IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE FIFTEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE B.N.RAO NALLA MA.CMA.No. 2 2 5 3 OF 2007. Between: The General Manager, Medak District Co-operative Centra1 Bank Ltd., Sanga Reddy, Medak district & Anr. … Appellants V/s. Gottimukkala Venkateshwara Sharma & 3-Ors. … Respondents Counsel for the Appellants : Sri K. Ravinder Reddy Counsel for the Respondents: Sri The Court made the following : (Judgment follows 2nd page) THE HONOURABLE SRI JUSTICE B.N.RAO NALLA MA.CMA.No. 2 2 5 3 OF 2007. J U D G M E N T : Aggrieved of the award and decree dated 19-12-2004 passed in OP.No. 234 of 2004 by the Chairman, Motor Accidents Claims Tribunal-cum- Principal District Judge, Medak at Sanga reddy, the General Manager and Manager of Medak District Co- operative Central Bank Limited, Sanga Reddy, Medak district, filed the present Civil Miscellaneous Appeal. 2. The facts leading to the filing of this Civil Miscellaneous Appeal can be summarized as follows: That on 27-8-2001 the deceased, Gottimukkula Kalyan Chakravarthy was riding Suzuki Samurai motor cycle along with pillion rider on way from Kamareddy to Hyderabad and by the time when they reached Manoharabad limits at about 07:45 p.m. on National Highway No.7, it hit the parked tractor-cum-trailor resulting in the death of the motor cycle rider on the spot and the pillion rider succumbed to the injuries while undergoing treatment at Gandhi Hospital and the motor cycle was completely damaged. The Police Toopran registered a case in Cr.No.170/2001 for the offence under section 304-A IPC against the first respondent and filed charge sheet in CC.No.159 of 2001 on the file of the Court of Special Mobile Court, Medak. It is stated that the accident occurred due to the rash and negligent act of the first respondent (driver of tractor) who was under the employment of second respondent (owner of the tractor) and the tractor/trailer were hypothecated with third respondent, who was under the control of fourth respondent. Respondent Nos.1 to 4 are made jointly and severally liable to pay the compensation. The deceased was doing purohit duties and earning Rs.15,000/- per month and he was contributing to his parents. The claimants who are his parents filed the claim petition claiming a compensation of Rs.3,00,000/- for the death of their son, Gottimukkula Kalyan Chakravarthy in the said accident. 3. Before the Claims Tribunal, Respondents 1 and 2 were set ex parte. Respondents 3 and 4 filed their counter denying the averments made in the petition and put to petitioners to strict proof of the same and inter alia contended that they are not concerned with the crime vehicle. It is averred that originally the vehicle was hypothecated to third respondent during 1989, after disbursement of the loan amount by 15-09-1995, its ownership was transferred in the name of registered owner and the ownership was subsequently transferred in the name of its purchaser, who is the second respondent. The trailor AAB-5564 is not concerned with the tractor. It is further averred that the person who drove the vehicle at the time of accident was not having valid and subsisting driving license and the vehicle was not having fitness certificate showing its roadworthiness to ply with proper route permit. It is also averred that as the risk is not covered on the loan, only the registered owner is liable and the respondent bank has no liability. Even though there was a complication in the loan, the loan amount was cleared upto 15-09-1995 and the account was closed. So the hypothecation of the vehicle is completely on the risk of actual registered owner. The claim as against the respondent Nos.3 and 4 may be dismissed with costs. 4. On the basis of the rival contentions, the Claims Tribunal framed the following issues for trial : 1) Whether the accident occurred due to rash and negligent driving of the driver of crime vehicle ? 2) Whether the petitioners are entitled for compensation, if so, at what quantum and from whom ? 3) To what relief ? 5. On behalf of the claimants, PWs. 1 and 2 were examined andExs.A1 to A11 were marked. Respondents 3 and 4 examined RWs. 1 and 2 and marked Ex.B1 original long term loan ledger book. 6. On appreciation of both oral and documentary evidence adduced by both sides, the Claims Tribunal awarded total compensation of Rs.2,80,000/- as against the claim of Rs.3,00,000/- and fixed the liability on respondents 3 and 4 jointly and severally liable to pay the same to the claimants. Aggrieved thereby, the present Civil Miscellaneous Appeal is filed. 