounds facts of the case in nut-shell are thus : That on 30thth December 1991 at about 1.00 PM, the deceased Bhagchand was going from his 2 village Charan Singh Gate to Krishi Mandi at Sikar on foot. No sooner did he reach opposite Collectorate premises, one Tractor No.6829 attached with Trolley driven by the driver rashly and negligently at a fast speed, came on the wrong side and caused an accident to Bhagchand who sustained injuries on his head and died on the spot. 4. Learned counsel for the appellant has centred his argument only on one point that the appellant Sikar Sahakari Bhumi Vikas Bank Ltd. was not the owner of Tractor RJV-6829, but it had financed the Tractor which was hypotheticated to the appellant- Bank. Respondent No.4 Jay Singh was the owner of the vehicle. The learned Tribunal acted contrary to law and facts in awarding compensation against the appellant. He further contended that the claims Tribunal had no jurisdiction to pass any award except against the insurer, owner or driver of the vehicle or against all or any of them but the liability could not be fastened on the appellant. As per the definition of the term “owner” contained in Section 2(3) of Motor Vehicles Act, the appellant cannot be termed to be 'owner' and thus, the learned Tribunal has erroneously fastened the liability to pay the amount of compensation on the appellant which deserves to be set aside. He has cited one judgment (2008) 5, SCC 107 in support thereof. 5. Learned counsel for the respondents- 3 claimants did not prefer to argue on this issue. 6. Having reflected over the submissions made by the learned counsel for the appellant and carefully scanned the relevant material on record, it is noticed that the only crucial question springing for consideration in the instant appeal is that as to whether a financer would be an owner of Motor Vehicle within the meaning of Section 2(30) of the Motor Vehicles Act 1988 (for short “Act”)? 7. In the case of Godavari Finance Co. VS. Degala Satyanarayanamma & ors. reported in (2008) 5 SCC 107, the Hon'ble Apex Court has held that “12. Section 2 of the Act provides for interpretation of various terms enumerated therein. It starts with the phrase "Unless the context otherwise requires". The definition of "owner" is a comprehensive one. The interpretation clause itself states that the vehicle which is the subject matter of a Hire Purchase Agreement, the person in possession of vehicle under that agreement shall be the owner. Thus, the name of financer in the Registration Certificate would not be decisive for determination as to who was the owner of the vehicle. We are not unmindful of the fact that ordinarily the person in whose name the Registration Certificate stands should be presumed to be the owner but such a presumption can be drawn only in the absence of any other material brought on record or unless the context otherwise requires. 4 13. In case of a motor vehicle which is subjected to a hire purchase agreement, the financer cannot ordinarily be treated to be the owner. The person who is in possession of the vehicle, and not the financer being the owner would be liable to pay damages for the motor accident. Use of the motor vehicle is a sine qua non for entertaining a claim for compensation. Ordinarily if driver of the vehicle would use the same, he remains in possession or control thereof. Owner of the vehicle, although may not have anything to do with the use of vehicle at the time of the accident, actually he may be held to be constructively liable as the employer of the driver. What is, therefore, essential for passing an award is to find out the liabilities of the persons who are involved in the use of the vehicle or the persons who are vicariously liable. The insurance company becomes a necessary party to such claims as in the event the owner of the vehicle is found to be liable,it would have to reimburse the owner inasmuch as a vehicle is compulsorily insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role.” 8. The word “owner” has been defined under Section 2(3) of the Motor Vehicles Act 1988 and the same is reproduced as below: “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 5 hire-purchase, agreement or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. 9. The definition of the term 'owner' in relation to the Motor vehicle which is the subject of Hypothecation agreement, means the person in possession of the vehicle under the agreement of Hypothecation. There is no dispute that the actual possession and control of the vehicle was with respondent No.4 Jay Singh under whose direction and command the driver Shishpal was driving the vehicle. In view of the definition of the term 'owner' and the aforesaid pronouncement of the Hon'ble Apex Court, it becomes tangible that in case of Motor Vehicle which is subjected to Hypothecation, the financer cannot ordinarily be treated to be the owner. The person in possession of the vehicle and not the financer being the owner would be liable to pay damages for the Motor accident. The learned Tribunal sans reading the definition of owner and the relevant provisions of law, arbitrarily held the appellant-financer liable to pay the amount of compensation. Learned tribunal has also erroneously held that the appellant was liable severally or jointly to pay the amount of compensation to the claimants-respondent Nos.1 and 7. The impugned award is found to be unjust and contrary to the provisions of law which deserves to be set aside in respect of the appellant and the appellant cannot be held to be liable to pay any amount of 6 compensation to the claimants. 10. For the reasons stated above, the appeal is allowed. The appellant Sikar Sahakari Bhumi Vikas Bank Ltd., Sikar, cannot be held to be liable to make the payment of any compensation to the respondent No.1 & 2. Hence, the appellant is absolved of its liability. The impugned award dated 21st February, 2000 passed by Motor Accident Claims Tribunal, Sikar, is set aside in respect of the appellant and stands modified as indicated hereinabove. 11. There shall be no order as to costs. (MAHESH BHAGWATI),J. pcg