Executive Engineer,Aasthai ... vs Ram Kali & 5 Others
2021 Latest Caselaw 11436 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Court No. - 19
 

 
Case :- FIRST APPEAL FROM ORDER No. - 901 of 2016
 

 
Appellant :- Executive Engineer,Aasthai Yantrik Khand (Temporary Mechanic
 
Respondent :- Ram Kali & 5 Others
 
Counsel for Appellant :- Standing Counsel
 
Counsel for Respondent :- Rajesh Trivedi
 

 
Hon'ble Salil Kumar Rai,J.

Heard counsel for the appellant and Shri Rajesh Trivedi representing the claimants-opposite party nos. 1 to 6.

The present First Appeal From Order has been filed by the defendant under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, ''Act') against the award dated 25.2.2013 passed by the Motor Accident Claims Tribunal, Lucknow in Motor Accident Claim Petition No. 431 of 2012 Ram Kali versus Executive Engineer (Aasthai Yantrik Khand (Temporary Mechanical Division), Lok Nirman Vibhag, District Agra).

The facts of the case are that respondent/opposite party nos. 1 to 6 filed a Claim Petition under Section 163-A of the Act alleging that Ram Asrey died in an accident caused due to rash and negligent driving of the vehicle (Registration No. U.P 80A 9846) by its driver. The defendant-appellant is the owner of the offending vehicle. The driver of the vehicle was not impleaded as a defendant in the claim petition. A First Information Report regarding the aforesaid incident was also filed and Case Crime No.124/2012 under Section 279/304-A I.P.C was registered against the driver of the vehicle.

The respondent/opposite party no. 1 is the wife of the deceased Ram Asrey while the respondent/opposite party nos. 2 to 6 are the sons of the deceased Ram Asrey.  In their claim petition, the respondent/opposite parties claimed a compensation of Rs.10,66,000.00 alleging that the deceased was earning Rs.3000/- per month at the time of his death.

The Tribunal issued summons to the defendant-appellant on 4.9.2012 by registered post with acknowledgment due but the acknowledgments were not received by the Court by 10.10.2012 and therefore, the Tribunal declared that the summons had been duly served on the appellant/defendant. The defendant-appellant did not put in appearance in the case and no written statement was filed by it till 22.10.2012. Consequently, by order dated 22.10.2012, the Tribunal passed an order to proceed ex parte against the appellant-defendant.

In the claim-petition, the opposite party no. 1 appeared as plaintiff-witness no.1 to prove her case regarding the accident. The Postmortem Report, the First Information Report registering Case Crime No.124 of 2012, the spot inspection report prepared by the Police during investigation and the charge sheet submitted by the Police against the driver of the offending vehicle were also filed as evidence to prove the case of the claimant. The Tribunal, after considering the evidence on record, held that as the claim-petition was filed under Section 163-A of the Act, therefore, the negligence of the driver in causing the accident was not required to be proved and the claimants-opposite parties were entitled to compensation from the defendant-appellant as it was proved from the oral and documentary evidence on record that Ram Asrey had died due to an accident arising out of the use of the offending vehicle. The Tribunal determined the compensation on minimum wages payable to a daily wage labour, i.e., Rs.3000/- per month and after holding that the age of the deceased at the time of his death was between 35 to 40 years, applied a multiplier of 16 to determine the total compensation payable to the claimants-opposite parties. The Tribunal by its award dated 25.2.2013 determined the compensation payable to the claimants-opposite parties as Rs.3,93,500.00 with six percent simple interest from the date of filing the claim petition.

It was argued by the counsel for the appellant that the award dated 25.2.2013 has been passed without serving notice to the appellant and without giving any opportunity of hearing to the appellant. It was argued by the counsel for the appellant that the claim-petition was not maintainable because the driver of the offending vehicle had not been impleaded as a defendant in the said case.  It was argued that for the aforesaid reasons, the impugned award passed by the Tribunal is liable to be set aside.

