((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.26 OF 2003 IN FIRST APPEAL NO.1703 OF 2002 Ashok Leyland Finance Limited Appellants (Org.Opponent) versus Nitin Uttamrao Dani Respondent (Org.Applicant) Ms.Shakuntala Joshi for appellants. Mr.Ajay Varma i/by H.E.Palve for respondent. CORAM : SMT.RANJANA DESAI AND SMT.R.P.SONDURBALDOTA, J. DATE : 26th June 2008 JUDGEMENT : (PER : SMT.RANJANA DESAI, J.) 1. In this letters patent appeal original opponents - M/s.Ashok Leyland Finance Limited has challenged order dated 04th December 2002 passed by learned Single Judge of this Court (R.M.S.Khandeparkar, J.) in First Appeal No.1703 of 2002. By the impugned judgement and order the appeal preferred by the original opponents was dismissed. 2. Few facts need to be stated. The ((-2-)) respondent filed Motor Accident Claim Petition No.479 of 2001 in the Court of Extra Joint District Judge and Member of Motor Accident Claims Tribunal, Nashik ("Tribunal" for short) for compensation. It is his case that he is an ITI Teacher earning Rs.5,000/- per month. On 13th March 2000, at about 10.30 a.m. when he was standing at the S.T.stand of Peth diversion a Tempo Trax/offending vehicle owned by the appellant bearing No.MH-18-D-736 came in high speed rashly and negligently and knocked him down. Because of this accident he suffered permanent disability and pain. He also suffered loss of income for which he claimed total amount of compensation of Rs.1.00 lakh. 3. It must be noted at this stage that the respondent did not implead the driver of the offending vehicle as party respondent. He also did not implead the insurance company as party respondent. The appellant did not appear and hence the hearing proceeded ex-parte. The Tribunal perused the affidavit filed by the respondent (Exhibit-10) and observed that the affidavit clearly showed that respondent no.1 was knocked down by the offending vehicle and sustained serious injuries. The Tribunal ((-3-)) further observed that since the appellant remained absent, the respondent’s contentions on oath remained unchallenged. The Tribunal held that the respondents contentions were supported by the complaint lodged by Head Constable Deshmukh, Exhibit-13, which shows that the driver of the offending vehicle drove it rashly and negligently and dashed against the respondent causing him serious injuries. The Tribunal relied on spot panchanama (Exhibit-14) and medical certificate (Exhibit-15) which show that the respondent sustained fracture of tibia right side. The disability certificate (Exhibit-20) was also relied upon. The Tribunal also referred the report of RTO (Exhibit-18) and observed that the offending vehicle was owned by the appellant. Reference is also made to Exhibit-16 which is a certified copy of the licence of the driver of the offending vehicle. 4. The Tribunal then went through the medical bills submitted by the respondent and ordered that the appellant shall pay compensation of Rs.57,882/- including no fault liability to the respondent together with interest at the rate of 9% per annum from the date of petition till ((-4-)) realisation. 5. This order was challenged by the appellant in First Appeal No.1703 of 2002. It was contended before learned Single Judge that the appellant is not the owner of the offending vehicle but appellant is only the financer. Appellant had arranged finance for purchase of the offending vehicle. Learned Single Judge observed that the appellant was duly served with the notice of the claim petition, however, appellant chose to remain absent. Learned Single Judge further observed that the judgement of the Tribunal discloses that the respondent had produced documentary evidence including RTO Report which apparently and undisputedly disclosed the name of appellant as owner of the vehicle. While dealing with the contention raised by the appellant that it was a wrong entry, learned Single Judge observed that the appellant did not care to appear before the Tribunal and disputed the said entry. It did not take any steps to produce any evidence disproving the claim of the respondent. Learned Single Judge further observed that there is no material available before the Tribunal disclosing that the ((-5-)) appellant is not the owner of the offending vehicle. Learned Single Judge in the circumstances rejected the said appeal. It is this order which is challenged in this letters patent appeal. 6. We have heard at some length Ms.Joshi, learned counsel for appellant. She reiterated that the appellant is not the owner of the offending vehicle but it is only the financer. Heavy stress was led by learned counsel for appellant on the definition of the term "Owner" as contained in Motor Vehicles Act, 1988 ("the Act" for short). She submitted that as per this definition the term owner excludes a financer. Learned counsel relied on the judgement of the Supreme Court in Godavari Finance Company Vs. Degala Satyanarayanamma and others {(2008)5-SCC-107} in support of her submissions. Learned counsel has produced in this Court xerox copy of a document showing particulars of registration of the offending vehicle issued by the office of Regional Transport Officer, Dhule. She pointed out that the registered owner of the offending vehicle is Shyam Prabhakar Sonawane. Learned counsel submitted that the appellant had provided the ((-6-)) offending vehicle to said Shyam Prabhakar Sonawane on hire purchase basis in the year 1997 under hire purchase agreement dated 9th December 1997. 