7. The driver and owner remained exparte. Respondent Nos.3 and 4 represented by its Manager and General Manager was the contesting party. It is the case of Respondent Nos. 3 and 4, the driver and owner in the appeal is that the accident vehicle i.e., tractor and trailor was not under hypothecation. That hypothecation agreement came to an end prior to the date of accident. It is contended on behalf of the appellants that even if, for the sake of argument, hypothecation of the vehicle was not discharged at the time of accident, the hypothecation bank cannot be said tobe either owner or possessor of the vehicle in question and that they are not liable to pay any compensation. 8. The case of respondent No.2 owner in the O.P. is to the effect that the tractor and trailor was hypothecated with Respondent Nos.3 and 4 and that the accident occurred during the said hypothecation was in force or subsisting. Whereas the evidence of Respondent Nos.3 and 4 is to the effect that the father of Respondent No.2, who is the owner of tractor and trailor cleared the dues of hypothecation prior to the date of accident. On the death of the father of Respondent No.2, ownership of the vehicle was transferred in his name and the same fact is also considered and accepted by the Claims Tribunal. However, the appellants contended that the Claims Tribunal erred in considering that Respondent Nos.3 and 4 failed to establish the fact that the vehicle was released from hypothecation and held that the appellants herein who are respondents 3 and 4 in OP along with respondent Nos.1 and 2 are jointly and severally liable o pay the compensation to the claimants. 9. In support of his contention, the learned counsel relied on a decision in BANK OF BARODA, AHMEDABAD V/s. RABARI BACHUBHAI HIRABHAI AND ORS [1]., wherein para 4 is relevant. 10. In this case, no doubt the vehicle was hypothecated to bank but ownership and possession thereof remained with the owner respondent No.2 himself. Therefore, hypothecating bank cannot step into the shoe of the owner. That being so, no liability can be fastened on it. The relationship between the vehicle owner and the hypothecating bank is that of debtor and creditor. It is only in the case of default in payment of the amount, hypothecating bank can sell the vehicle. In this case, the question of seizing and selling the vehicle does not arise. The vehicle was released from hypothecation by the date of accident. 11. In BANK OF BARODA, AHMEDABAD V/s. RABARI BACHUBHAI HIRABHAI AND ORS., referred supra-1, it was held to the effect that the bank advancing loan against the security of the vehicle under deed of hypothecation delivers the vehicle to the owner. In other words, the ownership and possession of the vehicle continues to remain with the owner. That the jural relationship between them is that of debtor and creditor. The only right that arises in favour of hypothecating bank is to have the vehicle sold for realizing the dues. That the hypothecating bank never stepped into the shoe of the owner and thereby becomes liable to pay compensation. 12. Lastly it is contended on behalf of the appellants that if any liability to pay compensation to the claimants is to be fastened, it is to be fastened on the respondent Nos.1 and 2, the driver and owner of the accident vehicle. 13. It is canvassed on behalf of respondent No.4 owner that the appellant is praying for the relief which is outside the scope of their pleadings i.e., the grounds of appeal. The grounds of appeal are that the appellant bank is not liable for any risk. The owner of the vehicle has to insure it and renew the same every year. However, the respondent No.2 owner has not done so. The deceased was rash and negligent in riding his two wheeler. That the Claims Tribunal had fixed earnings of the deceased whimsically, though he was dependant on his parents. That respondent Nos. 3 and 4 remained exparte in the Claims Tribunal in collusion with the claimants. That the hypothecation of the vehicle was terminated already prior to the accident. That except harping upon the ground No.6 none of the other grounds are touched upon. 14. That once the vehicle is purchased under hypothecation scheme, it is the duty of the hypothecating bank to get the insurance coverage by paying requisite fee and premium. That the appellants have not insured the said vehicle in question. 15. It is vehemently contended that the vehicle was released from hypothecation on the dues being cleared by the father of the respondent No.2 owner. However, the appellant side did not file any such document or certificate showing clearance of the loan. That RW-1 admitted in his evidence that he did not know as to whether the discharge of hypothecation form was issued in favour of the purchaser on clearance of loan and at the time of purchase of tractor and trailor and it is hypothecated with them, the vehicle was covered by Insurance Policy and that during the period of hypothecation the bank did not pay the Insurance premium. It is the settled law that no vehicle can ply on the road without there being insurance policy covering the risk. As per the evidence of RW-1, perhaps though there was Insurance Policy in respect of the tractor and trailor during the period of hypothecation, the bank did not pay the insurance premium. It appears that since the bank failed to pay the Insurance premium from time to time, the Insurance Policy has expired and the same was not renewed. 