Rebutting the argument of the counsel for the appellant, the counsel for the claimants-opposite parties has argued that notices had been issued to the appellant by registered post and the appellant deliberately avoided to appear before the Tribunal and therefore, vide its order dated 22.10.2012, the Tribunal proceeded to hear the case ex parte against the appellant.  It was argued that in the circumstances of the case, the appellant had been given an opportunity  to represent his case before the Tribunal which they failed to avail of and no illegality has been committed by the Tribunal  in proceeding ex parte against the appellant. It was further argued that the claim-petition was filed under Section 163-A of the Act and the award has also been computed on the structured formula basis in accordance with Schedule-II of the Act, therefore, the negligence of the owner or the driver of the offending vehicle was not required to be proved by the claimants-opposite parties and thus, the driver of the offending vehicle was not a necessary party in the claim petition. It was argued that for the aforesaid reasons, the appeal has no  merit and is liable to be dismissed. In support of his contention, the counsel for the claimants-opposite parties has relied on the judgment of the Supreme Court reported in Shivaji and Another versus Divisional Manager, United India Insurance Co.Ltd. and others 2018(3) T.A.C. 673(S.C.) and the judgment of Gauhati High Court reported in New India Insurance Co.Ltd., versus Lalawmpuia (Minor) and others 2010(4) T.A.C. 500 (Gau.).

I have considered the submissions of the counsel for the parties and also perused the records.

The procedure to be followed by the Tribunal in a claim-petition filed under Sections 163-A and 166 has been prescribed in Chapter IX of the U.P Motor Vehicles Rules, 1998.

Rule 207 of the Rules 1998 provides that the Claims Tribunal  shall send to the owner of the Motor Vehicle involved in the accident and its insurer,  a notice of the date on which it will hear the application.  Rule 208 of the Rules 1998 provides that the owner of the Motor Vehicle and the insurer,  may at or before the first hearing or within such further time as the claims Tribunal may allow,  file a written statement dealing with the claim  raised in the application.  Rule 208(3) of the Rules, 1998 provides that the date of first hearing for filing written statement under sub rule (1) shall not be  more than one month from the date of issuance of notices to the owner/driver and insurer of the Motor Vehicle and no further time, more than one month shall be given for that. Rule 221 of the Rules 1998 provides that Rules 9 to 13 and 15 to 30 of Code of Civil Procedure, 1908 (hereinafter referred to as, ''C.P.C.') shall, so far as may be, apply to proceedings before the claims Tribunal.

Order V Rule 9(3) of C.P.C. provides that amongst other modes, summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due addressed to the defendant or his agent empowered to accept the service of summons. Order V Rule 9(5) of C.P.C provides that where summons issued by the Court are properly addressed, pre-paid and duly sent by registered post acknowledgement due, then the Court issuing the summons shall declare that the summons had been duly served on the defendant notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within 30 days from the date of issue of summons. Order V Rule 9 of C.P.C is reproduced below:-

"Rule 9 Order V of Code of Civil Procedure 1908 "Delivery or transmission of summons for service"

9. Delivery of summons by Court.- (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.

(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him in such manner as the Court may direct.

(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.

(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply.

(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).

It is not the case of the appellant that notice/summons in the case issued to the appellant were not properly  addressed and were not duly sent by registered post with acknowledgment due.   The records of the case indicate and the said fact has also been been recorded in the award of the Tribunal that summons were issued by registered post to the appellant.  The summons were issued on 4.9.2012.  The acknowledgment was not received by the Tribunal till 10.10.2012 i.e., after 30 days from the date of issue of the summons. In the circumstances, by virtue of Order V Rule 9 (5) - Proviso, the Tribunal had, rightly, by its order dated 10.10.2012 declared that the summons had been duly served on the defendant. In view of the aforesaid, it shall be deemed that the appellant had been served summons/notice in the case. The appellant did not appear before the Tribunal and did not file any written statement  contesting the claim petition. Therefore, the Tribunal vide its order dated 22.10.2012 directed that the proceedings be heard ex-parte against the appellant-defendant. For the aforesaid reasons, the contention of the defendant-appellant that no opportunity of hearing was given to the defendant and no notice  was served on him is unfounded and is rejected.

