Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 85 (UTT)

Sadhna Sharma v. Suresh Chand

2022-04-13

SHARAD KUMAR SHARMA

body2022
JUDGMENT : Sharad Kumar Sharma, J. The appellant in the present Appeal from Orders, which has been preferred under Section 173 of the Motor Vehicles Act, 1988, is a claimant in Motor Accident Claim Petition No. 159 of 2017, Sadhna Sharma Vs. Suresh Chand. The Claim Petition thus preferred by the claimant/appellant, before the Motor Accident Claim Tribunal, has been rejected by the impugned judgement and award dated 31st January, 2018, and hence, the present Appeal from Order. 2. The factual backdrops of the case are, that according to the Claim Petition, preferred by the claimant/appellant before the Motor Accident Claim Tribunal, by instituting the same on 19th July, 2017, she has submitted, in the Claim Petition, that the owner of the vehicle car, i e. opposite party No. 1, herein, Suresh Chand, he was a registered owner of the Car which was bearing registration No. UK-07-TA-9195, which is alleged to have been driven by the driver of the vehicle rashly and negligently, resulting in causing of an accident on 8th June, 2016, due to which, according to the factual backdrop developed in the Claim Petition itself, it was accordingly contended in Clause-10 of the Claim Petition, which is extracted hereunder:- ^^10- fnukad 08-06-2016 dks ?kk;y Jherh lk/kuk 'kekZ tc ?kkV jksM cktkj ls vEcsMdj pkSd gksrs gq, okil vius ?kj iSny vk jgh Fkh rks le; yxHkx 07-45 cts lk;a LFkku jsyos jksM] Nk;k Vkdht] ds lkeus] foi{kh la0 1 dkj dks vR;f/kd rsth o ykijokgh ls pykdj vEcsMdj pkSd dh rjQ ls vk;k vkSj ?kkV jksM dh rjQ ls vk jgs vkWVks esa rsth ls VDdj ekjh] nq?kZVuk ds le; izkfFkZ;k@DysesUV~l Jherh lk/kuk 'kekZ] tks fd lM+d fdukjs viuh cka;h lkbZM ls tk jgh Fkh] foi{kh la0 1 )kjk vkWVks esa VDdj ekjus ls vkWVks izkfFkZ;k@DysesUV~l ds mij xhj x;k] ftlls izkfFkZ;k@DysesUV~l vkWVks ds uhps nc xbZ rFkk bl nq?kZVuk esa vkbZ pksVksa ds dkj.k] iSVh'kuj cqjh rjg ls ?kk;y gqbZA** 3. That the car belonging to respondent No.1, when the driver has lost his control over it, it has dashed against the auto rickshaw and an admitted case of the claimant in the Claim Petition is, that as a result of an accident of 8th January, 2016, the auto rickshaw, against which, the car dashed, that has fallen on the claimant, who was walking on the left side of the road, and it was on account of that, that she having fell down and the auto rickshaw fell over her, she has suffered injuries. 4. The Claim Petition was preceded by the Motor Accident Claim Tribunal, by issuing notices to the respondents to the Claim Petition, and as per the array of the parties of the Claim Petition itself, it was exclusively the owner of the car, who was chosen to be made as an opposite party to the proceedings. But, if the set of narration of facts given in para 10 of the Claim Petition is taken into consideration, in fact, it could be tentatively said (reasons to follow), that the actual vehicle, which was instrumental in causing injuries to the claimant, was the auto rickshaw, but for the reason best known to the claimant, neither the owner, nor the driver of the auto rickshaw, were made as a party to the Claim Petition filed on 19.07.2017, though the fact of the accident, being caused and the injuries being suffered, was on account of the collusion of the auto rickshaw, which fell over the claimant, resulting in injuries, are the fact admitted, and established by records. 5. In view of the pleading raised in para 10 of the Claim Petition, one fact is very apparent, that the cause of injuries as pleaded by the claimant was due to falling of auto rickshaw on her. 5. In view of the pleading raised in para 10 of the Claim Petition, one fact is very apparent, that the cause of injuries as pleaded by the claimant was due to falling of auto rickshaw on her. It was never the case of the claimant, before the Court below, that the accident was caused by the opposite party to the Claim Petition, i.e. the owner of the vehicle, which was being driven by him, and in that eventuality, this Court is of the view, that the logical inference, which could be drawn from the pleading and evidence is, that the claimant was conscious of the fact about the involvement of the auto rickshaw, in the accident and the injuries having been caused, because of the accident caused by the auto rickshaw, and that consciousness of the pleading itself required that the auto rickshaw’s owner or the driver of the auto rickshaw, ought to have been impleaded, as an opposite party to the claim proceedings instituted under Section 166 of the Motor Vehicles Act, but the appellant for the reason known to her has chosen not to implead the owner of the auto rickshaw, as a party respondent to the proceedings. 6. On the receipt of the notices, the opposite party No. 1, i.e. the owner of the car, Mr. Suresh Chand had filed his written statement, i.e. paper No. 27-B, and while denying the claim averments, a specific pleading was raised by the claimant in the written statement in its para 14, that in fact, the cause of the accident is not the car, belonging to him but rather the auto rickshaw or its driver, which was the cause of the injuries, which were caused to the claimant and since they have not been made as a party, the Claim Petition suffers from the vices of non joinder of necessary party. 7. The written statement which was filed by the opposite party on 10th November, 2017. 