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2008 DIGILAW 580 (ORI)

REBATI DEI v. INDU DHAWAN

2008-07-24

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
JUDGMENT : B.S. Chauhan, C.J. - All these four appeals have been filed against the Judgment/Order Dated 17.11.2005 passed by the Learned Single Judge in OJC Nos. 6823 & 6944 of 1999 directing the 2nd. Motor Accident Claims Tribunal, Cuttack (hereinafter referred to as the 'Tribunal') to proceed with the execution to satisfy the award dated 18.05.1993 passed by it only against Shri Sunil Kumar Dhawan. 2. The facts and circumstances of the case giving rise to the above appeals are that an accident took place on 8.4.1987 and two claim petitions were filed before the Tribunal, one by Bhanupriya Nayak @ Khuntia, the widow of the deceased and another by the mother and an unmarried handicapped sister of the deceased, who was only 21 years of age at the time of accident against Smt. Indu Dhawan, registered owner of the vehicle involved in the accident. 3. The Tribunal while considering Misc. Case Nos. 622 of 1987 & 103 of 1988 vide its Order Dated 18.05.1993 held that there was liability of Smt. Indu Dhawan, the registered owner of the offending vehicle, to the tune of Rs. 2.20 lakhs as compensation with 6% interest per annum from the date of the application, i.e., 17.11.1987, out of which some amount was directed to be apportioned among the said three claimants as given in the award. 4. The award was made ex parte as the owner after entered appearance did not contest the case. It appears that she filed a Title Suit No. 272/87 against her ex-husband for maintenance and a compromise decree was passed therein for maintenance. It was also provided therein that the offending vehicle would be transferred to her husband, Shri Sunil Kumar Dhawan and he would be responsible for compensation etc. in the said claim petitions. Shri Sunil Dhawan also appeared before the Tribunal but did not contest the case. Smt. Indu Dhawan filed the applications to recall the ex parte award but the Tribunal rejected the said applications vide Order Dated 3.2.1999. 5. Being aggrieved, Smt. Indu Dhawan, filed OJC Nos. 6823 and 6944 of 1999, which were disposed of by the Learned Single Judge on 17.11.2005. Smt. Indu Dhawan filed the applications to recall the ex parte award but the Tribunal rejected the said applications vide Order Dated 3.2.1999. 5. Being aggrieved, Smt. Indu Dhawan, filed OJC Nos. 6823 and 6944 of 1999, which were disposed of by the Learned Single Judge on 17.11.2005. The direction of the Learned Single Judge is as follows: Before parting, however, I observe that in view of the decree passed in T.S. No. 272 of 1987, the ownership of the offending truck had been transferred by the Petitioner in favour of her husband. The decree further stipulates that the Petitioner wife was not to claim any right, title or interest over the offending vehicle and her husband would bear any amount pending in respect of the said vehicle and shall remain liable for any civil and criminal cases pending in respect of thereof. The said decree is binding on all the parties to the suit. The husband who is Opposite Party No. 4 in these two Writ applications cannot wriggle out of the stipulations made in the decree. The notices issued in the Writ Petitions have been duly received by the husband of the Petitioner but he neither appeared nor did repudiate the averments made in the Appeal Memorandum. In the aforesaid circumstances this Court feels that in consonance with the decree passed in T.S. No. 272 of 1967 by the Court of the Subordinate Judge, Cuttack it would be just and proper to direct the Tribunal to initiate appropriate proceeding for realization of the entire compensation amount from the husband of the Petitioner instead of the latter. The certificate proceeding initiated against the wife is thus not maintainable and is quashed. 6. Two appeals have been filed by the claimants and two appeals on behalf of Sunil Dhawan (husband of Smt. Indu Dhawan) being W.A. Nos. 62 and 63 of 2006 against the aforesaid Order Dated 17.11.2005 passed by the Learned Single Judge. 7. There has been some delay in filing the above two appeals for which he has filed two separate applications for condonation of delay in filing the appeals. In the facts and circumstances of the case, as all the appeals are to be heard on merit, we condone the delay in filing both the appeals by Shri Sunil Kumar Dhawan only. With the consent of Counsel all the four appeals are being herd on merit. 8. In the facts and circumstances of the case, as all the appeals are to be heard on merit, we condone the delay in filing both the appeals by Shri Sunil Kumar Dhawan only. With the consent of Counsel all the four appeals are being herd on merit. 8. This case has a chequered history and has been decided in a manner which is totally unwarranted, uncalled for and unknown to law. On the one hand, the claimants filed claim petitions before the Tribunal claiming compensation and during pendency of such claim petitions it appears that, the wife, the registered owner of the offending vehicle at the time of accident, filed a suit for maintenance against her ex-husband as they had separated long back. 9. Learned Civil Judge (Senior Division), Cuttack, who had a very limited jurisdiction to entertain the application to determine the quantum of maintenance, proceeded to determine the liability of the compensation to be paid to the victims by the registered owner of the offending vehicle and also settled other issues. 10. Now Learned Counsel for the husband & wife (Respondents) are not in a position to submit as to under what circumstances a Civil Court while deciding the application for maintenance having limited jurisdiction in this regard could adjudicate upon the rights and entitlements of the claimants which was subject matter before the MACT pending in respect of the accident occurred on 8.4.1987. At the time of accident the wife was the registered owner. 11. At this juncture question remains to be decided whether this Court can exercise its suo motu revisional jurisdiction to set aside the order passed by the Civil Judge (Senior Division) which is admittedly beyond the jurisdiction. At this stage, Learned Counsel appearing for the wife-Respondent gave the consent and agreed to make payment of the decretal amount with interest to the claimants within a period of three months. 12.. In view of the consent and offer given by the Learned Counsel for the wife-Respondent, we are not inclined to enter into the legal issues seriously involved in this case. We, therefore, dispose of all the appeals and the petitions filed therein by issuing the following directions: (i) Smt. Indu Dhawan shall deposit the decretal amount with interest accrued thereon within a period of three months from today before the 2nd. We, therefore, dispose of all the appeals and the petitions filed therein by issuing the following directions: (i) Smt. Indu Dhawan shall deposit the decretal amount with interest accrued thereon within a period of three months from today before the 2nd. Motor Accident Claims Tribunal, Cuttack; (ii) Claimants shall be entitled to withdraw the amount. In case, the same is deposited prior to the expiry of the stipulated period of three months, Learned Tribunal is requested to issue notice to the claimants and, the claimants shall approach the Tribunal for withdrawal of the same; (iii) The Tribunal is requested to make the payment of the decretal amount along with accrued interest to each of the claimants as apportioned by it earlier on proper identification of the claimants; (iv) In case Smt. Indu Dhawan fails to deposit the decretal amount, we direct the Tribunal to recover the same from her in accordance with law and make payment to the claimants immediately thereafter. 13. In view of the above, all the four appeals stand disposed of. The judgment and order of the Learned Single Judge, which is impugned in this case, is modified to the aforesaid extent. Needless to say that Smt. Indu Dhawan is at liberty to file a suit for recovery of the decretal amount from the husband-Respondent, if she is so advised. B.N. Mahapatra, J. 14. I agree. 15. Appeal disposed of.