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2013 DIGILAW 672 (RAJ)

Lal Chand v. Pooran Mal

2013-04-04

ALOK SHARMA

body2013
JUDGMENT 1. - This civil miscellaneous appeal has been filed against the order dated 2-6-2008, passed by Judge, Motor Accident Claims Tribunal, Tonk (hereinafter 'the Tribunal'), whereby an application filed by the appellant-Non-claimant (hereinafter 'the non-claimant') under Order 9 Rule 13 C.P.C. for setting aside the ex-parte award dated 1-11-2004 in MACT case No. 495/2002 has been dismissed. 2. The facts of the case are that in respect of an accident on 1-4-1985 involving tractor trolly RRG 8345, driven by the non-claimant in which the respondent claimant Pooran Mal (hereinafter 'the claimant') alleged to have sustained injury, a claim Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter 'the Act of 1988') came to be filed on 8-7-2002 after a delay of over 17 years. In the said claim petition notices, inter alia also by registered post, appear to have been issued to the non-claimants in the petition i.e. owner and driver of tractor trolly RRG 8345. When owner and driver failed to appear inspite of purported service ex-parte proceedings were taken against them. Thereupon vide award dated 1-11-2004 an award for a sum of Rs. 1 lac along with interest at the rate of 6% per annum thereon was passed against the owner of tractor trolly RRG 8345 one Darshan Kumar Jain and the driver thereof-the non-claimant, the appellant in the present appeal. 3. It appears that following the award dated 1-11-2004 in the course of recovery proceeding in pursuance thereof notices were issued to the appellant herein, being a judgment debtor. Thereupon an application was filed before the Tribunal by the non-claimant on 24-9-2005 for obtaining certified copy of the award dated 1-11-2004. The certified copy of the award dated 1-11-2004 was obtained on 26-9-2005. A challenge to the award aforesaid was then laid by the non-claimant Lal Chand in S.B. Civil Writ Petition No. 8033/2005 before this court. The recovery notice dated 18-8-2005 issued by the Sub Divisional Officer Shahpura in pursuance of the award dated 1-11-2004 for the amount of Rs. 1,16,550/- compensation awarded (with interest) by the Tribunal under its award dated 1-11-2004was also challenged. The recovery notice dated 18-8-2005 issued by the Sub Divisional Officer Shahpura in pursuance of the award dated 1-11-2004 for the amount of Rs. 1,16,550/- compensation awarded (with interest) by the Tribunal under its award dated 1-11-2004was also challenged. However on the matter coming up before this court on 29-9-2005, the learned Single Judge held for good reason that the petition was not maintainable but directed that in the interest of justice that the award dated 1-11-2004 would not be executed as against the non-claimant for a period of four weeks from the date of the order during which time the non-claimant would be at liberty to approach the appropriate forum for challenging the award dated 1-11-2004. 4. In terms of the liberty granted by this court under its order dated 29-9-2005, the appellant moved an application under Order 9 Rule 13 CPC before the Tribunal for setting aside the ex-parte award dated 1-11-2004 detailing the facts of non-service of notices of the claim petition before the Tribunal and praying for condonation of delay. The learned Tribunal however held that the application under Order 9 Rule 13 CPC has been filed beyond 30 days subsequent to the award dated 1-11-2004 without adequate explanation. Consequently the application was dismissed on 2-6-2008 solely on the ground of limitation. 5. Aggrieved of the order dated 2-6-2008 dismissing the application under Order 9 Rule 13 CPC against the ex-parte award dated 1-11-2004, this miscellaneous appeal has been filed. 6. Heard learned counsel for the non-claimant and the learned counsel for the claimant and perused the impugned order dated 2-6-2008 and the material available on record of the civil miscellaneous appeal. 7. From the facts on record it is apparent that the claim petition under Section 166 of the Act of 1988 was filed on 8-7-2002 in respect of an accident alleged to have taken place on 1-4-1985, wherein the respondent claimant stated to have sustained injury resulting from the rash and negligent driving of the tractor trolly RRG 8345 in the ownership of one Darshan Kumar Jain, and driven by the non-claimant. It is not in dispute that the claim petition was filed after about 17 years of the accident. The ex-parte award was passed against the non-claimant as also the owner of the tractor trolly RRG 8345 on 1-11-2004 executable jointly and severally against them both. 8. It is not in dispute that the claim petition was filed after about 17 years of the accident. The ex-parte award was passed against the non-claimant as also the owner of the tractor