7. The written statement which was filed by the opposite party on 10th November, 2017. The learned Motor Accident Claim Tribunal, on the basis of the pleadings raised by the parties, vide its order of 10th November, 2017, had framed the following issues: ^^1- D;k fnukad 08-06-2016 dks le; yxHkx 07%45 cts lka; LFkku jsyos jksM+] Nk;k Vkfdt ds lkeus _f"kds'k esa okgu dkj la0 ;w0ds0&07Vh,&9195 ds pkyd us mDr dkj dks rsth o ykijokgh ls pykdj ?kkV jksM+ dh rjQ ls vk jgs vkWVks esa VDdj ekjh ftlls mDr vkWVks lM+d ds fdukjs py jgh ;kph lk/kuk 'kekZ ds mij fxj x;k] ftlls ;kph mDr vkWVks ds fups nc xbZ vkSj mDr nq?kZVuk esa vk;h pksVksa ds dkj.k cqjh rjg ?kk;y gks x;h \ 2- D;k ;kfpdk vko';kd i{kdkj ds vla;kstu ls nwf"kr gS \ 3- D;k ;kph okafNr vuqrks"k ikus dh vf/kdjh gS] ;fn gka rks fdl i{kdkj ls \** 8. Even at the stage, when the issues were framed on 10th November, 2017, apart from the fact, that there was a specific plea of the effect of non joinder of the necessary party in the written statement, when the issues itself were framed on 10th November, 2017, the consciousness of the vices, which the Claim Petition suffered from, due to non joinder of the necessary party was very well made conscious and brought to the knowledge of the claimant, as non impleadment of the auto rickshaw, who was admittedly pleaded to be instrumental in causing injuries to the claimant, as per the pleadings raised in para 10 of the Claim Petition, it was even on that occasion, which has arisen to the claimant, firstly on 17.07.2017, secondly on 10th November, 2017, when the written statement was filed and thirdly, when the issues were framed on the same date itself, but still, not invoking to the steps to file an appropriate application for impleading the owner and driver of the auto rickshaw, as a party respondent and still proceeding to participate in the claim proceedings of the Claim Petition, as it was standing on the date of framing of the issues. This Court is of the view, that the appellant at the appellant stage, cannot derive the benefit of the effect for his own follies or inaction for not getting an appropriate party impleaded in the Claim Petition, which would have a direct bearing on the fixation of liability of compensation, which if at all, the claimant was entitled to receive as a consequence of the injuries suffered by her due to an accident of 8th June, 2016. 9. The attributability for the purposes of shifting the burden to meet out the liability of compensation, whether it was to be catered by the owner of the auto rickshaw or by the owner of the vehicle, i.e. opposite party, could have been effectively decided by the Motor Accident Claim Tribunal, had the appellant chosen to implead the auto rickshaw, after being made conscious of the fact that the Claim Petition suffered from the vices of the non joinder of necessary party. Since having submitted to the two stages of the proceedings and having participated to address Court, on the merits of the claim and inviting the Motor Accident Claim Tribunal, to render an award on 31st January, 2018, at this belated appellate stage under Section 173 of the Motor Vehicle Act, the appellant cannot take the advantage of he own inaction, because once the appellant had stepped to address the Court on the merits of the Claim Petition, in the form, in which, it was existing before the Court, it would amount to that she was conscious, and she had voluntarily ventured to address the Court on merits and later on, after being unsuccessful in the proceedings, he cannot derive a benefit due to his own lack of exercise of diligence in participating in the proceedings. 10. The learned counsel for the appellant, had rather herself very candidly attempted to shift upon the burden of the effect of non joinder of the necessary party as to be an onus, which was supposed to be discharged by the Court in the light of the provisions contained under Order 1 Rule 10 (2) of the CPC, on which, reliance has been placed by the learned counsel for the appellant. The provision of Order 1 Rule 10 (2) is extracted hereunder:- “(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.” 11. If a simplicitor language of the provisions of Order 1 Rule 10 (2) of the CPC, is taken into consideration, though the wisdom was to be exercised by the Appellate Court, to ensure the impleadment of the necessary parties to the proceedings, in the absence of whom, the proceedings could not be effectively decided, but as already observed above, nothing precluded the appellant to implead the auto rickshaw’s owner or the driver of the auto rickshaw, in order to facilitate and assist the Court to effectively arrive at a rightful conclusion, as to whom, the burden of compensation has to be shifted upon. 12. Since the appellant even after framing of the issues on 10th November, 2017, had chosen to address the Court on merits at the appellate stage, this Court is of the view that the defect in the award cannot be pointed out, because of any inaction or lack of diligence by the Court in impleading the necessary parties by invoking the powers under Sub-rule (2) of Rule 10 of Order 1 of the CPC. 13. 13. There is another reason for not to accept the argument of the learned counsel for the appellant because if the provisions contained under Order 1 Rule 10 (2) of the CPC is read in its entirety, in fact, it uses the word ‘may’, which means it is not a mandate, which has been casted on the Court, that invariably in all the cases, irrespective of the pleadings raised by the parties, it was the Court, who has to decide and choose, as to who would be an appropriate party to the proceedings, which would be contrary to the principles of dominus litus, in fact, the Court is not supposed to act as a dominus litus to choose, its opponents for deciding a lis, because choosing of an opponent is always within an exclusive domain of the litigant, who approaches the Court for the redressal of his grievances or for seeking a relief. 