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2004 DIGILAW 409 (PAT)

Shailendra Prasad Roy v. Chandra Ram

2004-04-08

M.L.VISA

body2004
Judgment 1. This appeal, filed by appellants against the order and award dated 17.01.2002 and 08.02.2002 respectively passed by 1st Additional District Judge-cum-Additional Motor Vehicles Claims Tribunal, Madhepura in M.V. Claim Case No. 7 of 1999 allowing the claim case in part without contest against appellants and awarding compensation amount at Rs. 96,400/- with 6% of interest from the date of application till payment and in case of non-payment within the stipulated time enhancing the rate of interest as 12% per annum, with the consent of parties, is being finally disposed of at the stage of hearing under Order XLI, Rule 11 of Civil Procedure Code after hearing the parties. 2. The brief facts of the case are that deceased Pramod Kumar Ram aged about fifteen years was a Khalasi in the jeep bearing registration No. BR-13-7783 belong ing to appellant No. 1. The jeep was in sured with Oriental Insurance Company Limited, respondent No. 3. On 08.11.1997 due to rash and negligent driving of the aforesaid jeep by driver Dev Nandan @ Devan Thakur, appellant No. 2, the deceased Khalasi fell down on the road, sustained serious injuries and later on su ccumbed to injuries. The parents of the deceased, who are respondents No. 1 and 2, filed claim case for grant of compensation to the tune of Rs. 1,93,500/- with 20% interest per annum till realisation. Owner and driver of the vehicle, who are appellants and Insurance Company, who is respondent No. 3 appeared in the case and filed separate written statements. The case was referred to Lok Adalat for settlement but parties could not arrive at any decision and the case was sent back to Tribunal again where appellants did not appear whereas Insurance Company, respondent No. 3 contested the case. The case was decided against appellants without contest and was dismissed on contest against respondent No. 3 which was given liberty to realise the amount which it had paid to the claimants under no fault liability from the appellants. Being aggrieved by the judgment and award of Court below, the appellants have preferred this appeal. 3. The case was decided against appellants without contest and was dismissed on contest against respondent No. 3 which was given liberty to realise the amount which it had paid to the claimants under no fault liability from the appellants. Being aggrieved by the judgment and award of Court below, the appellants have preferred this appeal. 3. The learned counsel appearing on behalf of the appellants has argued that there was talk of compromise between claimants and Insurance Company and the Motor Vehicles Accidents Claims Tribunal (In short Tribunal) referred the case to Lok Adalat but there no compromise could be arrived at on the stand that the insurance of vehicle was for private use of the vehicle but at the time of accident vehicle was being used as commercial vehicle and there was violation of terms and conditions of insurance policy, therefore, Insurance Company was not liable for payment of any compensation to the claimants. Lok Adalat again sent back the case to the Tribunal but no notice to appellants was served by the Tribunal and the case proceeded against appellants ex parte and was finally decided against them without any contest. The learned counsel for the appellants has further argued that when there was talk of compromise between claimants and Insurance Company and the case was sent to Lok Adalat, the appellants thought that the matter would be settled in Lok Adalat between claimants and Insurance Company and, therefore, they did not appear before Lok Adalat, and when the case was returned back to Tribunal, no notice to appellants was given and the case was decided in absence of appellants without contest. The learned counsel appearing on behalf of the respondents-claimants argues that the appellants had initially appeared and on 17.01.2000, they filed written statement and the case was adjourned to 16.02.2000 for appearance of Insurance Company because by that time, the Insurance Company had not appeared. He further submits that after appearance of Insurance Company, the case was fixed for hearing on the submission of Insurance Company that it has already paid a sum of Rs. 50,000/- to claimants and date for hearing was fixed as 05.08.2000 but on 19.08.2000 on the petition of claimants, the case was sent to Lok Adalat fixing next date as 25.08.2000. 50,000/- to claimants and date for hearing was fixed as 05.08.2000 but on 19.08.2000 on the petition of claimants, the case was sent to Lok Adalat fixing next date as 25.08.2000. He further says that because no compromise could be arrived at in Lok Adalat, therefore, the case was again sent back to Tribunal and, thereafter, on 30.05.2001 when the Tribunal found that appellants and Insurance Company were absent, it passed order that it adjourned the case for 19.06.2001 giving last opportunity to appellants and respondent No. 3 for taking steps with an observation that in case they did not take any step, the case would be heard ex parte and, thereafter, on 19.06.2001 only respondent No. 3 appeared but appellants did not appear and the Tribunal, thereafter, hearing the case, passed the judgment and award which are under challenge in this appeal. 4. The submissions about the developments in the case from appearance of appellants, their filing written statement, sending the case by Tribunal to Lok Adalat, return of case from Lok Adalat to Tribunal and thereafter, non-appearance of appellants in this case are fully supported by the record of the Tribunal which has been called for end which has been received. The learned counsel for the claimants-respondents has argued that there was no talk on compromise between claimants and appellants and, therefore, there was no occasion for them for not appearing before Lok Adalat when the case was sent to Lok Adalat by Tribunal. The record of lower Court shows that on 24.06.2000, attendance on behalf of claimants and appellant No. 1 was filed and no step was taken by respondent No. 3. On this day, the Tribunal observing that a sum of Rs. 50,000/- had been paid by Insurance Company to claimants but it was not clear that in connection with which case this amount was paid to claimants and directed the claimants to remain present on 26.07.2000 for hearing and also transferred the case to the Court of 1st Additional District Judge where it was received on 27.06.2000 and was or dered to be put up on a fixed date. The record further shows that instead of 26.06.2000, the record was received in the Court of 1st Additional District Judge on 27.07.2000 on which date, all parties were absent. On 19.08.2000 at the prayer of claimants-respondents, the case was transferred to Lok Adalat. The record further shows that instead of 26.06.2000, the record was received in the Court of 1st Additional District Judge on 27.07.2000 on which date, all parties were absent. On 19.08.2000 at the prayer of claimants-respondents, the case was transferred to Lok Adalat. There is nothing on the record to show that the case was transferred to Lok Adalat on the ground that there was talk of compromise between claimants-respondents and Insurance Company, respondent No. 3. So, the argument of learned counsel for the appellants that when the case was transferred to Lok Adalat, the appellants thought that the matter would be finally settled between claimants-respondents and Insurance Company, respondent No. 3 does not appear convincing. Besides this, the record shows that before the transfer of case to Lok Adalat, the appellants had left taking steps in the case because, as stated above, on 27.07.2000, no step on their behalf was taken and position remained the same thereafter also and the case was transferred to Lok Adalat on 19.08.2000. In this view of the matter, there was no question of sending any notice to appellants when the case was received back from Lok Adalat to Tribunal when appellants had already ap peared and filed their written statement. 5. Admittedly, the claim case was decreed without contest against the appellants. Instead of making prayer before the Court below for setting aside the judgments which is, admittedly, an ex parte order under relevant provisions of Civil Procedure Code, the appellants have preferred this appeal, which itself, is not maintainable. Notwithstanding this fact as the appellants, after appearing and filing written statement in the claim case themselves left taking steps in the case before the case was transferred to Lok Adalat they now cannot take the plea that when the case was sent back from Lok Adalat to Tribunal, notice should have been sent to them for this. 6. I, therefore, find no merit in this appeal which is, accordingly, dismissed.