7. She contended that since Mr.Shyam Sonawane made default, on 21st June 1999, the appellant took possession of the offending vehicle as per clause-9 of the said hire purchase agreement. Thereafter the offending vehicle was sold on 7th September 1999 to Prabhakar G. Kapse by the appellant and amount was settled towards the dues due from the original hirer. According to learned counsel, the appellant thereafter informed by its letter dated 8th September 1999 to RTO, Dhule to cancel the endorsement in the R.C.Book about the hire purchase of vehicle as there was no more hire purchase agreement in existance. Learned counsel submitted that the offending vehicle was neither in the name of the appellant in the records of RTO nor was it plied by the appellant. On the day on which the accident took place i.e. on 13th March 2000 the registered owner of the said offending vehicle as per the record was Mr.Shyam Sonawane and during the transitional period when the ((-7-)) offending vehicle was transferred from Mr.Sonawane to Mr.Kapse, the appellant was never shown as owner of the offending vehicle. 8. She submitted that all these facts unfortunately could not be brought to the notice of the Tribunal because the appellant did not appear before the Tribunal. She submitted that the respondent ought to have impleaded the owner, the driver and the insurance company in the claim petition. Learned counsel further submitted that there was a bona fide communication gap between the advocate engaged by the appellant and the appellant and, hence, the appellant could not remain present. She submitted that in the interest of justice the impugned order may be set aside because it is legally untenable and the Tribunal may be directed to proceed with the matter afresh and in accordance with law. 9. We have also heard learned counsel for the respondent. He strenuously opposed the remand. He submitted that the accident took place in 2000 and the impugned order is dated 20th July 2002. He submitted that the fact that the respondent has received serious injuries cannot ((-8-)) be disputed. The appellant has not prosecuted the proceedings diligently and hence in the circumstances of the case this Court may not interfere with the impugned order. 10. Section 2(30) of the Act defines the term "owner". "2. Definitions.- (30) "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 hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement" Having read the definition, prima facie, we feel that it is possible to urge in a given case that "financer" is excluded from the definition of the term "owner". We also prima facie feel that reliance placed on the decision of the Supreme Court in Godavari Finance Company (supra) is apt. In this case the Supreme Court has observed as follows :- "12. Section 2 of the Act provides for interpretation of various terms enumerated therein. It starts with the ((-9-)) 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. 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." 11. The Supreme Court has also observed that in Motor Accident Claims petitions the insurance company is a necessary party. We may quote following observations of the Supreme Court in that behalf viz. : "15. An application for payment of compensation is filed before the Tribunal constituted under Section 165 of the Act for adjudicating upon the claim for compensation in respect of accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Use of the motor vehicle is a sine qua non for entertaining a claim for ((-10-)) 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." 12. It also appears to us that certain important facts pertaining to the ownership of the offending vehicle were not brought to the notice of the Tribunal because the appellant did not appear before it. In our opinion, therefore, it is necessary to remand the matter to the Tribunal so that it can decide it afresh in accordance with law after giving opportunity of hearing to all. It is true that the accident took place in the year 2000 and it does appear that the appellant has not attended to the matter diligently but at the same time we feel that legal issues involved in this matter need to be properly adjudicated upon. ((-11-)) Therefore, matter needs to be remanded. However, we are of the opinion that the appellant must be saddled with costs. Hence, following order. 13. ORDER :- (a) The impugned judgement and order dated 4th December 2002 is set aside and the matter is remanded to the Tribunal on the condition that the appellant pays costs quantified at Rs.25,000/- (Rs.Twenty five thousand only) to the respondent; (b) Costs be paid within one month from the date of receipt of copy of this order; (c) Payment of costs is condition precedent for this order to become effective; (d) Counsel for the respondent shall forward full name and address of the respondent to the counsel for the appellant within a period of two weeks. Thereafter the appellant shall issue demand draft of Rs.25,000/- in the name of respondent within a period of two weeks thereafter. ((-12-)) (e) The appellant and the respondent shall appear before the Tribunal on 24th August 2008 so that the Tribunal can hear the matter or give appropriate date of hearing; (f) Respondent shall carry out necessary amendment to the petition to add necessary parties, if he so desires; (g) On being satisfied that the appellant has paid costs to the respondent, the Tribunal shall give an opportunity of hearing to all parties and pass order in accordance with law independently and without being influenced by any observations made by us in this order Nothing said by us in this order should be interpreted as our final expression on any issues involved in this case. The Tribunal shall dispose of the matter expeditiously. (h) We are informed that the entire decretal amount is deposited in the Tribunal and it is invested. The amount shall lie invested till the Tribunal finally disposes of the petition. The said amount shall abide by final order which will be passed in the claim petition. ((-13-)) (i) Letters patent appeal disposed of accordingly. JUDGE JUDGE