1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.821 OF 2011 Sundarrao S/o.Munjaji Kurhe, Age-54 years, Occu-Agriculturist and Business, R/o.Shirala, Tq.Aundha, Dist.Hingoli APPELLANT VERSUS 1. Ramrao S/o.Annasaheb Borgad, Age-36 years, Occu-Agriculturist, R/o.Nahad, Tq.Basmat, Dist.Hingoli, 2. Sagarbai W/o.Ramrao Borgad, Age-32 years, Occu-Household, R/o.Nahad, Tq.Basmat, Dist.Hingoli, 3. The Oriental Insurance Company Ltd., Through its Branch Manager, Daulat Building, Shivaji Chowk, Parbhani, Tq. And Dist. Parbhani RESPONDENTS Mr.S.K.Chavan, learned counsel for the appellant. Mr.P.C.Mayure h/f. Mr.P.P.Bafna, learned counsel for respondent no.3. Mr.S.B.Nandkhedkar, learned counsel for respondents no.1 and 2. (CORAM : A.V.POTDAR, J.) DATE : 18/11/2011 ORAL JUDGMENT : 2 1. Heard respective parties. 2. Admit. By consent, taken up for final hearing at this stage. 3. Challenge in this appeal is to the judgment and award passed by the Motor Accident Claim Tribunal, Basmat in M.A.C.P.No. 32/2006, dated 02/12/2009. Perusal of the record and the submissions of the respective counsels discloses that the son of respondents no.1 and 2, by name Vaibhav was proceeding to Aundha Nagnath alongwith his uncle and aunt in the jeep bearing registration no.MH-22-B-8165. The said vehicle turned turtled near Jawala Bazar. It is alleged that the jeep met with an accident due to rash and negligent driving of the driver of the jeep in which Vaibhav had sustained injuries. He succumbed to injuries on 24/04/2006 in the private hospital at Parbhani. An offence came to be registered vide CR No.66/2006. It is alleged that the present appellant, who is respondent no.1 in the said M.A.C.P., is the owner of the vehicle, which was duly insured with the respondent no.2. Claim u/s. 166 of The Motor Vehicle Act was filed by respondents no1 and 2 against the appellant and respondent no.3 before the M.A.C.T. Basmat, claiming compensation of Rs.2,50,000/- alongwith interest and costs. It is recorded by the learned Motor Accident Claim Tribunal that the present appellant, who was respondent no.1 before the M.A.C.T. Basmat, remained absent even though duly served. Hence ex-parte order was passed against him. During trial, on the basis of the 3 documents placed on record, liability of the Insurance Company was decided. The liability was solely saddled on the respondent no.1. It is to be noted that driver of the vehicle was not a party to the M.A.C.P. before the Lower Court. After the judgment and award was passed, it was put for execution and when the notice of the execution was served upon the present appellant, according to him, he realise that the ex-parte decree was passed against him. According to him, he was not served with the summons and the report of summons before the Court is false and vague. 4. Initially, it appears that this appellant has moved the learned Motor Accident Claim Tribunal under Order 9 Rule 13 of The C.P.C. to set aside the ex-parte judgment and award passed against him, which request came to be turned down by the learned M.A.C.T., hence the present appeal. 5. During the course of submissions, it is urged that the respondents no.1 and 2, who are the petitioners before the Lower Court, were aware that one Ganesh Nagorao Kadam, R/o.Nahad, Tal.Basmath is the owner of the vehicle and was driving the vehicle, which fact reflects in the complaint, lodged by Ramrao Annasaheb Borgad, who is the first petitioner in the M.A.C.P. and also first respondent in this appeal. This complaint came to be lodged immediately after the occurrence of the accident, on 24/04/2006. His supplementary statement was also recorded on the same day, 4 wherein he has stated that at the relevant time, son of said Ganesh by name Sambhaji was driving the vehicle. It is urged that even though the respondents were aware that this Ganesh was the owner of the vehicle and his son was driving the vehicle at the relevant time, this Ganesh as well as his son Sambhaji were not arrayed as a party to the M.A.C.P., but by taking advantage of some incorrect record, the present appellant was arrayed as respondent no.1 in the M.A.C.P. as in the police record, the vehicle was shown insured in the name of the appellant with Insurance Company. It is urged that the appellant has already sold the vehicle in question to this Ganesh in the year 2004 and accordingly, his name was recorded in the R.T.O. Record. 6. There is no duality of opinion about who is the true owner of the vehicle as the person in whose name, the vehicle is registered in the record of R.T.O. is to be held as the true owner of the vehicle. Now those documents about the record from the R.T.O. are placed on record as the civil application filed alongwith this appeal was allowed today only. Apart from it, at the time of submissions, latest record from the office of Deputy Regional Transport Office, Hingoli was shown to me, which reveals that on the date of incident, Ganesh Kadam was the owner of the vehicle in question, which met with an accident. If it is so, then the liability of the claim of compensation must not be saddled on this appellant. Considering all these facts, this is a fit case which required to be remitted back to the Court below for its fresh consideration. Hence following is the order - 5 1. First appeal stands allowed. The judgment and award impugned in M.A.C.P.32/2006 is hereby quashed and set aside. No order as to costs. 2. Parties to appear before the Lower Court on 29/11/2011. After appearance of the parties, learned Motor Accident Claim Tribunal, Basmath to give an opportunity to the appellant to file his written statement, and also to give an opportunity to the respondents no.1 to 3 to join the real owner and driver of the vehicle as a party to the M.A.C.P. if they so think fit and then to decide the M.A.C.P. afresh in accordance with Law, within the period of 6 months from the date of receipt of writ of this order. 3. First appeal stands disposed of accordingly. 4. Registry to send back the R & P to the Lower Court forthwith. Statutory amount, if any, deposited by the appellant in this Court, be remitted back to the Motor Accident Claim Tribunal, Basmath. (A.V.POTDAR, J.) khs/NOV.2011/fa821-11