B.P. Katakey, J.
1. The respondents No. 1 to 4 filed an application Under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation of Rs. 9 lacs initially against the present appellant and the Insurance Company, for the death occurred to Basudev Ghosh in a motor accident occurred on 22.01.91 at the lstBattalion Gate, Police Reserve at about 2:50 p.m. involving the motor vehicle bearing registration No. TRI 3817 (Canter), contending inter alia that their predecessor-in-interest who was a Constable of Tripura Police and was on traffic duty at the 1stBattalion Gate, Police Reserve, was dashed and ran over by the said vehicle and though was taken to G. B. Hospital, but was declared dead. It was also contended in the claim application that the deceased monthly income was Rs. 2600/- and was aged about 42 years and the owner of the vehicle is Shri Priya Vart Choudhury, the appellant herein. The said claim application was registered as T.S. No. 48 (MAC)/91 before the Motor Accident Claim Tribunal, West Tripura, Agartala. The respondents/claimants also prayed for passing an order Under Section 140 of the Act. During the pendency of the said claim application, Dilip Dey died and in his place, the present respondents No. 7(i) to 7(iii) were substituted.
2. The present appellant filed objection denying the contention of the claimants that he was the owner of the vehicle in question, since at the relevant point of time, the vehicle was leased out to Dilip Dey and Sudip Kumar Dey by a lease deed dated 22.07.1989 and said Dilip Dey and Sudip Kumar Dey are solely liable to pay compensation, if any, awardable by the learned Tribunal. In the said objection, the appellant also prayed for a direction to the claimants to take necessary steps for impleading said Dilip Dey and Sudip Kumar Dey as parties in the proceeding. On the basis of such assertion by the present appellant in the objection, the predecessor-in-interest of the respondents No. 7(i) to 7(iii) and the respondent No. 8 were impleaded in the proceeding before the learned Tribunal. The Insurance Company also filed their written objection contending that they are not liable for reimbursement of compensation that might be awarded by the learned Tribunal against the owner of the vehicle, as the policy of insurance which was issued in respect of the said vehicle was cancelled because of the fact that the cheque issued towards payment of premium was dishonoured by the Bank. It was further contended that the insurance policy was initially issued by the Insurance Company covering the risk of the present appellant and not Dilip Dey.
3. The predecessor-in-interest of the respondents No. 7(i) to 7(iii) and the respondent No. 8 also filed joint objection stating inter alia that they are no way connected with the vehicle in question and are not the owners of the vehicle. They have also denied execution of any agreement with the present appellant in respect of the said vehicle.
4. Learned Tribunal, thereafter, passed an order dated 04.08.92 awarding a sum of Rs. 50,000/- Under Section 140 of the Act directing the present appellant to pay the same, which was challenged by the present appellant in MFA No. 76/92 before this Court (renumbered as FA 130/98). In the said appeal no interim order was passed, but only the records of MAC (M) No. 36/91 was called for, wherein the order dated 04.08.92 awarding compensation Under Section 140 of the Act was passed. This Court thereafter vide judgment and order dated 05.01.99 disposed of the appeal by directing the learned Tribunal to allow the appellant to adduce evidence and to decide the question as to whether the vehicle was leased out to Dilip Dey and Sudip Kumar Dey, as preliminary issue, as no evidence has been recorded in the claim petition pending before the learned Tribunal and the learned Tribunal did not rely upon the photo copy of the agreement filed by the present appellant in support of the claim that the vehicle in question was leased out to Dilip Dey and Sudip Kumar Dey. While passing the said judgment and order, this Court was, however, not informed by the appellant herein that the recording of evidence in the claim petition by the learned Tribunal was over and the appellant did not examine any witness in support of his stand taken in the written objection and hearing of argument was concluded on 04.09.98 and the judgment was kept reserved by the Tribunal. It also appears from the record that the judgment passed by this Court on 05.01.99 in MFA No. 76/92 was communicated only on 18.01.99 and the appellant also neither informed the learned Tribunal nor produced any copy of the said judgment and order dated 05.01.99 before the learned Tribunal. The learned Tribunal was ignorant of such judgment passed by this Court in the aforesaid MFA, while awarding compensation of Rs. 3,30,000/- with interest @ 12% per annum w.e.f. 11.03.91 (date of filing the claim petition) vide judgment dated 16.01.99 and directing the present appellant to pay the said compensation, within three months after deducting the interim compensation, if any, already paid, with a further direction that 50% of the awarded amount to be paid to the claimant/respondent No. 1 and the remaining amount to the claimants/respondents No. 2 to 4 in equal share, which is to be kept in fixed deposit in their respective names in Tripura Gramin Bank, Agartala Branch, since they were minor at the relevant point of time. Hence the present appeal by the present appellant.
