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2014 DIGILAW 272 (JHR)

Shivdhar Pandey v. Rajmuni Devi

2014-02-19

D.N.UPADHYAY

body2014
Order This miscellaneous appeal has been preferred against the order dated 8.8.2006 passed by learned Motor Accident Claims Tribunal, Hazaribagh in connection with Misc. Case No. 4A of 1993, whereby the petition filed by the appellant under Order 9 Rule 13 of the C.P.C. was rejected and the learned Tribunal has refused to set aside the judgment dated 31.8.1992 passed in connection with Claim Case No. 59 of 1988 on contest. 2. The fact in brief is that respondents No. 1 to 8 had filed Claim Case No. 59 of 1988 for grant of compensation in lieu of death of Mukhdeo Ram who died in a road accident which occurred on 22.9.1987 within the District of Hazaribagh. In connection with said road accident Chouparan P.S. Case No. 114 dated 22.9.1987 u/s 297/ 337/ 304(A) of the I.P.C. was registered. The registration No. of offending vehicle was BPI-8921. In the said claim application, notices were served against the opposite parties including the appellant and accordingly they appeared. The appellant and his brother Madan Pandey were the registered owner of offending vehicle No. BPI-8921 and they appeared jointly by filing Vakalatnama. One of the owners of offending vehicle Madan Pandey had filed show cause in the capacity of owner of the vehicle. The learned Tribunal after framing issues on the pleadings proceeded further, recorded evidence, admitted documents and passed judgment and award on contest on 31.8.1992 and the owners of the vehicle including the appellant were fastened with the liability to pay the compensation amount to the claimants. 3. On 19.5.1993, the appellant filed a petition before the learned Tribunal under Order 9 Rule 13 praying therein to set aside the impugned judgment and award as it was ex parte according to him. On the basis of petition filed, Misc. Case No. 4A of 1993 was registered and after giving opportunities to the parties, the said Misc. Case No. 4A of 1993 was dismissed on 8.8.2006 and hence this appeal. 4. It is contended that some disputes arose between two brothers i.e. Madan Pandey and the appellant Shivdhar Pandey and that was the reason the case of the appellant was not properly pleaded before the Tribunal. Many important points were left and no proper evidence was adduced. Case No. 4A of 1993 was dismissed on 8.8.2006 and hence this appeal. 4. It is contended that some disputes arose between two brothers i.e. Madan Pandey and the appellant Shivdhar Pandey and that was the reason the case of the appellant was not properly pleaded before the Tribunal. Many important points were left and no proper evidence was adduced. The delay also occurred in fling the petition under Order 9 Rule 13 because the wife of the appellant was lying seriously ill and he was busy in her treatment. The appellant had very good case because the vehicle at the relevant point of time was insured and the policy was not under challenge. As per the recent judgments, the passengers who were traveling on the roof of the bus, if met with any accident and sustained injuries or died due to the injury sustained, the insurance company will have to pay the compensation amount. Because of the cogent ground, the appellant was unable to place all the material before the Tribunal and impugned judgment and award was passed without affording opportunity to him to bring all material on record. It is further submitted that the learned Tribunal should have considered the grounds taken by the appellant and should have set aside the impugned judgment and award passed in absence of the appellant. It is further pointed out that equity demands that the appellant should have been given opportunity to contest the claim case. 5. On the other hand, counsel appearing for the respondents vehemently opposed the arguments and submitted that the impugned judgment and award was not an ex parte judgment, rather it was passed on contest. The appellant had appeared jointly with his brother since both of them were registered owners of the offending vehicle. It is not necessary that each and every partner shall sign the W.S. One of the registered owner of the vehicle had filed show cause and he was all along contesting the claim case. After passing of the judgment, another registered owner cannot say that the judgment and award passed was ex parte and therefore, the same is liable to be set aside. 6. I have gone through the impugned order and the material placed before me. After passing of the judgment, another registered owner cannot say that the judgment and award passed was ex parte and therefore, the same is liable to be set aside. 6. I have gone through the impugned order and the material placed before me. It is not disputed that the appellant and Madan Pandey were registered owners of the offending vehicle No. BPI-8921 and they jointly appeared before the Tribunal and filed show cause signed by one of the registered owner, Madan Pandey. The learned Tribunal has elaborately discussed all the points and after granting hearing to the parties and also after giving them opportunity to adduce evidence, impugned judgment and award was passed. The judgment and award was not ex parte nor it was a judgment under Order 8 Rule 10 of the C.P.C. So far as the equity is concerned, the principle shall be applicable for both parties. Here in the instant case the claimants are running from post to pillar since the year 1988 for getting compensation against death of their relative Mukhdeo Ram who died in a road accident which occurred on 22.9.1987. No party shall be given opportunity to linger the matter by extending untenable excuses or taking advantage of technicality of law. In the result, I do not find any merit in this appeal and accordingly, the same stands dismissed. Appeal dismissed.