JUDGMENT :

1. This appeal under section 173 of the Motor Vehicles Act, 1988 ('MV Act' for short) emanates from the judgment and award dated 28.01.2005 passed by the Motor Accident Claims Tribunal (Auxi) Gandhinagar in M.A.C.P. No. 191 of 1990. The Tribunal, under the impugned award, held the appellant, who was arraigned as the owner of the offending vehicle and respondent No.10-insurance company of the offending vehicle, to satisfy the award jointly and severally. The Tribunal has, by the impugned judgment, directed respondent No.10-insurance company to pay the compensation to the claimants and then recover the same from the appellant after instituting appropriate proceeding before the appropriate executing Court.

2. Facts giving rise to the present appeal emanating from para No.2 of the impugned judgment are as under:

The deceased Madhavji on 26.03.1989 was travelling with his goods on hire in truck No. GRN-5463 and the truck driver was driving his truck in rash and negligent manner and he was driving the truck in excessive speed and, therefore, when the truck was going on Gandhinagar-Sarkhej Road and reached near Khoraj village at that time he lost control over the steering and truck over-turned and thereby the deceased sustained serious injuries and ultimately succumbed to the injuries. It is also averred in the claim petition that when the accident took place, the deceased was doing the business keeping the shop at his native place and also doing the agriculture work and thereby he was earning Rs. 3000/- to Rs. 4000/- per month. It is also stated that when the accident took place deceased was aged about 42 years. The truck was owned by the opponent No.2 and it was insured with the opponent No.3-The Oriental Insurance Company when the accident took place, therefore, in these circumstances under the various heads, the claimants have asked the compensation of Rs. 4,00,000/- from the opponents jointly and severally with interest.

3. The Tribunal, after conclusion of the trial of the claim petition, partly allowed the claim petition and claimants were entitled to receive Rs. 3,32,000/- as compensation with 9% interest and proportionate cost from the date of application till realization. Respondent No.10-insurance company was directed to pay the awarded compensation and then recover the same from the appellant by initiating proceedings before the concerned executing court.

4. It needs to be noted at the threshold that, before the claim petition was set down for the trial, necessary formalities of serving the concerned respondents including the appellant herein were completed. The appellant, despite service of notice of the claim petition, chose to remain absent and did not participate in the proceedings of the trial of the claim petition.

5. By way of present appeal, the appellant, who happens to be the owner as per the record of the registering authority, has preferred this appeal, disowning his liability much before the occurrence of the accident.

6. I have heard Mr. J.V.Japee, learned advocate for the appellant. He has strongly urged that much before the accident, the offending vehicle was sold to Mr. Madhavji Patel of village Narniya, Dist. Dungarpur, Rajasthan and Mr. Magupati K. Patel of village Ajmeriya, Dist. Dungarpur, Rajasthan on 04.12.1988. According to his submission, as the offending vehicle was already transferred in favour of the aforesaid two gentlemen, the Tribunal ought not to have fasten the liability of payment of compensation under the award on the appellant. In this regard, he has placed reliance on ground no. 4.5 of his appeal memo which reads as under:

“4.5 That the Tribunal has failed to appreciate that the actual owner of the vehicle at the time of the accident had n ot brought to the notice of the Tribunal that the offending vehicle was already sold by the appellant to one Madhavji Gulabji Patel of village Naraniya and Magupati K. Patel of village, Ajmeria on 4.12.88 i.e. prior to the date of the accident whi