Heard Sri A.S. Parmar learned counsel for the petitioner, Sri Rakesh Srivastava, learned Standing Counsel and Sri U.P.S. Kushwaha learned counsel for National Insurance Company limited.
With the consent of learned counsel for the parties, both the writ petitions are clubbed together and are being decided by a common judgment as the common question is involved in both the writ petitions.
In brief the facts , as submitted by the learned counsel for the petitioner, are that on 8.3.1999, an accident had taken place near village Mahuli district Sitapur in which truck having registration no. U.S.X.- 6417 was involved owned by the petitioner Sri Surendra Singh.
As a result of the said accident, two claim petitions were filed, first, Claim Petition No. 249 of 1999 (Ashok Kumar Vs.Surendra Singh and others) wherein the claimant Ashok Kuamr had inter alia pleaded that on the date of accident i.e. on 8.3.1999 due to rash and negligent driving of the driver of the truck no U.S.X.-6417(hereinafter referred to 'truck') an accident had taken place as a result of which he suffered grievous injuries and hospitalized for treatment so a huge amount had been expended on his treatment, for getting compensation , the aforesaid claim petition was filed .In the claim petition , National Insurance Company Limited Branch Eye Hospital Road, District Sitapur, insurer 2 of the vehicle was impleaded as one of the respondent.
Another Claim Petition No. 213 of 1999, (Smt. Rama Devi and others Vs. Surendra Singh and others) was filed by the claimants inter alia stating therein that the accident which had taken place on 8.3.1999 due to rash and negligent driving by the driver of the truck , Sri Jagat Narain , the husband of Smt. Rama Devi (claimant no.1) had died so for compensation,the aforesaid claim petition was filed by the heirs of the deceased late Sri Jagat Narain..
Initially, the said claim petitions were adjudicated by the Special Judge, Sitapur and clubbed together as the dispute involved in both the claim petitions had arisen from the same accident . Moreover, from the record, it transpires that the written statements were filed on behalf of the owner of the vehicle Sri Surendra Singh in both the claim petitions stating and pleading that at the time of accident , the truck in question was insured with National Insurance Company Limited and the driver of the truck was holding a valid licence . The written statements were also filed on behalf of the National Insurance Company insurer of the truck.
Thereafter the aforesaid claim petitions were transferred to Motor Accident Claims Tribunal/ Special Judge, (E.C. Act), Sitapur on 16.7.2005 and before the Tribunal , on the basis of the pleadings and material available on record, the issues were framed for disposal of the case; out of which issue nos. 2 and 3 which were framed are ; (2) whether at the time of accident accident , the truck was insured with the National Insurance Company or not, (3) whether at the time of accident the driver of the truck was holding a valid licence or not .
As per the version of the petitioner (owner of the truck) no notices were sent to him when the claim petitions were transferred from the court of Special Judge, Sitapur so he was not able to put appearance before the Motor Accident Claims Tribunal / Special Judge, (E.C. Act) Sitapur , accordingly when the cases were finally heard no arguments were advanced on his behalf , thereafter by way of award dated 17.3.2007, the tribunal had allowed the claim petition no. 213 of 1999 thereby awarding a sum of Rs. 4,07,787.03 paisa in favour of claimant 3 and a sum of Rs. 1,74,880/- was awarded in favour of claimant in Claim Petition No. 249 of 1999, while passing the awards , the Claims Tribunal had further held that the said amount so awarded will be payable by the Insurance Company the insurer of the truck, to the claimants but the same can be recovered by the Insurance Company form the owner of the truck.
