Present writ petition has been filed questioning the validity of order dated 04.11.2009 passed by Additional District Judge, Court No.9, Muzaffarnagar in Misc. Case No.18 of 2009, Sri Chand vs. Meena arising out of Execution Case No.18 of 2009.
Brief background of the case, as mentioned in the writ petition, is that on 07.06.2006 an accident took place, wherein one Satish had died. Claim petition was filed by his father, widow and minor children giving rise to claim petition No. 350 of 2006 and therein compensation of Rs.46,30,000/- was claimed. After exchange of pleadings and evidence, said claim petition was finally decided on 20.02.2008, and therein Rs.7.30 lacs along with interest at the rate of 6% per annum had been awarded against the respondents from the date of filing of claim petition i.e. 25.07.2006, and further directives were given in the award that since Km. Nitu and Km.Anu were minor, they would not be entitled to withdraw their part of compensation and the same was directed to be deposited in the court and the said amount of Rs.2.50 lacs would be deposited in Nationalized bank and same could be withdrawn when they would become major, and remaining amount could be withdrawn by other claimants half and half each. Said judgment and decree has been challenged before This court in F.A.F.O. No.818 of 2008 under Section 173 of the Motor Vehicles Act, and this Court has passed therein a conditional order as follows:
"Issue involved herein is with regard to the liability of the owner to pay the amount of compensation when the vehicle is covered by the insurance policy.
Issue notice upon the respondents by registered post with acknowledgment due within a period of one week from this date returnable four weeks hence.
The appeal will be heard and the say of the order impugned passed by the learned Judge, Motor Accident Claims Tribunal , Muzaffarnagar dated 20th February, 2008 in M.A.C.P. No.350 of 2006 will be operative subject to deposit of 50% amount out of the entire awarded amount of Rs.7,30,000/- along with interest accrued thereon till date in cash within a period of one month from this date. Tribunal concerned is at liberty to 2 release such 50% amount to the claimants without security.
So far as the remaining 50% amount of total awarded sum is concerned, the same will be secured by the appellants by way of security other than bank or cash guarantee but to the satisfaction of the concerned tribunal.
The entire deposited amount will include the statutory deposit of Rs.25,000/- which will be remitted in favour of the concerned Tribunal as expeditiously as possible.
Translated copy of the judgment and order, if not filed, be filed on the next date of hearing."
Said order had never been complied with, and the claimants in their turn moved execution case No.18 of 2008. Petitioner's contention is that during pendency of execution case both the parties entered into compromise and in this background the claimant-respondents moved an application before the Execution Court, contending therein that they had already received the amount of compensation, and they were not interested in contesting the execution case. The petitioners submit that said application was moved on 19.09.2008 and a compromise declaration was also moved, which was also signed by the respondents, declaring therein that they had received the entire decretal amount. Petitioners submit that thereafter said execution case was dismissed, and on the order-sheet, the respondents had made their signatures. Thereafter an application was moved under Section 151 C.P.C. mentioning therein that fraud had been played not only on the parties but also on Court, and the fact of the matter remained that at no point of time any such application had been moved nor single penny had been paid and entire proceeding was bad. Thereafter application was moved for recalling the order, which has been allowed on 19.09.2008, and against the same present writ petition has been filed.
Sri Jagdish Prasad Mishra, Advocate, learned counsel for the petitioner contended with vehemence that there has been no fraud or misrepresentation and there was valid compromise, as such the order impugned is unsustainable and liable to be quashed.
Countering the said submission, Sri Nipun Singh, Advocate, representing the respondents, on the other hand, contended that this is a glaring case of fraud and misrepresentation and the same has been unearthed by the court, and in this background no interference be made.
After respective arguments have been advanced, factual position, which emerges in the present case is that on account of death of Satish, claim 3 petition had been filed, wherein after considering the evidence available on record an amount of Rs.7,30,000/- was awarded as compensation. The Motor Accident Claims Tribunal has given criteria as to how the amount was to be distributed inter se claimants. Against the said award F.A.F.O. No.818 of 2008 had been filed, wherein on 27.03.2008 detailed interim order was passed. This much is accepted position that as per directives of the said interim order, at no point of time any exercise had been undertaken and to the contrary in execution proceedings, which has been on going, on 19.09.2008 a theory has been set up that inter se parties compromise has taken place and the decretal amount has been received by the claimants and based on the same order dated 19.09.2008 has been passed dismissing the execution proceedings. Thereafter an application under Section 151 C.P.C. had been moved complaining that earlier counsel in collusion with the counsel for the other side had practiced fraud on court and at no point of time any such compromise application had been moved. The Additional District Judge, Court No.9, Muzaffarnagar considered the case and found that at no point of time order of this Court passed in F.A.F.O. had been complied with and on 19.09.2008 two new counsel Parvesh Kumar and Mohd. Rashid entered appearance and filed their vakalatnama and purported agreement of the same date, and based on the same order was passed on the same day on the said agreement in question. Sri Chand and Meena made statement that they had never appended their signatures and further the interest of the minor had been seriously compromised. Keeping in view the situation in mind, order has been recalled.
Before this Court on the question of amount being paid, there was clear silence. However, learned counsel for the petitioner has proceeded to mention that the entire decretal amount of Rs. 7,30,000/- was paid and when query was made as to what was the source of aforesaid amount and the manner in which the same had been paid, complete silence has been maintained except for saying that the amount has been paid.
Once this is the factual scenario, this Court refuses to interfere with the order impugned and writ petition is dismissed.
18.01.2010 SRY .