Subhadra Devi And Ors vs Surender Kumar And Ors
2024 Latest Caselaw 5511 P&H

Punjab-Haryana High Court

Subhadra Devi And Ors vs Surender Kumar And Ors on 12 March, 2024

FAO-1117-2013 (O&M) 2024: PHHC:035336 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

FAO-1117-2013 (O&M)
Pronounced on : 12.03.2024

Subhadra Devi and others ...Appellants

Versus

Surender Kumar and others ...Respondents

CORAM: HON'BLE MRS. JUSTICE RITU TAGORE

Present: Mr. Vipul Sharma, Advocate for the claimants/appellants.

Mr. Ishan Singh Cooner, Advocate for respondent No.1 (owner).

None for respondent No.3/Insurance Company.

ok 36 ok RITU TAGORE, J

1. This is an appeal against the award dated 11.02.2011, passed by

learned Motor Accident Claims Tribunal, Patiala, whereby claim petition filed by appellants/claimants have been dismissed.

2. Learned counsel for the appellants, contended that learned Tribunal materially erred in dismissing the claim petition on the ground that second petition on same cause of action is barred under Order 23 Rule 1 (4) of Code of Civil Procedure.

3. Learned counsel submits that principles of Code of Civil Procedure are not strictly applicable to the proceedings before the learned Tribunal. In support, he referred to the authority in 'Suresh Devi and others vs. Jasbir Singh and others' 2014 (1) PLR 466.

4. Learned counsel further urges that learned Tribunal erred by not

considering that there was no specific issue framed regarding the

FAO-1117-2013 (O&M) 2024: PHHC:035336 2

maintainability of the petition. Therefore, learned Tribunal should not have dismissed the claim petition.

5. Learned counsel also argues that claimants did not purposefully conceal the filing of earlier petition. The non-mentioning of the same in petition, given facts, was of no consequence. Learned counsel thus urged to set aside the order dated 11.02.2011, passed by the learned Tribunal.

6. Per Contra, Learned counsel for the owner stated that since earlier petition filed was withdrawn, without any liberty to file fresh petition, therefore, second claim petition was not maintainable in view of the provisions of Order 23 Rule 1 (4) of CPC and second petition has rightly been dismissed. Moreover, claimants did not disclose the fact of withdrawal of earlier petition in present (subsequent) petition and suppressed material and real facts from the Court. It amounts to abuse of process of law. On this ground, the claimants have been rightly non-suited.

7. I have heard learned counsel for the parties and have gone through the record and the paper book.

8. The question of maintainability of second petition after dismissal of first petition being withdrawn had arisen before this Court in Suresh Devi (supra) after taking into consideration the decision of Madhya Pradesh High Court in 'Dinesh Kumar vs. Sunil Kumar' in Writ Petition No.2021 of 2008, decided on 06.11.2012, and decisions rendered by this Court in 'Kuldeep Kaur and others vs. Kanwaldeep Singh in FAO no.1977 of 2007, decided on 10.11.2010, and 'Bimla Devi and another vs. Raj Bala and others' in CR No.4995 of 2008, decided on 10.03.2009, held that 'the judicial approach, thus, seems to be liberal in regard to prosecution of claim petitions under the Act. The dismissal of the claim petition, otherwise than on merits, has not

been held to be a bar to fresh petition, irrespective of the fact whether the first

FAO-1117-2013 (O&M) 2024: PHHC:035336 3

petition was dismissed as withdrawn or was dismissed in default. In light of legal position stated above, I am of the considered view that in the instant case, the second petition filed by claimant in MACT, Mohali, ought not to have dismissed on the ground that no liberty was sought to file fresh petition when the earlier petition was withdrawn from MACT, Ambala. If the petition is otherwise maintainable, it should not have been dismissed on technical grounds. The claimant not only has the right to file fresh petition, but it can also choose the forum wherein such petition may be filed.'

9. Coming to the facts of the present case, claimants filed a petition under Section 166 of Motor Vehicles Act, 1988 for grant of compensation to the tune of Rs.12 lakh with interest, on account of death of Sat Narain, in a motor vehicular accident, occurred on 27.10.2001, caused by respondent No.1, by driving the offending truck bearing registration No.HR-37-5242, recklessly and negligently.

