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2015 DIGILAW 324 (JK)

Sara v. Ali Mohammad Bhat

2015-07-07

HASNAIN MASSODI

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JUDGMENT : Hasnain Massodi, J. 1. Civil First Miscellaneous Appeal on hand is directed against ex-parte award dated 26th April 2010, rendered by Motor Accident Claims Tribunal (MACT), Srinagar in a claim petition titled Ali Mohd. Bhat & Ors. v. Abid Rashid Malla & another, whereby the Tribunal has directed appellant to pay an amount of Rs. 6.47 lacs as compensation with interest at the rate of 6% per annum from the date of filing of claim petition till its final realization on account of death of Mohammad Ashraf Bhat S/o Respondent No. 1 and 2, husband of respondent No. 3 and father of Respondent No. 4 to 6. Challenge is also to Motor Accident Claims Tribunal order dated 1st June 2011, whereby the application for setting aside ex-parte award has been dismissed. The appeal arises in the following background. The appellant Abid Rashid Malla on 7th November 2009, while driving Maruti Car bearing No. JK051889, hit a horse cart (raida) at Barsoo, Ganderbal. Shri Mohammad Ashraf Bhat, owner of the horse cart was critically injured in the accident and latter on 7th May 2002, succumbed to his injuries at Sher-i-Kashmir Institute of Medical Science (SKIMS), Soura, Srinagar. 2. Sometime after the respondents were free from the last rites of the deceased, they approached Motor Accident Claims Tribunal, Srinagar with claim petition under Section 166, Motor Vehicles Act. The claim petition was registered as M.A. Claim No. 107/2002. The claimants alleged that the offending vehicle was being driven rashly and negligently by the appellant at the time of the accident. They claimed an amount of Rs. 250000/- as compensation on various counts from the appellant. The Appellant No. 2 (now deceased) was impleaded as respondent No. 2 to the claim petition. It was pleaded that the Appellant No. 2 father of appellant No. 1 was the owner of the offending vehicle. 3. The claim petition was opposed by the appellants on the ground that appellant No. 1 was declared as juvenile by the competent court and that the claim petition was not maintainable. It was disputed that Appellant No. 2 was the owner of the vehicle. 3. The claim petition was opposed by the appellants on the ground that appellant No. 1 was declared as juvenile by the competent court and that the claim petition was not maintainable. It was disputed that Appellant No. 2 was the owner of the vehicle. The Appellant No. 2 claiming to be a police officer insisted that he did not have good relation with Station House Officer, PS Khirbawani, who falsely implicated his son-appellant No. 1 in case FIR No. 44/01; that the case was awaiting disposal before Chief Judicial Magistrate, Srinagar. The appellants denied that they were under any statutory obligation to pay the compensation to the respondents. 4. The Tribunal on going through the pleading settled following issues for determination:- "i) Whether on 07-11-2001, Abid Rashid Mall respondent No. 1 was plying Maruti Car No. JK05 1889 rashly and negligently as a result of which at Barsoo, Ganderbal it hit Mohd Ashraf Bhat, who was pushing his horse cart up on the slope received fatal injuries and later on succumbed to the same on 07-05-2002 in SKIMS? OPP. ii) Whether respondent No. 1 being a child and respondent No. 2 not the owner of the offending vehicle, the petition is not maintainable and is liable to be dismissed? OPR-1 and 2. iii) Whether respondent No. 1 has been falsely implicated by SHO Khirbawani who is animus towards him? If yes, what is its effects on the merits of the petition? OPR iv) In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? OPP v) Relief." The respondents adduced evidence to discharge the onus of proving issues, burden whereof was placed on them. The witnesses were cross examined by the counsel from the opposite side. However, the appellants did not adduced any evidence in rebuttal and did not contest the claim petition from 5-5-2008 onwards. 5. The Tribunal on going through the evidence and taking notice of Case FIR No. 44/01, registered in connection with occurrence at Police Station Kherbhawani held that the appellant No. 1 on the date of occurrence while driving Maruti Car rashly and negligently hit the horse cart (raida) pulled by the deceased resulting in serious injuries to the deceased that led to his death at Sheri-i-Kashmir Institute of Medical Science (SKIMS), Soura, Srinagar. The Tribunal did not find any merit in the stand taken by the respondents in reply to the claim petition that appellant No. 1 was juvenile at the time of accident and that the vehicle was not owned by the appellant No. 2. The Tribunal accordingly answered issues 1 to 3 and assessed Rs. 6.47 lacs as compensation on account of pecuniary and non-pecuniary loss suffered by the respondents on account of untimely and tragic death of their only source of sustenance. 