In pursuance of the award dated 17.3.2007, the compensation as awarded were paid to the claimants in the aforesaid claim petitions respectively and after payment , the National Insurance Company (opposite party no.5) filed an execution cases ( Execution Case no. 15 of 2007 and 16 of 2007) before opposite party no.5 in order to recover the said amount from the owner of the truck ( Sri Surendra Singh) the petitioner. When the notice of the aforesaid execution cases were served on the petitioner, then he moved an application for review of the judgment and award dated 17.3.2005 passed in the aforesaid claim petitions alongwith an application for condonation of delay under Section 5 of the Limitation Act. Accordingly, Misc. Case no. 20 of 2007 Surendra Singh Vs. Rama Devi and others and Misc. Case No. 21 of 2007 Surendra Singh Vs. Ashok Kumar were registered before opposite party no.6. After hearing the parties by an orders dated 12.10.2009 placing reliance on the judgment passed in the case of Delhi Development Authority Vs. Rukmani Bansal and others , 2008, ACJ 2770 and Uttra Soni and others Vs. Oriental Insurance Company Limited and others ,2009 ACJ 276, the review petitions filed by the petitioner where held to be not maintainable and the applications under Section 5 of the Limitation Act were dismissed filed by the petitioner , hence the present writ petitions have been filed before this Court.
Learned counsel for the petitioner while assailing the impugned orders under challenged in the present writ petition submits that the action on the part of the respondent no.6 thereby rejecting the petitioner's application for condonation of delay in moving the application for review of the order passed by opposite party no.6 in claim petitions is an action which is wholly illegal and arbitrary in nature keeping in view the facts that the claim petitions were decided ex parte against the 4 petitioner and no opportunity whatsoever had been provided to him to put forward his case that the truck in question which is owned by the petitioner was insured at the time of accident with the Insurance Company and further the driver of the said truck possessed the valid driving license as such the Insurance company is liable to pay compensation and not the petitioner. Keeping in view the said fact ,the directions given by the Claims Tribunal by judgment and award dated 17.3.2007 that the Insurance Company shall pay the compensation awarded by the Claims Tribunal in favour of the claimants of the claim petitions and the same can be recovered from the petitioner who is owner of the truck in question involved in the accident is an action which is totally contrary to facts and circumstances of the case so the court below should intervene in the matter in question and recall the ex parte judgment and award dated 17.3.2007.
Sri Kushwaha learned counsel for the respondents submits that the orders which are under challenged in the present writ petition are perfectly valid and in accordance with law as the Motor Accident Claims Tribunal has got no power of review its earlier order so keeping in view the said facts, applications under Section 5 of the Limitation Act moved by the petitioner were rejected. Accordingly, the orders which are under challenged in the present writ petition are perfectly valid and need no interference.
Sri Kushwaha learned counsel for the respondents further submits that the documents which is submitted by the Counsel for the petitioner by way of supplementary affidavit dated 3.2.2010 are received by him today and as such he is not able to get instructions in the matter in question in respect to the said documents which are submitted by the petitioner by way of supplementary affidavit.
He further submits that once the Tribunal had come to the conclusion that at the time of accident the truck was not insured with the Insurance Company, in this regard issue no. 2 was framed and decided in favour of the Insurance Company then the action on the part of the Tribunal thereby mentioning at page 11 of the judgment that truck was insured with the Insurance Company was a contrary findings given by 5 the Tribunal . Moreover, once the issue no.2 had been decided in favour of the Insurance Company holding that the truck in question was not insured with the Insurance Company then there was no justification or reason to pass an award against the Insurance Company and further directing that the amount which was payable by the Insurance Company in terms of the award to the claimants shall be recovered from the owner of the truck.
I have heard the learned counsel for the parties and perused the record.
The Motor Vehicle Act 1988 is a beneficial legislation. Under Section 165 of the Act the State Government is empowered to constitute one or more Motor Accident Claims Tribunal for the propose of adjudicating the claims for compensation in respect of accidents involving the death of , or badly injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both . Further, Section 169(2) of the Act provides that certain provisions of Code of Civil Procedure are available to the Claims Tribunal while adjudicating and deciding the dispute under the Act, Section 175 of the Act provides that where any claims Tribunal has been constituted forany areas no civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. In addition to the said facts , the Rules which are framed under the Motor Vehicle Rules 1998, specially Rule 221 of the Rules also provides that certain provisions as mentioned therein are available to the Claims Tribunal while adjudicating and deciding the claim petition. Neither in Section 169 (2) of the Act nor Rule 221 of the Rules there is a power of review vested in the Claims Tribunal .