14. Thus, this Court is of the view, that when sufficient time has lapsed after filing of the written statement, the consciousness and sensitivity were parted to the claimant and it was rather the claimant, who was supposed to have made the necessary party in the Claim Petition, so that it might have been effectively decided. Having not done so, she cannot reap the fruits of her own apparent error and that too when the admitted case of the claimant in para 10 of the Claim Petition is, that the accident was caused by the auto rickshaw. Hence, this question argued by the learned counsel for the appellant is answered against him. Because it is not an error of the Court, but rather it is an error of the claimant, who was supposed to choose his opponent in order to arrive at a plausible conclusion, as to from whom, the relief claimed was to be granted. Hence, at this appellate stage, this plea is not available to be argued by the learned counsel for the appellant. 15. Hence, at this appellate stage, this plea is not available to be argued by the learned counsel for the appellant. 15. It has been further argued by the learned counsel for the appellant, that in such type of an eventuality, where a specific issue is framed, based on the pleadings about the effect of non joinder of the necessary party, it was rather an onus casted upon the Court, yet again to frame an issue and decide it as preliminary issue and hence, the judgement suffers from an error from that perspective too because the effect of non impleadment of the necessary party, was not decided as a preliminary issue, in view of the provisions contained under Order 14 Rule 2 of the CPC, which is extracted hereunder :- “[2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to— (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]” 16. This Court is of the view, yet again that it is always the choice of the party to the proceedings, to determine and press that out of the total issues, which are framed after the exchange of the pleadings, determining the point of controversy between the parties, and if the party is of a considered view, that the proceedings could be decided by inviting findings on a preliminary issue, it would always be the responsibility to the litigating party to request the Court by filing an appropriate application to frame a preliminary issue and to get it decided before the Court ventures into to decide the matter on its own merits, but the appellant himself has not chosen to do so by filing any application despite of having been made conscious of the effect of non impleadment of the necessary party by the issues framed on 10th November 2017. 17. There is another reason for not to accept this argument of the learned counsel for the appellant, about the effect of non deciding of the issue of non joinder of necessary parties, as a preliminary issue, this Court is of the view that in the light of the judgement rendered by the Hon’ble Apex Court as reported in (2017) 4 SCC 654 , A. Kanthamani Vs. Nasreen Ahmed, the Hon’ble Apex Court has laid down that the responsibility of getting a preliminary issue decided, which has an effect or direct bearing on the maintainability of the suit itself, it is always the prerogative of the plaintiff or the person opposing the sustainability of the claim to have raised it before the Trial Court itself, and this inaction on the part of the claimant before the Court below, with regard to the effect of non framing of issues, to be decided as a preliminary issue cannot be permitted to be raised for the first time at an appellate proceeding and hence, the effect of plea of non framing of the issue of non joinder of the necessary party and getting it decided as a preliminary issue under Order 14 Rule 2 of the CPC in the light of the judgement A. Kanthamani (Supra), cannot be for the first time addressed before the Appellate Court. 18. 18. Reverting back to the observations, which have been made by the Motor Accident Claim Tribunal, particularly, those as contained under para 16 onwards, while deciding issue No.1, which is not an issue disputed about the circumstances under which the accident has chanced and which even stands substantiated by the pleadings of the Claim Petition itself. 19. This Court is of the view, that the entire Claim Petition, would have been foundationed on an effective adjudication only after putting contest, to be put in by the parties while deciding issue No. 2, which could have enabled the Court to arrive at a plausible and rationale conclusion as to whom the compensation has to be burdened upon and for the purposes to arrive at a conclusion as to which of the two vehicles were actually responsible for causing injuries to the claimant, and thus, in the absence of there being any concrete effort being made by the claimant in the light of the provisions contained under Order 1 Rule 10 (2); to be read with Order 14 Rule 2 of the CPC, the appellant at this stage, cannot for the first time, agitate the cause to derive a benefit of her own inaction. 20. Hence, I do not find any perversity or illegality in the judgement rendered by the learned Motor Accident Claim Tribunal on 31st January, 2018. Accordingly the Appeal from Order fails and the same is dismissed.