Preeto Devi And Others vs Maral Overseas Ltd. And Others
2021 Latest Caselaw 196 j&K

                                                                    Serial No. 501




              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU

                                                           MA No. 185/2005


Preeto Devi and others                                         ...Appellant(s)

                         Through:- Mr. K.S. Johal, Sr. Advocate with
                                   Mr. Karman Singh Johal, Advocate.

                           v/s

Maral Overseas Ltd. and others                              ....Respondent(s)

                      Through:- Mr. Udhay Bhaskar, Advocate.



Coram:       HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                      ORDER

1. Through the medium of the instant appeal, order dated 01.09.2005

passed by Motor Accident Claims Tribunal, Jammu is being questioned by

the appellants.

2. Facts those emerge from the appeal in hand are that an application is

stated to have been filed by the appellants for restoration of a claim petition

filed under Motor Vehicles Act, upon its dismissal in default, being legal

heirs of one, Puran Chand- the original claimant who had instituted the said

claim petition for injuries suffered by him on account of a vehicular accident

and had died during the pendency of the said petition on 16.03.2004,

whereupon the present appellants are stated to have filed an application for

bringing on record legal heirs /substitution of the legal heirs of the said

deceased -Puran Chand, before the Tribunal and that the said application is

stated to have been dismissed in default by the Tribunal on 25.05.2005 in

respect of which the above application for restoration is stated to have been

filed wherein, the order dated 01.09.2005 under challenge in the instant

appeal had been passed dismissing the said restoration application on the

premise that the same has been filed by a dead person (Puran Chand) and by

none of his legal heirs.

3. Heard Mr. K.S. Johal Sr. Advocate appearing counsel for the

appellants with Mr. Karman Singh Johal as also Mr. Udhay Bhaskar

appearing counsel for the respondents.

4. Mr. Johal, states that the dismissal of the restoration application in

terms of the impugned order amounts to the dismissal of the main claim

petition having been filed by the deceased, in that, the dismissal of the same

amounts to the passing of an award by the Tribunal thus, amenable to an

appeal under Section 173 of the Motor Vehicles, Act. Mr. Johal while

making his submission reiterated the contentions urged in the memo of

appeal and relied upon a judgment passed by this Court in the case of

United India Insurance Company Vs. Sanjay Manmotra and others

reported in 1998 KLJ Page 1.

5. On the other hand, Mr. Udhay Bhaskar, however, resisted and

controverted the contention raised by Mr. Johal on the premise that the

instant appeal is not maintainable, in that, the order of dismissal of the

restoration petition per se does not amount to an award under Motor

Vehicles Act and thus, not amenable to appeal under the said Act.

6. Confronted with the objection of Mr. Bhaskar, to the maintainablility

of the appeal, Mr. Johal would submit that the appeal be treated as a petition

under Article 227 of the Constitution, in that the order impugned is patently

perverse inasmuch as, caused gross and substantial failure of justice as also

flouted principles of natural justice.

7. Perusal of the record would reveals that the claim petition, admittedly

had been filed by the deceased claimant under the provisions of the Motor

Vehicles Act and that after his death in the year 2004, the present appellants

being his legal heirs sought impleadment/substitution in place of the

deceased thereof in the claim petition while laying a motion which

application however, came to be dismissed in default on 25.05.2005

resulting into institution of the restoration application by the said legal heirs

which too is dismissed by the Tribunal in terms of order impugned dated

01.09.2005.

8. Perusal of the record further reveals that the Tribunal dismissed the

restoration application of the appellants herein on a factually wrong premise

that the same has been filed by a dead person and that same does not bear

the name of any of the legal heirs though, noticing that the affidavits in

support of the application is one of the legal heirs. The Tribunal seems to

have drawn the said conclusion upon perusal of the cause title of the said

application. The order impugned manifestly is passed in absence of the

appellants without even affording an opportunity of being heard to them.

9. In view of the aforesaid patent and perverse illegality of the Tribunal,

the question of maintainability of the instant appeal as raised by the learned

counsel for the respondents pales into insignificance and need not to be

address to and instead this Court deems it appropriate in the peculiar facts

and circumstance of the case, to exercise supervisory jurisdiction to correct

the aforesaid patent perversity and illegality of the Tribunal which in the

process has caused manifest failure of justice inasmuch, as breached

principles of natural justice.

10. Having regard to the aforesaid facts and circumstances, the impugned

order dated 01.09.2005 is set aside and the matter is remanded back to the

Motor Accident Claims Tribunal Jammu for reconsideration of the

application filed by the appellants herein for restoration of the application

for bring on record legal heirs of the deceased claimant, in accordance with

law preferably within a period of one month from the date of passing of this

order. Parties to appear before the Tribunal on 15.03.2021.

Disposed of, along with all connected IA (s).

(JAVED IQBAL WANI) JUDGE

Jammu 25.02.2021 Renu

Whether the Order is speaking? Yes/No.

                                      Whether the Order is reportable?        Yes/ No.




RENU BALA
2021.03.01 16:07
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