Important Point: Creditor was in possession of the Jeep under both the agreements i.e. agreement of pledge as well as hypothecation agreement, the appellant bank can be said to be "owner" within the definition of section 2(19) of the Motor Vehicles Act, 1929 and therefore, being "owner" the appellant bank is liable to pay compensation to the victim of the accident.

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned Judgment and Award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Banaskantha at Palanpur in Motor Accident Claim Petition No. 120 of 1986 dated 21/9/2002, by which the learned tribunal has held the original opponent No. 4 jointly and severally liable to pay compensation for the injuries sustained by the original claimant in the vehicular accident, appellant herein-original opponent No. 4 - financer - Himmatnagar Nagrik Sahakari Bank Ltd. has preferred the present First Appeal.

2. In a vehicular accident which occurred/took place on 5/12/1985, the original claimant, who was travelling as a passenger in a Jeep bearing registration No. GRN 1126, sustained severe injuries. Therefore, the original injured claimant filed Motor Accident Claim Petition No. 120 of 1986 before the learned tribunal claiming compensation of Rs.50,000/- for the injuries sustained by him. It was the case on behalf of the original claimant that due to rash and negligent driving of the opponent No. 5, driver of aforesaid Jeep, the accident has occurred. That the jeep involved in the accident was owned by the opponent No. 1 and was under hyer-purchase agreement with the appellant herein - original respondent No. 4 Himmatnagar Nagrik Sahkari Bank Ltd.

2.1. Though served, nobody appeared on behalf of the original opponent Nos.1 to 3 and 5. Therefore, the claim petition proceeded ex-parte against the original opponent Nos.1 to 3 and 5.

2.2. From the impugned Judgment and Award it appears that as such the original opponent Nos. 2 and 3 were erroneously joined as opponents in the claim petition.

2.3. That the claim petition was opposed by original opponent No. 4 - financer Bank by filing Written Statement at Ex.7. That the financer Bank specifically denied its liability. It was specific case on behalf of the financer Bank-original opponent No. 1 that as such the original opponent No. 1 Abdul Latif Ibrahimbhai Khadiwala was the owner of the Jeep in question and not the Bank and therefore, it was for him to pay tax, premium for insurance etc. It was also contended on behalf of the financer Bank that even in the RTO Book also, the original opponent No. 1 was shown as registered owner of the Jeep and an endorsement "HPA with Himmatnagar Sahkari Bank Ltd." was made. It was also contended on behalf of the bank that the bank, except giving loan, has done nothing. It was also contended on behalf of the appellant herein - original opponent No. 4 bank that as such the original opponent No. 1 was in actual and physical possession and use of the Jeep in question. Therefore, it was requested to dismiss the claim petition.

2.4. The learned tribunal framed the issues and one of the issue i.e. Issue No. 2 was with respect to liability and entitlement of the compensation and from whom.

2.5. That on appreciation of evidence, the learned tribunal held the driver of the Jeep sole negligent for the accident and injuries caused to the original claimant.

2.6. Considering definition of "owner" as per section 2(19) of the Motor Vehicles Act, 1939, and considering the Higher Purchase Agreement, in which it was specifically mentioned that the creditor i.e. the appellant Bank is in possession of the Jeep, as well as on interpretation of Higher Purchase Agreement - Ex.53 and Pledge Agreement produced at Ex.54, the learned tribunal has held that the appellant - original opponent No. 4 can be said to be "owner" of the Jeep being in actual possession and therefore, has held that the appellant-original opponent No. 4 is also jointly and severally liable to pay compensation to the original claimant.

2.7. Feeling aggrieved and dissatisfied with the impugned Judgment and Award passed by the learned tribunal in so far as holding the appellant herein - financer Bank jointly and severally liable to pay compensation to the original claimant, appellant herein - financer Bank - original opponent No. 4 has preferred t