5. I have heard Mr. B. Das, learned Sr. counsel for the appellant as well as Mr. Talapatra, learned Sr. counsel for the respondents/claimants No. 1 to 4. I have also heard Mr. P. Roybarman, learned Counsel appearing on behalf of the respondent Nos. 7(i) to 7(iii) and 8. The name of the respondent No. 5, Shri Mantu Choudhury, the driver of the offending vehicle, was deleted from the list of the respondents vide order dated 10.12.07 passed by this Court in C.M.Appl. No. 336/07 at the instance of the appellant.
6. Mr. Das, learned Sr. counsel for the appellant while challenging the judgment and award passed by the learned Tribunal, has submitted that the appellant has challenged the said judgment and award only in respect of the direction to satisfy the said award by the appellant and not other findings recorded by the Tribunal including the quantum of the compensation awarded. It has been submitted by the learned Sr. counsel that since this Court vide judgment and order dated 05.01.99 passed in MFA No. 76/92 directed the learned Tribunal to take up the issue as to whether the vehicle in question was leased out to the predecessor-in-interest of the respondents No. 7(i) to 7(iii) as well as the respondent No. 8, after giving opportunity to the appellant to adduce evidence in support of his claim that the vehicle having been leased out in their favour by an agreement executed between them, they are liable to pay the compensation as awarded by the learned Tribunal as they became the owner within the meaning of Section 2(30) of the Act, the award passed by the learned Tribunal is contrary to the said direction of this Court, as no such opportunity was given to the appellant to adduce evidence after the said judgment was passed by this Court. According to Mr. Das, as learned Tribunal without affording any opportunity to the appellant has decided the claim against him vide judgment and award dated 16.01.99 and that too, by ignoring the judgment and order dated 05.01.99 passed by this Court in MFA No. 76/92, the said judgment and award is required to be set aside and the matter is to be remanded to the learned Tribunal for giving fresh decision, after giving opportunity to the appellant to adduce evidence in support of his claim. It has further been submitted by Mr. Das that in support of his claim the appellant has also filed certain documents before the learned Tribunal which include a copy of the agreement executed between the appellant and the predecessor-in-interest of the respondents No. 7(i) to 7(iii) as well as the respondent No. 8, and also the certificate of insurance initially issued by the Insurance Company, which were misread by the learned Tribunal by holding that from the said documents it cannot be held that the vehicle in question was leased out by the present appellant in favour of those persons. Referring to the deposition of the claimant, the lone witness examined, it has further been submitted that the said witness has admitted that Dilip Dey is the owner of the vehicle and therefore, the learned Tribunal ought not have held that there was no agreement between the parties leasing out the said vehicle. It has further been contended by Mr. Das that it is apparent from the written objection filed by the Insurance Company that the premium was paid by Dilip Dey in the name of the present appellant in respect of the said vehicle by cheque which also goes to show that the vehicle was leased out to Dilip Dey, the predecessor-in-interest of the respondents No. 7(i) to 7(iii) at the relevant point of time. Hence, according to the learned Sr. counsel, the findings recorded by the learned Tribunal that there is no material on record to demonstrate that the vehicle was leased out by the appellant in favour of Dilip Dey and Sudip Kumar Dey, cannot be sustained. Mr. Das, learned Sr. counsel for the appellant placing reliance on the decision of the Apex Court in the case of Rajasthan State Road Transport Corporation v. Kailash Nath Kothari and Ors. reported in : AIR1997SC3444 , submitted that as the vehicle was leased out to Dilip Dey, the predecessor-in-interest of the respondents No. 7(i) to 7(iii) as well as to respondent No. 8, at the relevant point of time, they became the owners of the vehicle within the meaning of Section 2(30) of the Act and as such they are only liable to pay the compensation as awarded by the learned Tribunal.
