Ujagar Singh vs Kumari Seema & Ors.
2017 Latest Caselaw 4099 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Decided on: 11th August, 2017
+     MAC.APP. 232/2008 and CM 5176/2008
      UJAGAR SINGH                                  ..... Appellant
                          Through: Mr. Sushil Kumar Pandey, Adv.

                          versus

      KUMARI SEEMA & ORS.                           ..... Respondents
                  Through: None

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                    JUDGMENT (ORAL)

1. The appellant on whom the liability to pay the compensation in favour of the first to third respondents has been fastened by judgment dated 17.12.2007 of the Motor Accident Claims Tribunal in Miscellaneous no.05/04, is in appeal seeking to assail the finding thereby returned holding him responsible for driving the offending vehicle in a negligent manner causing the fatal accident.

2. Bhola Nath, aged 45 years, working for gain as a hawker, died as a result of injuries suffered when after alighting from a four seater, he was walking on foot at about 11.15 p.m. on 13.04.1984, upon being hit by a motor vehicle described as a car bearing registration no.DBC 8349, registered in the name of the fourth respondent. The members of his family, dependent on him, they being first to third respondents

(collectively, the claimants), instituted accident claim case on 01.05.1985, registered as suit no.202/85 under Sections 110-A and 92A of the Motor Vehicles Act, 1939, seeking compensation. In the said claim case, the appellant herein was impleaded as the first respondent on the averments that he was the driver of the car on the relevant date and time and that it was on account of his negligent driving that the accident had occurred resulting in the death. The fourth respondent herein was impleaded as the second respondent in the said claim case in addition to Oriental Fire and General Insurance Company Ltd., shown in the array of parties before the tribunal as the third respondent on the averments that the car was insured against third party risk with the said company.

3. The tribunal's record would show that notice issued to the appellant was returned with report of refusal upon tender. The Tribunal proceeded against him ex parte. In the course of the inquiry that was held, evidence was led by the claimants relying on eye witness account of two persons, they being Som Nath (PW-3) and Pratap Chand (PW-4), both of whom were statedly with the deceased at the relevant point of time, all of them reaching the said place having travelled together in the four seater vehicle taken from Chandni Chowk area. PW-3 in his depositions named the appellant as the driver of the car in question at the relevant time. The inquiry resulted in judgment dated 20.05.1994 upholding the claimants case of death having been caused due to negligent driving of the car by the appellant fastening the liability to pay compensation determined in the sum of Rs.1,80,000/- jointly and severally on him and on the fourth

respondents exonerating the insurance company on the basis of finding that the cover note relied upon was not valid or effective for the date of the accident.

4. It may be noted here that the appellant had also been arrested in the corresponding criminal case, arising out of first information report no.113/84 of PS Gandhi Nagar under Sections 279 / 304 A of Indian Penal Code, 1860 (IPC). It appears that the report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.PC) submitted on conclusion of investigation into the said FIR was registered by the court of the Metropolitan Magistrate as criminal case no.77/2002 in which trial was held against the appellant on the accusations of he having committed the said offences under Sections 279 / 304 A IPC. The prosecution in that case had relied on two eye witnesses, they being Gyan and Pratap Chand. The criminal case resulted in judgment dated 22.09.1993 of the court of the Metropolitan Magistrate whereby the appellant stood acquitted primarily for the reason that the said witnesses (Gyan and Pratap Chand) had not identified him as the driver of the car in question at the relevant point of time.

5. The appellant moved the tribunal on 29.10.1999 seeking setting aside of the ex parte award dated 20.05.1994 invoking the provisions contained in Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) on the contention that he had never been served and, therefore, his non-appearance during the inquiry was not intentional, his conduct being bonafide since he had no knowledge about the pendency of such proceedings. He also referred to the above noted result of the criminal case. The Tribunal considered the said request in the light of records

including the report (of refusal) on the process issued and returned and by order dated 22.09.2000, found no substance in the application, also holding it belated and, therefore, dismissed the same.

6. A copy of the judgment of the criminal court (mark R) was presented before the tribunal during inquiry. The plea based on acquittal from criminal charge, however, also did not impress the tribunal and the application was dismissed as being devoid of merit.

