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2017 DIGILAW 1630 (PNJ)

Inderpal Singh v. Balwinder Kaur

2017-07-28

REKHA MITTAL

body2017
JUDGMENT Mrs. Rekha Mittal, J.:- The present appeal directs challenge against order dated 8.2.2012 passed by the District Judge, Amritsar whereby application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure(in short “CPC”) for setting aside award dated 10.1.2011 pas sed by the Motor Accidents Claims Tribunal, Amritsar (hereinafter to be referred to as “the Tribunal”) has been dismissed. 2. Counsel for the appellants has submitted that Balw inder Kaur and others filed an application under Section 163-A of the Motor Vehicles Act, 1988 (in short “the Act”) for grant of compens ation on account of death of Gian Singh son of Piara Singh due to use of bus No. PB-08-AB-9971 driven by Jasbir Singh respondent No. 5. Initially , Wazir Singh Proprietor/Managing Director/Partner of M/s Chohla Transport Company Limited City Center, Amritsar was impleaded as respondent No. 2 being owner of the aforesaid bus. Later, an amendment w as made in the application impleading Manjit Singh son of Bachan Singh, predecessor- in-interest of the appellants as a respondent being owner of the bus in question. Since Manjit Singh passed away in March 2010, the appellants being sons of Manjit Singh were impleaded as his le gal representatives (in short “Lrs”). It is further submitted that the appellants were proceeded against ex parte vide order dated 8.9.2010 by invoking Order 5 Rule 19-A CPC but the said provision already stood deleted from the statute in the year 2002. It is vehemently argued that as Rule 19 -A was no longer in existence in the year 2010, the Tribunal committed a serious error rather illegality by invoking the said rule in order to p ass an adverse order against the appellants. It is further argued that the awar d was passed on 10.1.2011 and the appellants gained knowledge of the award i n April 2011 and filed the application under Order 9 Rule 3 CPC well with in the period of 30 days from the date of knowledge, but the same was wrongly dismissed by the Court below. It is further argued that while d eciding issue No. 2 pertaining to the question of limitation, the court has not adverted to plea of the appellants that they gained knowledge of the award just few days before filing of the application, therefore, the application is within limitation. 3. It is further argued that while d eciding issue No. 2 pertaining to the question of limitation, the court has not adverted to plea of the appellants that they gained knowledge of the award just few days before filing of the application, therefore, the application is within limitation. 3. Counsel representing the claimants/respondents has supported the impugned order with the submission that as the award in question was not published in any newspaper, there was no occasion for the informant of the appellants to know about the award and thereafter to pass on necessary information to the appellants. It is further submitted that the appellants were well aware of passing of the award much prior to filing of the application, therefore, the Court below has rightly dismissed their application being barred by limitation. However, h e has fairly conceded that Rule 19-A of Order 5 CPC was not in vogue in the year 2010, therefore, the Court below could not invoke that rule for passing an order of deemed service upon the appellants. 4. I have heard counsel for the parties, perused the p aper book particularly the order impugned. 5. Indisputably, the appellants were not served through personal service and they were proceeded against exparte by taking cognizance of the fact that notice sent through registered cover was not received back despite expiry of period of 30 days, therefore, the y are deemed to be served under Order 5 Rule 19-A CPC. It is conceded position of the case that in the year 2010, Rule 19-A of Order 5 CPC was no longer in existence on the statute as the said rule was deleted by way of amendment in 2002. In this view of the matter, I have no hesitation to h old that the learned Tribunal committed a serious error rather illegality by invoking Order 5 Rule 19-A CPC in order to proceed ex parte against the appellants. That being so, order passed by the Tribunal initiating exparte proceedings against the appellants cannot be allowed to sustain and liable to be set aside. 6. This brings the Court to the question of limitation in filing the application for setting aside the ex parte award. The award was passed on 10.1.2011 and the application was filed on 30.4.201 1. That being so, order passed by the Tribunal initiating exparte proceedings against the appellants cannot be allowed to sustain and liable to be set aside. 6. This brings the Court to the question of limitation in filing the application for setting aside the ex parte award. The award was passed on 10.1.2011 and the application was filed on 30.4.201 1. As per plea of the appellant, they came to know about passing of the award on 24.4.2011 from one Sukha at the time of their visit to the Golden Temple at Amritsar. Perusal of the findings recorded by the Court below on issue No. 2 would reveal that the Court has not addressed the question of knowledge of the appellants and has decided the said issue on the premise that the application is barred by limitation as the same has been filed beyond a period of 30 days from the date of passing of the award. Under these circumstances, findings recorded by the court on issue No. 2 are liable to be set aside and ordered accordingly. 7. Though the matter needs to be remitted to the court below for deciding the question of limitation afresh but counsel for the respondents/claimants would state that in place of remitting the matter for decision of the application under order 9 Rule 13 C PC afresh, the matter may be remitted to the Tribunal for deciding the application under Section 163-A of the Act afresh after providing an opportunity to the appellants to contest the proceedings but some time bound directions may be issued for disposal of the case as the claimants are sufferers due to delay in decision. 8. For the foregoing reasons, appeal is allowed, order dated 8.2.2012 dismissing application under Order 9 Rule 13 CPC is set aside. As a consequence, order dated 8.9.2010 proceeding ex p arte against the appellants and award dated 10.1.2011 passed by the Tribunal qua respondent Nos. 7 and 8 therein (appellants) are or dered to be set aside and the matter is remitted to the Tribunal for adjudication of the case only qua liability of respondent Nos. 7 and 8 afresh. The Tribunal is directed to conduct the proceedings on day to day basis and dispose of the matter within a period of three months from the parties putting in appearance. 7 and 8 afresh. The Tribunal is directed to conduct the proceedings on day to day basis and dispose of the matter within a period of three months from the parties putting in appearance. The parties through their counsel are directed to appear before the Motor Accidents Claims Tribunal, Amritsar on 18.8.2017.