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1991 DIGILAW 388 (DEL)

DIPAK DIWAN v. SHANTI DIWAN

1991-07-09

SANTOSH DUGGAL

body1991
Santosh Duggal ( 1 ) THIS appeal is directed against an order passed by the Motor Accidents Claims Tribunal, Delhi, on 14. 4. 1986 whereby the application filed by respondent Nos. 1 to 3 as petitioners under section 92-A of the Motor Vehicles Act (for short the Act ) was disposed of and the petitioner herein, who was respondent No. 6 in the claim petition, was ordered to pay Rs. 15,000. 00 by way of interim relief to respondent Nos. 1 to 3 as also to respondent Nos. 4 and 5, the parents of the deceased. Respondent Nos. 1 to 3 are the widow and two minor sons of the deceased, namely, Satish Chand Diwan. ( 2 ) THE plea of the petitioner, who at the relevant time when the accident took place was driving the car involved in the accident, was that the accident occurred due to the negligence and rash driving of the scooter driver, Parkash Chand Batra, for the reason that the deceased was sitting on the pillion seat of the said scooter and there is a prima facie evidence to show that it was the entire fault of said scooter driver which resulted in the fatal accident in as much as the site plan revealed that he was coming on the wrong side of the road which has a clear divider whereas the petitioner was on his correct side. ( 3 ) WHILE filing reply to the claim petition this petitioner had moved an application under Order 1, rule 10, Civil Procedure Code, seeking an order of the court to implead the said scooter driver who incidentally happened to be the owner also. The Tribunal, however, while passing the impugned order, observed that the fact, whether there was any joint tortfeasor or not, who could be held responsible for the accident, so far as the order under section 92-A is concerned, was not relevant factor or circumstance for the reason that the provisions of this section are very clear that the Tribunal was concerned at this stage only with the factum of accident and the resultant death. Further, while noticing the provisions of section 92-A where the liability in the case of more than one tortfeasor was joint and several, the Tribunal held that since the petitioners were seeking an order of interim compensation only against the present petitioner, who was the car driver, the fact that they had not impleaded the owner of the scooter also as a co-respondent, was not relevant. Accordingly an order under section 92-A granting interim relief of Rs. 15,000. 00, as contemplated by law, was passed against the appellant and in favour of the respondent Nos. 1 to 5 in the present appeal. ( 4 ) THE appellant has come up in this appeal reiterating the contentions that it was the owner of the scooter who alone was responsible for the accident and that he was a necessary and proper party to the petition for award of compensation and that the application was rejected without any justification and that the order directing the appellant to pay a sum of Rs. 15,000. 00 as an interim award was not sustainable. There is also a plea on facts that the appellant was not guilty of any negligence. ( 5 ) I have summoned the record and heard learned counsel for the parties. On a perusal of the impugned order I find that the Tribunal has passed the order of interim award primarily on the wording of section 92-A of the Act which contemplates the liability even when there is involvement of more than one vehicle in accident to be joint and several. To that extent the order does not appear to suffer from any error or infirmity. ( 6 ) HOWEVER, it was contended by the counsel for the appellant that the application under Order 1, rule 10, Civil Procedure Code, was being listed throughout together with the application under section 92-A of the petitioners and both were heard together but while passing order of interim award, the Tribunal has not passed any speaking order in respect to the said application under Order 1, rule 10, Civil Procedure Code and rejection can only be implied in the sense that the observation has been made to the effect that the driver/owner of the scooter was not necessary party in so far as it has a bearing on the order passed under section 92-A of the Act. I find that to that extent the contention is justified. ( 7 ) I notice from the order sheet that an application under Order 1, rule 10, Civil Procedure Code, 1908 was moved before the Tribunal on 4th December 1985. The application was linked by the Tribunal right from that stage with the application under section 92-A and after reply was filed, both the applications were being fixed for hearing for number of dates together. However, while finally disposing of the petition under section 92-A apart from the observations as noticed above, in so far as these have a bearing on the implication of the law under section 92-A of the Act, there is no clear order in respect to the application as such. ( 8 ) LEARNED counsel for the appellant has placed reliance on a judgment of Karnataka High Court in the case reported as Karnataka State Road Transport Corporation v. Reny Mammen, 1991 ACJ 403 (Karnataka), where it has been held that in the case of joint tortfeasors the law may have to be dealt with in the ultimate analysis to the extent of negligence of each one of the drivers. ( 9 ) IN view of this authority relied upon by the appellant s counsel and in view of the fact that there is no speaking order passed by the Tribunal in respect to the application under Order 1, rule 10, Civi7 Procedure Code, which was being linked together with the application of the petitioner under section 92-A of the Act, I think it a fit case to direct while dismissing the present appeal against the order of the interim award under section 92-A of the Act that the Tribunal shall hear this application under Order 1, rule 10, Civil Procedure Code and pass a speaking order. In view of the fact that this application is pending since December, 1985 and the claim petition is still pending it is considered fit to give a time-bound direction to the Tribunal to dispose of this application under Order 1, rule 10, Civil Procedure Code. ( 10 ) IT is, therefore, directed that the record of the Tribunal be sent back without any further delay and the matter be listed before the concerned Tribunal or before the successor court of the Tribunal that ordered the impugned order. ( 10 ) IT is, therefore, directed that the record of the Tribunal be sent back without any further delay and the matter be listed before the concerned Tribunal or before the successor court of the Tribunal that ordered the impugned order. I am informed that the Tribunal was last presided in so far as this case is concerned by Mr. J. P. Sharma, who has since been transferred. It is directed that the matter be listed in the successor court of Mr. J. P. Sharma on 25. 7. 1991 and the parties or counsel to appear before the presiding officer on that date. It is directed that the said presiding officer shall hear and dispose of this application under Order 1, rule 10, Civil Procedure Code. In case no successor has still been appointed, then a suitable date of not more than two weeks from the date now fixed shall be given and it shall be incumbent on the successor court to dispose of the matter after hearing the parties within two months from the date the file is first put up before him. ( 11 ) THE appeal is disposed of in the above terms with the result that in so far as the order under section 92-A is concerned, that is sustained. The petitioner has already paid a sum of Rs. 7,500. 00 in terms of the said interim award. In terms of the order of this court a bank guarantee was furnished for the remaining amount. The interim order is vacated and the appellant is directed to pay the balance amount of Rs. 7,500. 00 by 25. 7. 1991 which shall be disbursed by the Tribunal in terms of the order originally passed, and this is without appellant s right which may accrue as a result of an order that may be passed on application under Order 1, rule 10, Civil Procedure Code and the final order in the case. Further proceedings in the claim petition be held up till this -application under Order 1, rule 10, Civil Procedure Code is disposed of as per terms of the order of this court. ( 12 ) AT this stage, it is noticed that another appeal filed by the registered owner of the car involved in the accident, being F. A. O. No. 170 of 1986 is also listed for today. ( 12 ) AT this stage, it is noticed that another appeal filed by the registered owner of the car involved in the accident, being F. A. O. No. 170 of 1986 is also listed for today. It is reported by the office that this appeal was dismissed in default and it was never restored to the court file. This fact is also affirmed by Ms. Nandita Chandra appearing for the respondent. The appeal is, therefore, taken off the board.