6. The appellants sometime after ex-parte award was rendered approached the Tribunal with an application for setting aside ex-parte award. The absence from the proceedings before the MACT, Srinagar and failure to contest the claim petition with effect from 5-5-2008 was explained on the ground that appellant No. 2 is Type 2 Diabetic patient and could not attend the court because of his indisposition. The Tribunal did not find any merit in the application and dismissed the application on 1st June 2011. 7. The award dated 26th April 2010 and order dated 1st June 2011, are questioned in the present appeal on the grounds that the claim petition was entertained and award rendered against a minor and impugned award and order therefore are a nullity. It is pleaded that appellant No. 2 was not the owner of the vehicle and respondents failed to lead any evidence before the Tribunal to prove that the appellant No. 2 as owner was responsible to pay compensation to respondents. The Tribunal is said to have failed to appreciate this aspect of the case though expressly pleaded in their objections to the claim petition. It is next urged that the death could not be connected with the alleged accident as it admittedly occurred six months after the accident and therefore the appellants could not be fastened with the liability to pay compensation to the dependents of the deceased. The Tribunal according to appellants, while rejecting the application ignored cogent and convincing material submitted in support of the application for setting aside ex-parte award. The ex-parte award dated 26th April 2010. as well as order dated 1st June 2011, according to appellants deserve to be set aside on the grounds urged in the appeal. 8. Heard and considered. 9. The Tribunal according to appellants, while rejecting the application ignored cogent and convincing material submitted in support of the application for setting aside ex-parte award. The ex-parte award dated 26th April 2010. as well as order dated 1st June 2011, according to appellants deserve to be set aside on the grounds urged in the appeal. 8. Heard and considered. 9. The main ground urged in the appeal as regards juvenility of the appellant No. 1 on the date of filing of the claim petition sounds attractive but is of no help to the appellant. The juvenility of the driver of the offending vehicle responsible for a vehicular accident due to his rash and negligent driving cannot be absolve, the owner of the vehicle or the person having control over the vehicle has statutory obligation to pay compensation to victim of the accident. The insurance company with which the vehicle is insured similarly cannot escape from its statutory obligation to pay compensation to the dependents of the deceased. The insurer however may escape the duty to pay compensation pleading that the owner of the vehicle by handing over vehicle to a minor had violated essential conditions of the insurance policy and was not entitled to be indemnified by the insurer. The liability of the owner of the vehicle would nonetheless remain unchanged. The owner would be duty bound to pay compensation to the victim of the accident, where he is found to have handed over the vehicle to the minor or allowed to be plied by the minor. The argument advanced by the learned counsel for the appellants that as appellant No. 1 was a minor, appellant No. 2 can be asked to pay compensation to the victim is specious and better to be ignored. 10. This takes us to another aspect of the case. A question may be raised as to whether Tribunal in case a claim petition is filed against the minor would be under an obligation to appoint guardian ad litem for the minor respondents. I am of the view that whenever a claim petition is filed against the minor on the ground that minor was driving the offending vehicle at the time of accident and an effort to fasten the liability on the minor, it would be necessary for the Tribunal to appoint guardian ad litem to represent the minor and defend the cause. I am of the view that whenever a claim petition is filed against the minor on the ground that minor was driving the offending vehicle at the time of accident and an effort to fasten the liability on the minor, it would be necessary for the Tribunal to appoint guardian ad litem to represent the minor and defend the cause. In the present case, had the respondents filed claim petition against the appellant No. 1 only, the appellant No. 1 could have been possibly heard saying that award and proceedings before the MACT, Srinagar were a nullity and award liable be set aside. However, in the present case, the respondents have taken pains to array appellant No. 2 as respondent in the claim petition. Appellant No. 2 is none other than father of appellant No. 1. In the circumstances, even if Tribunal failed to appoint guardian ad litem for appellant No. 1 yet his natural guardian was before the Tribunal to defend the appellant No. 1 and protect his interests. 