7. The appellant challenged the dismissal of his application under Order IX Rule 13 CPC before this court by MACA 399/2000 which was decided by a learned single Judge of this court by order dated 27.07.2004. A copy of the said order refers to the Miscellaneous case (M-16/1999) correctly in relation to application under Order IX Rule 13 CPC but mentions the date of the order incorrectly as 29.08.2000. Be that as it may, it is noted that, while pressing the said appeal, the appellant mainly argued that the criminal court had held that he was not the driver of the offending vehicle and, against that backdrop, if opportunity were to be given to him to defend himself before the Motor Accident Claims Tribunal, by the "ex parte proceedings" being set aside, "no prejudice would be caused to the claimant or anybody else". The learned single Judge accepted this plea "in the peculiar facts and circumstances" of the case and found it proper to allow the application under Order IX Rule 13 CPC so as to set aside the order of the tribunal dismissing the said prayer and directed the parties to appear before the tribunal for proceedings to commence "in accordance with law" in the context of the claim case.

8. After the order of remit by this court, by order dated 27.07.2004 in MACA 399/2000, the proceedings stood revived before the tribunal. In the course of the said inquiry, it came to be revealed that both witnesses, Somnath (PW-3) and Pratap Chand (PW-4), on whose testimony the claimants had relied on had passed away during the interregnum. Against the said backdrop, the tribunal held that there was no reason to discard the evidence of the said witnesses, the evidence presented before the criminal court or the result of such proceedings being inconsequential for the claim case. Thus, the defence taken by the appellant denying any connection with the driving of the car was rejected by judgment dated 17.12.2007. It is the said result which is impugned by the appeal at hand.

9. Having heard the learned counsel for the appellant at length, this court finds no merit in the appeal and, thus, holds that it is liable to be dismissed.

10. The record of the tribunal shows that when notice was issued and tendered by the process serving official, the appellant refused to receive the same. It is the said refusal and the non-appearance thereafter which led to he being set ex parte. Though, after the ex parte judgment had been passed, in his application under Order IX Rule 13 CPC, he had claimed that he had never been served, the Tribunal while rejecting the said prayer noticed at length the status of the record confirming that there was due service and, consequently, the absence was willful and intentional. Pertinent to note here that when the said order rejecting the application under Order IX Rule 13 CPC was challenged by him, by appeal before his court, he did not

challenge the status of the record noted by the tribunal or the conclusions reached thereupon. His plea was merely of mercy, that too in the context of the acquittal order that had been rendered, in the meantime, by the criminal court in the corresponding case arising out of the police report. His submission was noted by the learned single Judge in the order dated 27.07.2004 to the effect "when law has found him not to be a driver of the offending vehicle", he was being held liable to pay a huge amount "for no fault of his", which in his then submissions, would cause him "a prejudice beyond repair". It is such considerations which resulted in the remit order. The court was not informed at that stage that the two witnesses relied upon by the claimants before the tribunal during inquiry had since died and their presence, therefore, would no longer be available. The findings on fact returned by the tribunal in the order rejecting the application under Order IX Rule 13 CPC thus remained unchallenged. The remit order was more so to give one more opportunity to the appellant to defend himself in the claim proceedings.

11. It is against the above backdrop that the view taken in Mst. Lakshmi Devi vs. Roongta and Co., AIR 1962 Allahabad 381 cannot be applied to the facts of the case. There cannot be a general rule that the evidence recorded during ex parte proceedings cannot be availed of by the claimants in the proceedings recorded after the ex parte order is set aside.

12. The reliance on the judgment of the criminal court is misplaced. A copy of the said judgment itself shows that the prosecution had depended on only two witnesses, they being Gyan and Pratap Chand.

The witness named Gyan was not examined by the claimants in the present case. Pratap Chand was examined as PW-4 but he never claimed that he had seen the driver of the car as he only deposed about the collision of the car having fled away from the scene. The crucial witness was Som Nath (PW-3) whose evidence was not availed by the police in the corresponding criminal case. It is he who had identified and connected the appellant with the accident. His evidence was recorded in the inquiry when the appellant had chosen to suffer the proceedings ex parte. Since he has died, his presence would not be available. His evidence, however, remains relevant and can be acted upon in view of the provision contained in Section 33 of the Evidence Act, 1872.

13. For the foregoing reasons, the view taken by the tribunal cannot be faulted. The impugned judgment is upheld. The appeal is dismissed. The pending application is rendered infructuous and disposed of accordingly.

14. The proceedings recorded on 20.01.2009 reveal that against the award of Rs.1,80,000/-, the appellant had deposited Rs.30,000/-. During the pendency of the appeal filed earlier, he had assured the court on 17.02.2009 that he would deposit further amount of Rs.60,000/-. It is submitted on his behalf that further amount of Rs.60,000/- was later deposited. Such amounts, if lying in deposit, shall be released to the claimants for part satisfaction of the award in their favour. The statutory amount deposited by the appellant shall be passed on to the tribunal for being availed of for further satisfaction of

the award. For the balance, the claimants have the liberty to take out appropriate proceedings before the tribunal.

R.K.GAUBA, J.

AUGUST 11, 2017 yg