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2009 DIGILAW 98 (ALL)

U P S R T C LUCKNOW v. DEEPKALI

2009-01-13

DEVI PRASAD SINGH, SHISHIR KUMAR

body2009
DEVI PRASAD SINGH AND SHISHIR KUMAR, J. Heard Sri Prabhakar Tiwari, learned Counsel for the appellants and Sri Rajesh Pandey, learned Counsel for the respondent. 2. Instant appeal under section 173 of the Motor Vehicles Act, 1988 has been preferred against the impugned award dated 18. 8. 2003 passed by the Motor Accident Claims Tribunal/iind Additional District Judge, Faizabad in Claim Petition No. 228 of 2001 (Smt. Deepkali v. U. P. S. R. T. C. ). 3. The brief facts giving rise to the present appeal are that on 13. 2. 1993 at about 11. 30 p. m. an accident took place near Sidhauli, Police Station Ataria, District Sitapur. The respondents husband late Sri Jagdish Singh was travel ling in a Roadways Bus No. U. P.-53-B/4998. On account of rash and negligent driving of the bus, the accident took place with a truck resulting in serious in juries caused to the deceased. On account of serious injuries, the deceased suc cumbed at later stage. In the said accident, the co-driver and five other persons died. After death of the deceased, the claimant approached the Motor Accident Claims Tribunal with a petition preferring claim for Rs. 11, 63, 000/-before the Tribunal. The learned Tribunal awarded compensation to the tune of Rs. 1, 49, 500/- separately apart from other expenses. Feeling aggrieved with the impugned award the appellants approached to this Court preferring the instant appeal. 4. According to the learned Counsel for the appellants, the claimant had earlier filed a petition in the Motor Accident Claims Tribunal, Lucknow, which was registered as Case No. 54 of 1993. The petition filed at Lucknow was dis missed in default and the Court concerned did not restore the same. Thereafter, the claimant filed another petition at Faizabad in the Court concerned. While filing the petition at Faizabad, the claimant took the defence that since the claim petition filed at Lucknow was dismissed in default without adjudicating the controversy on merit. It was very well maintainable. While assailing the impugned award, Sri Prabhakar Tiwari, learned Counsel appearing for the appellants tried to assail the impugned award with the averment that the claimant had concealed the material fact with regard to the petition filed at Lucknow. Filing of another petition is barred by the principle of constructive res judicata. It was very well maintainable. While assailing the impugned award, Sri Prabhakar Tiwari, learned Counsel appearing for the appellants tried to assail the impugned award with the averment that the claimant had concealed the material fact with regard to the petition filed at Lucknow. Filing of another petition is barred by the principle of constructive res judicata. It has also been submitted by the learned Counsel for the appellants that the compensation awarded by the Tribunal is excessive and is not sustainable. 5. On the other hand, learned Counsel for the respondent submits that since the petition filed at Lucknow was dismissed in default, the Tribunal at Faizabad had very well acted in jurisdiction while adjudicating the contro versy on merit. Learned Counsel for the respondent has relied upon the judgment of Honble Supreme Court in Ram Gobinda Daiv and others v. Smt. H. Bhakta Bala Dassi, AIR 1971sc 664. 6. We have considered the argument advanced by the learned Counsel for the parties at length and perused the record. 7. A perusal of the impugned award reveals that it is not a case where the claimant has concealed the material fact with regard to dismissal of the petition filed at Lucknow, rather the claimant has disclosed the fact with re gard to dismissal of the petition at Lucknow in default and stated before the Tribunal that since the petition filed at Lucknow was dismissed in default without adjudicating the controversy on merit. In the case of Ram Gobinda Daw (supra), the Honble Supreme Court held that in case a suit is dismissed in de fault or for want of prosecution, it shall not operate as res judicata in subsequent suit. The relevant portion from the judgment of Ram Gobinda Daw (supra) is re produced as under: "24. In Sheodan Singh v. Smt. Daryao Kunwar, (1966) 3 SCR 300 =air 1996 SC 1332 the question whether a decision given by the High Court dismissing certain appeal on the ground of limitation or on the ground that the party had not taken steps to prosecute the appeal operates as res judicata, was considered by this Court. In that case A had instituted against B two suits asserting, title to a certain prop erty. In that case A had instituted against B two suits asserting, title to a certain prop erty. B contested those claims and also instituted two other suits to estab lish his title to the same property as against A. As suits were decreed and Bs suits were dismissed. B filed four appeals, two appeals against the de cision given in As suits and two appeals against the dismissal of his two suits. It is seen that all the appeals were taken on the file of the High Court but the two appeals filed by B against the decision in the suits insti tuted by him were dismissed by the High Court on the grounds that one was filed beyond the period of limitation and the other for non-prosecution. At the final hearing the High Court took the view that the dismissal of Bs two appeals, referred to above, operated as res judicata in the two appeals filed by B against the decision in As suits on the question of title to the property. It was urged before this Court on behalf of B that the dismissal of his appeals on the grounds of limitation and non-prosecution by the High Court does not operate as res judicata as the High Court cannot be consid ered to have heard and finally decided the question of title. This con tention was not accepted. This Court referred to instances where a former suit was dismissed by a Trial Court for want of jurisdiction or for default of plaintiffs appearance etc. and pointed out that in respect of such class of cases, the decision not being on merits, would not be res judicata in a subse quent suit. It was further pointed out that none of those considerations ap ply to a case where a decision is given on the merits by the Trial Court and the matter is taken in appeal and the appeal is dismissed on some prelimi nary ground, like limitation or default in printing. It was held that such dismissal by an Appellate Court has the effect of confirming the decision of the Trial Court on merits, and that it amounts to the appeal being heard and finally decided on the merits whatever may be the ground, for dis missal of the appeal. 25. It was held that such dismissal by an Appellate Court has the effect of confirming the decision of the Trial Court on merits, and that it amounts to the appeal being heard and finally decided on the merits whatever may be the ground, for dis missal of the appeal. 25. It will be seen from the above reasoning that in order to operate as res judicata, the previous decision must have been given after the matter was heard and finally decided on merits. This Court has further held that the High Court, in that case, when it dismissed the two appeals in ques tion, though on a preliminary ground of limitation or default in printing must be considered to have heard and finally decided on merits. For from supporting Mr. Mukherjees contention that a decision given in default of appearance under any circumstance, operates as res judicata, the above de cision lays down clearly that a previous decision to operate as res judicata must be one in a case heard and finally decided on merits. " 8. Applying the principle of Ram Gobinda Daw (supra), since earlier the claim petition filed by the claimant was dismissed in default without adjudi cating the controversy on merit, the petition filed at Faizabad seems to be maintainable. The finding recorded by the learned Tribunal does not seems to suffer from any impropriety or illegality. 9. So far as the submission of the appellants Counsel that amount of com pensation is excessive and unreasonable that does not seem to be sustainable. The Tribunal had assessed the annual income to the minimum i. e. , at the rate of 15, 000/- per year, which neither seems to be excessive nor unreasonable. 10. Accordingly, in view of above, the impugned award passed by the learned Tribunal does not suffer from any impropriety or illegality. The appeal is devoid of merit, as such, it is dismissed. No order as to costs. F. A. F. O. Dismissed. .