11. The purpose of appointing guardian ad litem is to ensure that the minor otherwise incompetent to defend the claim petition, has assistance of someone available who does not have conflict of interest with the minor. The father of the minor ordinarily is the first choice for appointment as guardian ad litem of the minor. In the present case, appellant No. 1's interest was not prejudiced because of failure on the part of the Tribunal to appoint guardian ad litem for him. 12. The Tribunal while assessing compensation has scrupulously adhered to settled legal principles. The Tribunal has taken age of deceased as 30 years at the time of death and his monthly income as Rs. 4500/- per month. It has deducted one third of the income on account of personal expenses. The Tribunal has thereafter applied multiplier of 17 and worked out loss of income as 6.12 lacs. To the loss of income so assessed has been added Rs. 10,000/- on account of loss of consortium, Rs. 20,000/- on account of loss of love and affection and Rs. 5000/- on account of funeral expenses. The total amount worked out is Rs. 6.47 lacs. To the loss of income so assessed has been added Rs. 10,000/- on account of loss of consortium, Rs. 20,000/- on account of loss of love and affection and Rs. 5000/- on account of funeral expenses. The total amount worked out is Rs. 6.47 lacs. The Tribunal has awarded interest at the rate of 6% from the date of filing of the claim petition till its realization and the rate of interest to increase to 9% in the event, the compensation is not deposited within two months from the date of award. 13. The compensation assessed by the Tribunal cannot be labeled as excessive or on higher side. The Tribunal on the other hand has been conservative while assessing non-pecuniary loss and lost site of the fact that the deceased has left behind a young lady of 28 years of age as his widow, two daughters and a minor son. The compensation on account of loss of love and affection and even funeral expenses ought to have been more than assessed by the Tribunal. 14. The order dated 1st June 2011, whereby application for setting aside ex-parte award has been dismissed is in tune with settled legal principles. The ex-parte judgment and order cannot be set aside on mere asking of the party who fails to attend the court and contest the suit application or claim petition. Such a party is required to plead and substantiate that he/she was prevented by sufficient cause from attending the court/Tribunal. In the present case, the appellants after contesting the claim petition for about six years absented themselves from the proceedings with effect from 5.5.2008. They avoided to contest the claim petition and rebut the evidence adduced by the respondents till the claim petition was allowed and ex-parte award rendered on 26-04-2010. 15. The appellants even after award was rendered did not bother to enquire about the fate of the claim petition. It is only after a notice was issued to the appellants that they woke up and approached the Tribunal with an application for setting aside ex-parte award. The application was filed little less than one year after the award was rendered. The failure to contest the claim petition and to file an application for setting aside ex-parte award was explained on the ground that the appellant No. 2 was unwell and hospitalized. The application was filed little less than one year after the award was rendered. The failure to contest the claim petition and to file an application for setting aside ex-parte award was explained on the ground that the appellant No. 2 was unwell and hospitalized. The Medical Certificate referred to the year 2011 and not the period of absence from Tribunal. The case set up was rightly rejected by the Tribunal as explanation tendered was on the face of it not convincing. 16. For the reasons discussed, ex-parte award dated 26th April 2010 and order dated 1st June 2011, cannot be faulted on any of the grounds urged in the appeal. Resultantly the appeal is dismissed. Record be send down. The award amount if any, deposited with the Registry be paid to the respondents in accordance with the ex-parte award along with the interest that has accrued on the amount deposited.