In view of the above said facts it is late in the day to quarrel on the point that the power of review is available to the Tribunal for recall of any judgment and award passed by it earlier so I do not find any illegality or infirmity in the orders which are under challenged in the present writ petitions. [ see Dinesh Singh Vs. District Judge, Ghazipur and another 2000 (18) LCD 1119] 6 However, form the perusal of the documents filed today with the writ petitions namely Annexure no.3 ( page 32 photo copy of the Insurance Policy) and Annexure no.4 ( page 33 photo copy of driving license) and the documents which are annexed as Annexure no. S.A.-1 and S.A. -2 alongwith the supplementary affidavit dated 3.2.2010 which are a clear photo copies of the said documents were filed as Annexure no. 3 and 4 alongwith the writ petition, prima facie it appears that at the time of accident on 8.3.1999 there was insurance policy for the period 2.6.1998 to 28.6.1999 issued by Insurance Company and the driver of the vehicle also possess a valid driving licence.
Accordingly, in view of the said facts, the matter in question requires consideration before the appropriate forum in accordance with law as it is the golden principle of law that justice should not be done but appears to be done and if any action by any authority which prevent justice form being seen to be done is nothing but amounts to any action which is against the fair play and is in violation of principles of natural justice .Further, it is also well settled proposition of law that all the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the facts remains that the object of prescribing procedure is to advance the cause of Justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.
The morality of justice at the hands of law troubles of judge's conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress , of legal justice compels consideration of vesting a residuary power in judges of act ex debito justitial where the tragic sequel otherwise would be wholly inequitable- justice is the goal of jurisprudence- processual , as much as 7 substantive . [See Sushil Kumar Sen Vs. State of Bihar 1975 (1) SCC 774] A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See Shreenath and Another Vs. Rajesh and others , AIR 1998 SC 1827] Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Accordingly, I am of the opinion that keeping in view the peculiar facts and circumstances of the case , the petitioner should be given a liberty/ chance to agitate the matter in question before an appropriate forum for seeking his grievance.
Moreover, the argument advanced on behalf of the respondents that the documents were annexed alongwith the supplementary affidavit dated 3.2.2010 as annexure no. S.A.1 and S.A.-2 are supplied to him during the course of the arguments on 3.2.2010. So he wants to seek instructions in respect to the same is wholly misconceived and has no force as the photo copies of the said documents are already on record as Annexure nos. 3 and 4 to the writ petition ,namely, Insurance Policy and the Driving License of the driver of the truck and only a fair photo copies of the said documents are filed by way of supplementary affidavit dated 3.2.2010 . Needless to mention herein that copies of the writ petition were already supplied to the Insurance Company.
Further, in the month of January,2010 once the National Insurance Company in pursuance of award dated 17.3.2008 had made payment to the claimants in question and thereafter had filed a execution cases before the executing court , the arguments which is advanced by the learned counsel for the Insurance Company in the present case amount to challenge the awards passed by the Tribunal on merit is an action which is wholly misconceived as the Insurance Company has got no locus or right to raise the said arguments when admittedly the Insurance Company have not filed any appeal against the award dated 17.3.2007 8 so the arguments made in this regard by the learned counsel for the respondents are misconceived and rejected.
For the foregoing reasons although the present writ petitions lacks merits and are accordingly dismissed but in the interest of justice I provide that if the petitioner so advised, he may seek appropriate remedy before the appropriate forum against the judgment and award dated 17.3.2007 in claim petition no. 213 of 1999 and 249 of 1999 respectively passed by the Motor Accidents Claims Tribunal/ Special Judge ( E.C. Act) Sitapur within a period of four weeks from today and till then the execution proceedings in Execution Case no. 15 of 2007 and Execution Case No. 16 of 2007 pending before opposite party no.6 shall remain stayed. However, if the petitioner within the aforesaid period shall not take appropriate proceedings before the appropriate forum for redressal of his grievance, the protection granted to him by this order shall automatically stand vacated and the executing court shall proceed against him.
No order as to costs.
4.2.2010 D.K.