IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 19075 of 2021 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI ==========================================================

==========================================================

DIPIKA RAJESHKUMAR PATEL WD/O RAJESHKUMAR VISHNUBHAI PATEL Versus PRAVINSINH R VAGHELA ==========================================================

Appearance:

MR JIGAR D DAVE(6528) for the Petitioner(s) No. 1,2,3,4,5 VINODKUMAR M MAKWANA(9530) for the Petitioner(s) No. 1,2,3,4,5 DHRUVIK K PATEL(7769) for the Respondent(s) No. 3 KALPESH R PATEL(7896) for the Respondent(s) No. 3 KAUSHAL S JANI(7627) for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 02/09/2022

ORAL JUDGMENT

1. Rule. Mr. Kaushal S.Jani and Mr. Dhruvik K.Patel learned advocates waive service of notice of rule on behalf of respective respondents. With the consent of the parties, the matter is heard finally today. Rule is fixed forthwith.

2. Mr. Jigar D.Dave, learned advocate for the petitioners submitted that the present petitioners are the claimants in the Motor Accident Claim Petition No.108 of 2019 filed before the Motor Accident Claim Tribunal (Aux.), Ahmedabad, challenging the order, below Exhibit-17, filed by respondent no.3 – Indusind Bank praying to delete it as a party to the matter, which came to be allowed vide order dated 31.07.2021.

3. Exhibit-17 was moved by the respondent no.3 – Indusind Bank under Order 1 Rule 10(2) of the Code of Civil Procedure (‘CPC’ for short) stating that Bank is not owner of the vehicle and they have hypothecated the vehicle - Ashok Leyland Company’s Dalu bearing no.GJ-27-X-1398, which was involved in the accident. It was urged before the Tribunal that the ownership and control of the vehicle was with respondent nos.1 and 2.

3.1 The learned Tribunal had made the observation that respondent no.3 had sanctioned the loan for purchasing of the vehicle involved in the accident for respondent no.2 and because of the said reason it was hypothecated by them and thus relying on the observation made in the case of Bank of Baroda, Ahmedabad Vs. Rabari Bachubhai Hirabhai reported in (1986) 1 GLR 144, the learned Tribunal came to the conclusion that the respondent no.3 cannot be held liable for payment of damage, as they are not necessary party to the claim petition.

3.2 The learned Tribunal distinguished the case relied upon by the contesting party of Madras High Court in the case of K.Ramalingam Vs. Parvathi, Minor Deivayanai, on the ground that the State Bank of India was liable to give compensation as they have failed to pay the insurance amount to the Insurance Company within stipulated time; while in the present matter it was nowhere stated that respondent no.3 has responsibility to pay the insurance of the vehicle.

4. It appears from the order impugned that the learned Tribunal has only reproduced the observations in the case of Bank of Baroda, Ahmedabad (supra), while the Tribunal has not even perused the loan agreement of Indusind Bank with the borrower, thus, under what premise the learned Tribunal come to the conclusion that, it was nowhere stated that Bank has responsibility of payment of insurance of the vehicle, becomes questionable.

4.1 In the context, Advocate Mr. Dhruvik K.Patel for the respondent no.3 - Indusind Bank filed a copy of the loan agreement for the perusal of this Court.

5. Mr. Jigar D.Dave, learned advocate for the petitioners contended that the learned Tribunal ought to have considered the fact th