Punjab-Haryana High Court
Gurjashanjeet Singh And Others vs Amandeep Singh on 6 July, 2022
CM-1434-CII-2020 in/and
RA-CR-8-2020 in
FAO-3250-2015 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM-1434-CII-2020 in/and
RA-CR-8-2020 in
FAO-9653-2014
Date of decision:-6.7.2022
Gurjashanjeet Singh and others
...Non-applicant/Appellants
Versus
Amandeep Singh
...Applicant/Respondent
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.A.D.S. Jattana, Advocate
for the applicant/respondent.
Mr.Malkeet Singh, Advocate
for the non-applicant/appellants.
****
H.S. MADAAN, J.
1. On account of death of Inderpreet Singh Sidhu in a motor
vehicular accident, which took place on 16.5.2011 at about 4:30 p.m.
while he was coming from Banur side on his motorcycle having
registration No.HR-01W-4724, statedly on account of rash and negligent
driving of tractor trolley NO.PB-65K-5099 by Amandeep Singh -
respondent, the LRs of the deceased Inderpreet Singh Sidhu, namely
Gurjashanjeet Singh and others had filed a claim petition under Section
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166 of the Motor Vehicles Act, 1988 against Amandeep Singh -
respondent. That claim petition was however dismissed by Motor
Accident Claims Tribunal, Ambala vide award dated 30.1.2013.
2. Feeling aggrieved, the claimants had preferred an appeal
before this Court. Notice of that appeal was issued to respondent. As per
report on the notice sent for service of respondent Amandeep Singh for
1.12.2015, the respondent was not present at the given address and the
Process Server came across his sister-in-law i.e. brother's wife, who is
said to have read the summons and appended report on the back of
summons in her own hand that Amandeep Singh had gone to U.P. along
with his combine harvestor machine and was expected to return by
January.
3. However, as per report on notice for 21.3.2015, the Process
Server had come across mother of respondent, namely, Smt.Narinder
Kaur, who accepted the service receiving copy of summons along with
copy of petition. That report was attested by a witness. On the basis of
that report, since there was no representation in the Court on behalf of
respondent, he was proceeded against ex-parte vide order dated 27.9.2018.
4. After hearing arguments, application under Section 5 of the
Limitation Act so filed by the appellants/claimants for condonation of
delay of 480 days in filing of the appeal, was accepted and delay was
condoned. Arguments on merits were heard. The appeal was accepted and
vide order dated 13.5.2019, the award passed by MACT, Ambala was set
aside, the claim petition was accepted and compensation of Rs.30,54,000/-
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along with interest @ 7.5% per annum was awarded to the claimants
payable by the respondent.
5. Thereafter, respondent put in appearance through counsel
moving an application for review and for recalling/reviewing the ex-parte
judgment dated 13.5.2019. In that application, the respondent has
contended that he was wrongly proceeded against ex-parte since the report
of the Process Server that mother of respondent, namely, Smt.Narinder
Kaur had accepted the service, was not proper since there was no witness
of the service and Process Server could not possibly know that who was
mother of respondent and then effect service upon her; the report made by
the Registry of this Court (service upon responsibility) was not correct, in
that way, the respondent was deprived of presenting his view point that he
was not guilty of any rashness and negligence in happening of the
accident, which is fortified from the fact that he has been acquitted by the
criminal Court in the FIR relating to the accident in question.
6. Since the application was filed belatedly by 182 days, an
application under Section 5 of the Limitation Act was filed seeking
condonation of delay in moving the said application for review/set aside
of the ex-parte order/proceedings stating that the respondent was not
aware of the order passed in appeal by this Court earlier and he came to
know about it when an execution application was filed and notice thereof
was issued to the respondent by post and the delay was not intentional or
wilful.
7. Notice of both the applications was issued to the
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appellants/claimants, who put in appearance through counsel and filed
reply opposing the applications praying for their dismissal.
8. I have heard learned counsel for the parties besides going
through the record.
9. The main question to be seen in this case is as to whether the
respondent was duly served in this case or not. Personal service of
respondent could not be procured in this case despite sending notices by
this Court several times. As the record shows on one occasion when the
notice had been sent for service of respondent, he was not available at
home and the Process Server came across his sister-in-law, who reported
that the respondent had gone to U.P. with combine harvestor machine and
was to return after some time. The Process Server could have got service
effected upon such sister-in-law of respondent but he did not do so.