16. It is also contended on behalf of Respondent No.4 owner of offending vehicle i.e., tractor and trailor that the appellant did not file any document to show that hypothecation agreement came to an end, as the amount due thereunder was paid and that the vehicle was discharged from hypothecation. Therefore, the Claims Tribunal has rightly fastened the liability on the appellant-bank. Though the plea of the appellants is that the hypothecation of the vehicle was discharged prior to the accident and the evidence of RWs.1 and 2 is to the same effect. However, it is to be seen from the admission of RW-2 in his cross-examination that after the death of the original owner Sri Pedda Ranga Reddy, the vehicle was transferred in the name of his son, second respondent, but the appellant-bank did not issue any certificate or letter either to the owner of the offending tractor trailor or the Road Transport Authority causing intimation of such release of the vehicle from hypothecation on payment of loan amount. It appears that the Claims Tribunal taking into consideration the above said facts has come to a conclusion that the appellant-bank had failed to prove the said discharge of vehicle from hypothecation and held that Respondent Nos. 1 to 4 were jointly and severally liable to pay the compensation. 17. It is canvassed on behalf of Respondent Nos.1 and 2 herein, who are claimants that rash and negligent driving on the part of the driver of the tractor and trailor has already been proved. That the quantum of compensation is not disputed but the only question remains to be answered is on whom the liability to pay awarded compensation has to be fastened ? It is canvassed on behalf of Respondents 1 and 2, claimants and Respondent No.4 owner that the hypothecation agreement was in force by the date of the accident and that the Insurance Policy was not in force, since the appellant hypothecating bank failed to pay the premium from time to time. Therefore, it is contended that the liability to pay compensation amount as awarded by the Claims Tribunal has got to be fastened on the appellant- bank. 18. The contention of the appellant-bank is that Respondent No.4 owner remained exparte before the Claims Tribunal and as such, he has no locus standi to contest the matter at this stage. On the other hand, it is the contention of Respondent No.4 herein that he has locus standi to contest the matter in this Civil Miscellaneous Appeal in view of receipt of notice from the appellant-bank as well as this Court. Both the said notices are perused and they support the contention of the learned counsel for Respondent No.4 owner of the accident tractor and trailor. Therefore, his locus standi cannot be questioned, since he was a party to the proceedings before the Claims Tribunal, though, he remained exparte and since the liability to pay the compensation also fastened on him along with other respondents. 19. In the facts and circumstances, the plea raised on behalf of the appellant-bank that the bank being the hypothecating bank, it was under no obligation to pay the premium of the offending vehicle which was under hypothecation from time to time and that it was neither owner nor possessor of the offending vehicle and as such it can not be fastened with liability to pay the compensation awarded by the Claims Tribunal, cannot be accepted. It has got to be held that the appellant- bank was under obligation to pay the premium in respect of the vehicle from time to time, as long as the vehicle remained subject of the hypothecation agreement and it must be held to be the owner of the vehicle if not the possessor. Generally, in such a case, the possession of the vehicle remains with the purchaser under the hypothecation agreement, while its ownership remained with the hypothecation bank. 20. In the light of the facts and circumstances of this case, this Court does not find any legal infirmity in the impugned award dated 19-12-2004 passed in OP.No. 234 of 2004 by the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Medak at Sanga reddy, warranting interference from this Court. 21. In the result, the Civil Miscellaneous Appeal fails and the same stands dismissed. However, in the facts and circumstances, there shall be no order as to costs. ______________________________ JUSTICE B.N.RAO, NALLA. 15-07-2010. I s L THE HONOURABLE SRI JUSTICE B.N. RAO NALLA MA.CIVIL MISCELLANEOUS APPEAL NO.2253 OF 2007 Circulation No.165 Date:15-7-2010 Computer No.43 Court Master: I s L [1] ) AIR-1987 GUNJARAT 1