7. Mr. P. Roybarman, learned Counsel for the respondents No. 7(i) to 7(iii) as well as the respondent No. 8, on the other hand has submitted that the judgment and order dated 05.01.99 passed by this Court in MFA No. 76/92, which was not contested by the respondents therein, was never communicated to the learned Tribunal before passing of the judgment and award dated 16.01.99. It has further been contended that the appellant also did not inform this Court while passing the said judgment and order dated 05.01.99 that opportunity to adduce evidence was given to him in support of his stand taken in the written objection which he did not avail and the recording of evidence of the witnesses were closed long back and the judgment was kept reserved by the learned Tribunal vide order dated 04.09.98. According to Mr. Roybarman, learned Tribunal in feet has taken into consideration the copy of the agreement filed by the appellant as well as the objection filed by the Insurance Company and also the certificate of insurance initially issued by it, while delivering the impugned judgment and award dated 16.01.99 and recorded the finding of fact that such documents do not lead to the conclusion that the vehicle in question was leased out by the present appellant in favour of the predecessor-in-interest of the respondents No. 7(i) to 7(iii) and the respondents No. 8. Hence, it is submitted that the judgment and award passed by the learned Tribunal may not be interfered with.
8. Mr. S. Talapatra, learned Sr. counsel appearing for the claimants, has also submitted that though the learned Tribunal has given ample opportunity to the appellant to adduce evidence, no evidence was led by the appellant and the documents produced by the present appellant before the learned Tribunal were taken into consideration, though were not proved as required under the law. Hence, according to the learned Counsel for the claimants, there is no merit in the appeal and the same is required to be dismissed.
9. Section 2(30) of the Act, defines 'Owner' as under:
'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.
10. 'Owner', therefore, means not only the person in whose name the motor vehicle stands registered, but also the person in whose possession the vehicle is, when such motor vehicle is the subject matter of hire-purchase, agreement or agreement of lease or an agreement of hypothecation. The Apex Court in Rajasthan State Road Transport Corporation (supra), while dealing with the provision of Section 110B and 2(19) of the Motor Vehicles Act (4 of 1939), has held that though the definition of 'owner' under Section 2(19) of the Act is not exhaustive, it has to be construed in a wider sense, keeping in view the facts and circumstances of a given case and the expression must include the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the vehicle. It has further been observed that to confine the meaning of 'owner' to the registered owner only in a case where the vehicle is in the actual possession and control of the hirer, would not be proper for the purpose of fastening of liability in case of an accident.
11. From the definition of 'owner' in Section 2(30) of the Act, it is therefore evident that in case a vehicle is subject of a hire-purchase agreement or an agreement of lease or an agreement of hypothecation, then the person in possession and control of the vehicle and under whose direction and commands the driver is obliged to operate the vehicle, is liable to pay the compensation as may be awarded by the learned Tribunal under the provision of the Act at that relevant point of time. The burden is on the person who claims that though he is the registered owner, the vehicle is in actual possession and control of another person under an agreement, and as such is not liable to pay compensation, to prove the existence of such agreement.
12. In the instant case, the present appellant has contended that as the vehicle in question at the relevant point of time, i.e. at the time of the accident, was leased out to the predecessor-in-interest of the present respondents No. 7(i) to 7(iii) and the respondent No. 8, they are liable to pay the compensation awarded by the learned Tribunal. On the other hand as noted above, the predecessor-in-interest of the present respondents No. 7(i) to 7(iii) as well as the respondent No. 8 have denied execution of such agreement and in clear terms, they have stated that they have no connection with the vehicle in question. It appears from the records of T.S. (MAC) No. 48/91 that the evidence of the claimants' lone witness, namely the present respondent No. 1, was recorded by the Tribunal on 26.06.93, who was duly cross-examined by the present appellant and was discharged. It also appears from the order sheet maintained in the said case by the learned Tribunal that on the prayer of the present appellant, the case was adjourned vide orders dated 20.05.93, 11.08.93 and 18.09.93 for production of stay order in the claim case, but the present appellant failed to produce such stay order. On his failure to do so, the learned Tribunal fixed the matter on 16.11.93 for recording of further evidence from the side of claimants.