10. Order 5 Rule 15 CPC deals with such situation where service
may be effected on an adult member of defendant's family. It provides that
where in any suit the defendant is absent from his residence at the time
when the service of summons is sought to be effected on him at his
residence and there is no likelihood of his being found at the residence
within a reasonable time and he has no agent empowered to accept service
of the summons on his behalf service may be made on any adult member
of the family whether male or female, who is residing with him.
11. The Process Server having gone to the address of the
respondent as given in the claim petition itself and coming across his
sister-in-law first and then his mother, they are to be taken as members of
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his family and service of the respondent effected upon his mother, who
had accepted service so at her responsibility receiving copy of
summons/notice along with copy of the petition is to be taken as due
service in terms of Order 5 Rule 15 CPC and the Court accordingly took it
to be so. With respondent not putting in appearance either in person or
through counsel, he was rightly proceeded against ex-parte and no fault
can be found with the same.
12. The objections to the contrary raised by the respondent in the
application are totally devoid of merit. The application has been filed
quite belatedly by 182 days. No cogent or convincing reason could
explain justifying the delay in approaching the Court. As such no ground
is made out to condone the delay in moving the application. The
application deserves to be rejected being hopelessly time barred, not only
that but on merits also in view of the detailed discussion above.
13. Furthermore, the respondent/applicant has moved composite
application for review as well as for recalling/setting aside of the ex-parte
judgment dated 13.5.2019, which is misconceived. As discussed above in
detail, no case for setting aside of ex-parte proceedings is made out. The
order vide which the respondent was proceeded against ex-parte is legal
and valid. Similarly the order passed by this Court setting aside the award
passed by MACT, Ambala and allowing the claim petition is quite
detailed, well reasoned and there is no reason to interfere therewith by
way of review. No ground is made out to exercise any review jurisdiction
in this case.
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14. Learned counsel for the non-applicant/appellants has referred
to judgment Kamlesh Verma Versus Mayawati and others2013(4)
SCC(Cri) 265 by the Apex Court wherein law with regard to review of
judgment was summed up as under:
When the Review will be maintainable:-
(i) Discovery of new and important matter or evidence which,
after the exercise of due diligence, was not within knowledge
of the petitioner or could not be produced by him;
(ii)Mistake or error apparent on the face of the record;
(iii)Any other sufficient reason;
(iv)The words"any other reason" mean "a reason sufficient on
grounds at least analogous to those specified in the rule".
1955(1) SCR 520, relied.
When the review will not be maintainable:-
(i) A repetition of old and overruled arguments is not enough to
reopen concluded adjudications;
(ii)Minor mistakes of inconsequential import.
(iii)Review proceedings cannot be equated with the original
hearing of the case.
(iv)Review is not maintainable unless the material error,
manifest on the face of the order, undermines its soundness
or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an
erroneous decision is re-heard and corrected but lies only
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for patent error.
(vi)The mere possibility of two views on the subject cannot be a
ground for review.
(vii)The error apparent on the face of the record should not be
an error which has to be fished out and searched.
(viii)The appreciation of evidence on record is fully within the
domain of the appellate court, it cannot be permitted to be
advanced in the review petition.
15. He has further referred to another judgment Sivakami & Ors
Versus State of Tamil Nadu & Ors, 2018(2) RCR(Civil) 1006. In that
judgment, it was held by Hon'ble Supreme Court that power of review is
very limited and may be exercised only if there is mistake or error
apparent on face of record and the review petition cannot be decided like
regular intra Court appeal. It was further observed that what was not
decided in appeal by a Division Bench could not be decided by it by
deciding review application.
16. Further it has to be kept in mind that Section 166 of the
Motor Vehicles Act is a piece of welfare legislation meant to provide
prompt compensation to the LRs of deceased victim/to injured victim, as
the case may be. The accident in this case had taken place on 16.5.2011
while vide order passed by this Court, the compensation has been granted
to the claimants on 13.5.2019 i.e. after about 8 years. The respondent,
who had not opted to put in appearance in the Court despite due service
and to offer a contest now want to take advantage of his own wrong
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appearing belatedly after the appeal has been disposed of seeking to set
the clock back, which he cannot be permitted to do.
17. No ground is made out to exercise any review jurisdiction in
this case.
18. The applications stand dismissed.
6.7.2022 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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