trolly RRG 8345 on 1-11-2004 executable jointly and severally against them both. 8. In my considered opinion, this court under its order dated 29-9-2005 in S.B. Civil Writ Petition No. 8033/2005 having allowed the non-claimant to avail the remedy before the appropriate forum against the ex-parte award dated 1-11-2004 within four weeks, the learned Tribunal ought to have taken a more liberal view of the delay in filing the application under Order 9 Rule 13 CPC and proceeded to consider the same on merits, rather than to dismiss it on the ground of limitation. Aside of this fact, it is the specific case of the non-claimant that knowledge of the ex-parte award dated 1-11-2004 was available to him only on or about 24-9-2005 when the said ex-parte award was sought to be executed under demand notice dated 18-8-2005 issued by the Sub Divisional Officer Shahpura. Thereupon he had taken steps to obtain a certified copy of the award. Subsequently on legal advise as preferred, the non-claimant had laid S.B. Civil Writ Petition No. 8033/2005 with reasonable explanation before this Court. The said writ petition was dismissed as not maintainable on 29-9-2005. The time spent by the non-claimant in prosecuting writ petition No. 8033/2005 ought to have been excluded from the consideration by the Tribunal while addressing the question of delay in filing application under Order 9 Rule 13 CPC on reasons analogous to Section 14 of the Limitation Act. Further the Hon'ble Supreme Court in case of Collector, Land Acquisition Anantnag v. Mst. Katiji, AIR 1987 SC 1353 has reiterated the principle that the court should ordinarily adopt a liberal approach in condoning the delay in taking remedies in law except where the delay is unconscionable or the explanation for the delay is mired in falsehood. 9. From the facts on record, it is apparent that there was no unconscionable delay attributable to the non-claimant in moving an application under Order 9 Rule 13 CPC against the award dated 1-11-2004. 9. From the facts on record, it is apparent that there was no unconscionable delay attributable to the non-claimant in moving an application under Order 9 Rule 13 CPC against the award dated 1-11-2004. The appellant on coming to know about the ex-parte award dated 1-11-2004 on or about 24-9-2005 and obtaining copy thereof on 26-9-2005 approached this court by way of a writ petition, ill advised as it may have been. This court vide order dated 29-9-2005 even while dismissing the petition on the obvious ground of availability of an alternative efficacious remedy had taken into consideration the facts of the case and even protected the non-claimant against the execution of the ex-parte award dated 1-11-2004 for four weeks granting liberty to take remedy available in accordance with law against the award in issue. The non-claimant appellant thereafter with expedition approached the Tribunal within thirty days on the writ court's order of 29-9-2005 on 28-10-2005 by way of an application under Order 9 Rule 13 CPC accompanied with an application under Section 5 of the Limitation Act. 10. In my considered opinion, the learned Tribunal ought to have taken into consideration the steps taken by the non-claimant in seeking to challenge the ex-parte award dated 1-11-2004. The delay in challenging the ex-parte award dated 1-11-2004 can by no stretch of imaginationin the facts of the casebe held to be unconscionable or indicative of the non-claimant's desire to abandon his remedies or game the judicial process to deny to the claimant his right in law without anything more. More importantly the learned Tribunal ought to have taken into consideration rankling of injustice in the mind of the non-claimant qua an ex-parte award dated 1-11-2004 passed on a claim petition filed after about 17 years of the date of accident. 11. Consequently, I would allow this civil miscellaneous appeal and quash and set aside the order dated 2-6-2008 passed by the Tribunal and remand the matter to the Tribunal for an address on the application under Order 9 Rule 13 CPC against the ex-parte award dated 1-11-2004 strictly on merits in accordance with law. 11. Consequently, I would allow this civil miscellaneous appeal and quash and set aside the order dated 2-6-2008 passed by the Tribunal and remand the matter to the Tribunal for an address on the application under Order 9 Rule 13 CPC against the ex-parte award dated 1-11-2004 strictly on merits in accordance with law. It is directed that in the event the application under 9 Rule 13 CPC were to be allowed on merits and ex-parte award dated 1-11-2004 set aside, keeping in view the fact that matter relates to an accident of 1-4-1985, in respect of which the claim petition was filed in the year 2002 the claim petition be disposed of expeditiously and in any event not later than eight months from today.Appeal allowed. *******