13. The case was thereafter adjourned on different dates. Learned Tribunal ultimately vide order dated 10.06.98 directed both the parties, namely the claimants as well as the present appellant and other opposite parties, to be present before it on 06.08.98 with their respective witnesses, but the claimant has informed the learned Tribunal that she would not adduce any further evidence. Hence the recording of the claimant's witness was closed. The learned Tribunal thereafter fixed 04.09.98 for recording of evidence of the opposite parties which includes the present appellant, but they did not adduce any evidence and hence, the learned Tribunal after hearing the argument of parties on 04.09.98 kept the judgment reserved fixing 18.09.98, which, however, ultimately delivered on 16.01.99.
The judgment and order passed by this Court on 05.01.99 in MFA No. 76/92, as noted above, was never produced by the present appellant before the learned Tribunal at anytime before 16.01.99. The said judgment and order of this Court was communicated to the learned Tribunal only on 18.01.99. It also appears from the said judgment dated 05.01.99 that the appellant did not inform this Court while delivering the said judgment that evidence has already been recorded and the recording of evidence from both the sides were closed and hearing of argument was concluded and judgment was kept reserved by the learned Tribunal. It also appears from the judgment dated 05.01.99 that an altogether different impression was given at the time of passing of the said judgment, as has been recorded in the said judgment, that evidence is yet to be recorded.
14. The present appellant being the appellant in the said MFA No. 76/92, it was his duty to apprise the learned Tribunal about the judgment passed on 05.01.99 in the said appeal, which he has failed to do. It may also be noticed that the present respondent though were parties in the said appeal, nobody appeared on their behalf at the time of passing of the judgment on 05.01.99. Therefore no fault can be found with the learned Tribunal in not affording further opportunity to the present appellant to adduce evidence in terms of the aforesaid judgment and order dated 05.01.99 passed in the appeal preferred by present appellant. Moreover, it appears from the impugned judgment and award dated 16.01.99 that the learned Tribunal has taken into consideration the agreement dated 22.07.89, purportedly executed between the present appellant and Dilip Dey alongwith Sudip Kumar Dey, while passing the impugned judgment and award. The learned Tribunal upon perusal of the same, has recorded the finding that from the said agreement, though was not proved by the appellant by adducing any evidence, it cannot be held that the vehicle in question was leased out by the present appellant to Dilip Dey and Sudip Kumar Dey. The said agreement does not mention any engine number or chassis number or the registration number of the vehicle.
15. I have gone through the agreement which is available on record, which does not disclose any identity of the vehicle. Hence the said document does not support the contention of the appellant that the vehicle was leased out to Dilip Dey and Sudip Kumar Dey. It also appears from the impugned judgment and award passed by the learned Tribunal that it has taken into consideration the certificate of insurance, which was originally issued in favour of the present appellant but was subsequently cancelled by the Insurance Company. The learned Tribunal also took into consideration, while passing the impugned award, the fact that same was issued in the name of the present appellant being the owner of the vehicle and it does not disclose execution of any agreement between the present appellant and the predecessor-in-interest of the present respondents No. 7(i) to 7(iii) and the respondent No. 8. Mere statement of the claimant during the cross-examination that Dilip Dey is the owner of the vehicle cannot lead to the conclusion that the agreement was executed between the present appellant and Dilip Dey and Sudip Kumar Dey, when it is an admitted fact that the present appellant is the registered owner of the vehicle. The appellant though was given opportunity, has chosen not to adduce evidence before the Tribunal. Therefore, therse is no question of giving further opportunity to adduce evidence. On the other hand as discussed above, learned Tribunal took into consideration all the documents filed by the appellant before it, though they were not properly proved as required under the law. Admittedly, the appellant is the registered owner of the vehicle. The appellant could not prove his contention that the vehicle was leased out to Dilip Dey and Sudip Kumar Dey at the relevant point of time by executing any agreement.
16. That being the position, I am of the view that the appellant is not entitled to any further opportunity to adduce evidence in support of their contention, as he failed to avail the opportunity given to him by the learned Tribunal.
17. In view of the aforesaid discussions, the appeal is devoid of any merit and therefore, dismissed. The appellant is directed to pay the remaining amount of compensation as awarded by the learned Tribunal, within a period of two months from today. However, there shall be no order as to costs.