1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.177 OF 1996 ALONGWITH FIRST APPEAL NO.118 OF 1996 TELCO Ltd. .. Appellant (In both the appeals) versus Chandrika Dilip Desai & Ors. .. Respondents (In both the appeals) Mr.S.M.Gorwadkar h/f Mr.C.R.Dalvi for the appellant in both the appeals. None for the respondents. CORAM : A.S.OKA, J. DATE : 20th January 2010. JUDGMENT: . These two appeals can be disposed of by a common judgment and order as the issue involved in appeals is the same. For the sake of convenience a reference is made to the facts of the case in First Appeal No.177 of 1996. The appellant is the 1st opponent in a claim petition filed under section 110A of the Motor Vehicles Act, 1939. The 1st and 2nd respondents are the original claimants and the 3rd and 4th respondents are the original 2nd and 3rd opponents in the said claim petition. The claimants in claim petition filed the application for claiming compensation on account of demise of one Dilip who on 26th December 1981 was travelling by a motor car from Bombay towards Pune. When the car came near Talegaon, a vehicle being a motor chasis No.42053 allegedly owned by the appellant (1st opponent) as well as by the 2nd opponent (3rd respondent) herein came from the opposite direction. The said vehicle was being 2 driven in a rash and negligent manner. The vehicle brushed the entire right side of the car driven by the deceased. As a result of injuries sustained in the accident, the said Dilip died on the spot. 2. The claim petition was opposed by the appellant on the ground that on 25th December 1981 the chasis was already sold to the opponent No.2 (3rd respondent herein) and delivery thereof was also given to the 2nd opponent. It is stated that the 2nd opponent had arranged for transport of the vehicle to Bombay through its transporter and in fact the driver of the chasis was engaged by the transporter. The case made out by the 2nd opponent in the written statement was that the driver involved in the accident was not employed by it and therefore, the 2nd opponent was not vicariously liable. It is contended that the 2nd opponent had delivered the said vehicle to an independent contractor who had employed the driver. The opponent No.3-insurer did not dispute the existence of insurance but contended that the liability is of the contractors appointed by the 2nd opponent. The Tribunal while passing the impugned award considered the question of ownership. The Tribunal recorded a finding that both the opponent Nos.1 and 2 were the owners of the vehicles involved in the accident. 3. The learned counsel appearing for the appellant submitted that the chasis (vehicle) was sold by the appellant to the opponent No.2 before the accident and possession was also delivered to the opponent No.2. He pointed out that documents on record show that the sale was complete by delivery and in fact the appellant had received the price of the vehicle. He pointed out the documents showing that even in the record of the regional transport office, the opponent No.2 was shown as the registered owner. He submitted that even the policy of insurance was taken by the opponent No.2. He, therefore, submitted that the finding of the Tribunal on the issue of 3 ownership is perverse. 4. The submissions of the learned counsel appearing for the appellant were heard yesterday. As none appeared for the respondents, the appeals were adjourned till today. When the appeals are called out today, none appears for the respondents. 5. I have carefully considered the submissions. In the claim petition, the case made out by the claimants was that the appellant and/or the 3rd respondents were the owners of the vehicle. The appellant examined one Suhas Madhusudan Kadlaskar working in Sales Account Department of the appellant. He stated that the 3rd respondent (2nd opponent) was a dealer appointed by the appellant and there was a dealership agreement entered into between the appellant and 2nd opponent (3rd respondent). The dealership agreement was produced by him in the evidence. Apart from the said witness, appellant examined one Valmik Govind Sanap, an officer working with it. He was examined to prove that on 15th December 1981 ten vehicles (chasis) were released (sold) after receiving the release orders. He stated that five vehicles were released on 15th December 1981 and remaining were released on 21st December 1981. As far as the vehicle involved in the accident is concerned, he stated that the original release order has been destroyed. He pointed out that the release order is retained only for a period of three years. However, a xerox copy supplied to the Administrative Department of the appellant was produced on record and was proved. The said xerox copy was admitted in evidence. He also produced a xerox copy of the delivery note by stating that the original has been destroyed. He stated that the entire price of the vehicle was received from the 3rd respondent by cheque. 6. As far as documentary evidence is concerned, the release order dated 15th December 1981 (Exhibit 72) relates to release of ten chasis (vehicles). The same 4 notes that payment of Rs.17,62,560/- has been received in Bombay. The documents at Exhibit 73 evidences delivery of the vehicle to the 3rd respondent (2nd opponent). The date of the said documents is 25th December 1981. Exhibit 74 is letter dated 14th December 1981 sent by the 3rd respondent to the appellant enclosing therewith a cheque in the sum of Rs.8,81,280 being the price of the five vehicles including the vehicle involved in the accident. Exhibit 76 is the gate-pass showing that the vehicle in question was removed from the premises of the appellant. 7. The Certificate dated 6th August 1993 issued by the Regional Transport Office, Bombay discloses that the registered owner of the vehicle is the 3rd respondent. The said certificate shows that the vehicle was insured by the 3rd respondent with the 4th respondent at the relevant time. 8. Thus, what has been established is that price of the vehicle in question was paid by the 3rd respondent to the appellant by cheque. Possession of the vehicle was also handed over by the appellant to the 3rd respondent as evidenced by document at Exhibit 73. Thus the sale of the vehicle in favour of the 3rd respondent was completed prior to the date of the accident. The case of the 3rd respondent was that the 3rd respondent was in possession of the vehicle and had hired a contractor for transporting the vehicle to Bombay. Admittedly, the accident occurred on 26th December 1981. On that day the 3rd respondent was the legal owner of the vehicle. Even the policy of insurance is in the name of the 3rd respondent. Mr.Vijay Bangera, an officer of the 4th respondent-insurer deposed before the Tribunal that the 3rd respondent was the owner of the vehicle in question. 9. Thus, the only conclusion is that the appellant was not the owner of the offending vehicle and to that extent the impugned Awards will have to be modified by 5 directing that the claim petitions stand dismissed as against the appellant. 10. Hence, I pass the following order: : O R D E R : (a) The impugned Awards are modified by directing that the claim petitions filed by the claimants stand dismissed as against the appellant. The rest of the Awards are not disturbed. (b) There will be no orders as to costs. (A.S.OKA,J)