10 Respondent's (driver, owner and insurer) of the offending vehicle filed the reply and denied the cause and manner of accident. Respondent No.2 driver pleaded his false implication. Respondent No.3/Insurance Company pleaded violation of terms and conditions of policy on the ground that respondent No.2/driver had no valid and effective driving license to drive the vehicle.

11. From the pleadings of the parties, learned Tribunal framed the

following issues.

1. Whether deceased Sat Narain Singh died in a motor accident caused due to rash and negligent driving of offending vehicle Truck No.HR-37-5242 by its driver respondent No.2 in the area of village Shahpur (Ambala) on 27.01.2001? OPA

FAO-1117-2013 (O&M) 2024: PHHC:035336 4

2. Whether the claimants are entitled to compensation, if so

its quantum and from whom? OPA

3. Whether the driver of vehicle Truck No.HR-37-5242

was not holding valid and effective driving licence at the

time of accident. If so, its effect? OPR3

4. Whether jeep No.HR-69-3424 was not holding valid and

effective route permit and fitness certificate at the time of

accident, if so its effect? OPR3

5. Relief

12. During the course of proceedings, parties led evidence. The Insurance Company raised the legal issue as to the maintainability of the petition, barred by provisions of Order 23 Rule 1 (4) of CPC being a second petition. As the earlier petition was dismissed as withdrawn, the learned Tribunal ruled in favour of the Insurance Company.

13. As evident from the observations of the learned Tribunal, first petition was withdrawn simplicitor. The petition was not decided on the merits. It is settled that the provisions of Code of Civil Procedure are not strictly applicable to MACT proceedings. Rather, in Bimla (supra), it was observed that provisions of Order 23 Rule 1 CPC are not applicable. On this account, non-suiting the petition was not justified.

14. In Kuldeep Kaur (supra) plea of taking permission to file fresh petition was dealt with and it was held that Motor Vehicles Act is welfare legislation. The provisions of Order 23 Rule 1 CPC cannot be indiscriminately applied. The other observation of the Court that claimants did not provide a reason for withdrawal and suppressed the factum of withdrawal of earlier petition is concerned, to the mind of this Court; learned Tribunal adopted a very hyper technical approach. If, for some reasons claimants gave no cause

of withdrawal, it does not suggest that claimants could not withdraw the

uanpreet sinch Petition. The Court, before whom petition was withdrawn, could have asked fattest to the accu racy and

authenticity of this

order/judgment

FAO-1117-2013 (O&M) 2024: PHHC:035336 5

the reasons if necessary. If that Court was satisfied with simple withdrawal of the petition and allowed it, later on, it cannot be taken as a ground to suspect the version of claimants. Further, the learned Tribunal itself observed that claimant, as PW-1, admitted the factum of earlier institution and withdrawal of petition. This demonstrates that claimant fairly admitted to the fact, so it cannot be assumed that failing to mention the aforesaid fact was an attempt to mislead the Court or play fraud with the Court. If the petition was otherwise maintainable, it should not have been dismissed on technical grounds.

15. Still further, perusal of record reveals that parties had led their evidence on the issues. The learned Tribunal, instead of deciding the matter on merits, hastily ruled on its maintainability and avoided to decide upon each issue, so framed. The learned Tribunal, thus, did not act in a proper manner and committed jurisdictional error in not deciding the framed issues in presence of the evidence.

16. In view of the foregoing discussion, this Court deems it appropriate to allow the present appeal. Order dated 11.02.2011, passed by learned Tribunal, is hereby set aside and claim petition stands revived. Let the claim petition be listed again and the concerned Court/Tribunal, shall proceed with claim petition in accordance with law. The matter being old, it is

expected that learned Tribunal should decide the matter expeditiously.

17. No order as to cost.

18. Pending miscellaneous application(s), if any, stand disposed of accordingly.

(RITU TAGORE) JUDGE Pronounced on: 12" March, 2024 Manpreet Whether speaking/reasoned --:: Yes/No

Whether reportable : Yes/No