So far as the arguments of the counsel for the appellant that the claim-petition was not maintainable because the driver of the offending vehicle had not been impleaded as a defendant in the case, is concerned, the same for reasons stated presently is also without substance.

A reading of the grounds raised in the memo of appeal shows that the appellant has not disputed the fact that Ram Asrey died in an accident arising out of the use of the offending Vehicle and has filed the appeal contesting only the allegations made in the claim petition regarding the negligence of the driver of the offending vehicle in causing the accident.  It is also not the case of the appellant that he is not the owner of the vehicle. The claim petition  was filed and was registered under Section 163-A of the Act in which the claimant is not required either to plead or establish any wrongful act, or neglect or default of the owner of the Vehicle or of any other person. Section 163-A of the Act, is reproduced below:-

"163 A. Special provisions as to payment of compensation on structured formula basis.--

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.--For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule".

The Supreme Court in Machindranath Kernath Kasar versus D.S.Mylarappa and others (2008) 13 SCC 198 which was regarding a case regarding a claim petition filed under Section 166 of the Act (in which the negligence of the driver of the vehicle has to be pleaded and established by the claimants) held that the driver may not be  a necessary party in the claim proceedings in the sense that in his absence, the entire proceedings shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint tortfeasor. The observations of the Supreme Court in Paragraph -30 of the said reports is reproduced below-

"30. It is, however, of some interest to note the provisions of Section 168 of the Motor Vehicles Act. In terms of this aforementioned provision, the Tribunal is mandatorily required to specify the amount which shall be paid by the owner or driver of the vehicle involved in the accident or by or any of them. As it is imperative on the part of the Tribunal to specify the amount payable inter alia by the driver of the vehicle, a fortiori he should be impleaded as a party in the proceeding. He may not, however, be a necessary party in the sense that in his absence, the entire proceeding shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint tortfeasor."

As noted earlier in cases filed under Section 166 of the Act, the claimants have to plead and establish the negligence of the driver in causing the accident. The role of a driver in any claim proceedings under the Act is to contest the allegations of negligence made against him as also the allegation that the accident was caused by use of the vehicle driven by him. As noted earlier, the allegation of the claimants and the findings of the Tribunal that the accident happened due to use of the vehicle owned by the appellant is not challenged in the present appeal. A driver is sufficiently represented in proceedings under Section 166 even if he appears as a witness to deny and contest the allegations of negligence made against him (Machindranath Kernath Kasar (Supra) and Uma Kant Tewari versus Jai Prakash Srivastava and others. (2019) 5 ADJ 640. If that is the situation under Section 166, then obviously in proceedings under Section 163-A, where the claimants are not required to plead or establish any wrongful act, doing or negligence on the part of either the owner or the driver of the vehicle, the driver of the offending vehicle is not a necessary party and proceedings shall not be vitiated because the driver was not impleaded in the claim petition if the owner of the vehicle had been impleaded as a party.   It was  observed by the Supreme Court in United India Insurance Company Ltd. versus Sunil Kumar and another (2019) 12 SCC 398. Paragraph 8 & 9 are reproduced below:-

"8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time-frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.

9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act, it is not open for the Insurer to raise any defence of negligence on the part of the victim."

The aforesaid judgment was also referred and followed by the Supreme Court in Shivaji and another (Supra).

As the negligence of the driver of the offending vehicle is not to be pleaded or proved in proceedings under Section 163-A of the Act and under Section 163-A, the liability to pay compensation is of the owner and the Insurance Company, the proceedings under Section 163-A of the Act, 1988 will not be vitiated merely because the driver of the Vehicle was not impleaded as a party in the claim case.

For the aforesaid reasons, the appeal lacks merit and is dismissed. Interim order, if any, passed in favour of the appellant, is vacated.

Order Date :- 6.12.2021

IB