( 1 ) IT is distressing to find that the Motor Accident Claims Tribunal has foisted liability to pay compensation on the appellant Bank by a one line statement to the effect that the hypothecating Bank the Bank of Baroda Ahmedabad which also steps into the shoes of the owner is vicariously liable. Except this statement found in paragraph 9 of the judgment we do not find any discussion in support of the statement that the hypothecating Bank steps into the shoes of the owners of the vehicle by virtue of the fact that the offending vehicle was hypothecated with the Bank. It is indeed surprising that the learned Presiding Officer constituting the Tribunal did not think it necessary to examine the relationship between the owners of the vehicle and the Bank arising out of the agreement of hypothecation. Except the ipse dixit of the learned Presiding Officer that the hypothecating Bank steps into the shoes of the owners of the offending vehicle there is nothing in the entire judgment to indicate that the Presiding Officer made any effort to understand the jural relationship between the owners of the offending vehicle and the hypothecating Bank. We will immediately point out that this averment of the Tribunal is wholly unsustainable.

( 2 ) ON 10/02/1981 at about 6. 00 p. m. a passenger bus and a motor truck collided on the Morvi-Rajkot State Highway near culvert No. 1/59 at a short distance from village Shanala. The bus GTZ 1806 was proceeding towards Morvi with a marriage party and while it was crossing the culvert the motor truck GRS 5069 came from the opposite direction and simultaneously tried to cross the culvert in the process the two vehicles grazed each other causing injuries to some of the passengers of the bus. The injured preferred separate Claim Applications which were heard and disposed of by a common judgment.

( 3 ) THE Claims Tribunal came to the conclusion that the drivers of both the vehicles involved in the accident were guilty of want of care and caution and apportioned the liability at 25 per cent so far as the bus driver and 75 per cent so far as the truck driver were concerned. Holding them both jointly and severally liable for the accident the Claims Tribunal awarded compensation to the claimants. So far as the question of negligence of the vehicle drivers and the quantum of compensation are concerned the appellant does not dispute the same.

( 4 ) THE appellant Bank had advanced a loan to original Respondents Nos. 4 and 6 for purchasing the motor truck GRT 5069. The deed of hypothecation was executed by the owners respondents Nos. 4 and 6 in favour of the Bank. Under that agreement the vehicle in question was pledged with the Bank for due repayment of the loan advanced by the Bank. The vehicle remained in the possession of the owners and was plied by original respondent No. 8 as the driver engaged by the owners on the date of the accident. The question which therefore arises for consideration is whether the hypothecating Bank can be held vicariously liable to pay damages to the injured for the negligent act of the driver of the said vehicle. The Claims Tribunal has opined that the hypothecating Bank steps into the shoes of the owners and since the owners become vicariously liable for the tortious act of their servant the hypothecating Bank must also be held vicariously liable It may here be mentioned that the two owners of the vehicle have also been held vicariously liable for the tortious act of their driver along with the hypothecating Bank notwithstanding the fact that in the opinion of the Claims Tribunal the hypothecating Bank had stepped into the shoes of the owners.

( 5 ) IN order to determine whether the hypothecating Bank can be held vicariously liable for the tortious act of the truck driver it is necessary to understand the exact relationship between the Bank and the owners of the offending vehicle. The Bank had advanced a loan against the security of the offending vehicle under a deed