Bani Singh vs Kamla and Others

J.K. Ranka, J—The instant appeal is directed against the award dated 17.11.1993 passed by Motor Accident Claims Tribunal, Ajmer, in Claim Case No. 242/1989.

Brief facts which can be noticed is that on 29.8.1989, Ratanlal Sharma, who was employed with the present appellant and was driving the truck bearing No. DIL 3736 and when he was driving the said vehicle, on account of technical fault the truck overturned and the deceased Ratanlal came under the truck and died on the spot. It is stated that the truck which the deceased was driving, was technically not proper and the owner was directed to repair the same repeatedly, but the present appellant did not take any heed and directed the deceased to take the vehicle for delivery of the goods.

Claim was lodged by the claimant-respondents before the Tribunal and prior to that FIR was lodged and the Tribunal by a detailed award dated 17.11.1993 allowed the claim of the claimants at Rs. 6,28,000/-, which has been assailed in the present appeal by the owner of the vehicle.

Counsel for the appellant has contended that the impugned award itself is illegal as the same has been decided without hearing the appellant and there was no notice to the appellant for appearance and, if any notice was issued, it was sent on wrong address and, therefore, the award passed behind his back is unjustified and illegal. He further contended that the appellant was nowhere connected with the said truck as vide an agreement dated 5.10.1988 he had sold the disputed truck (which met with an accident) and the entire sale consideration of Rs. 2,85,500/-, out of which Rs. 71,093/- was received and possession was handed over to one Des Raj son of Dayal Das and balance was to be paid by Des Raj to Bank. Since the appellant was not even remotely connected with the truck at the time of accident, therefore, the claim passed by the Tribunal against the appellant is itself illegal and deserves reversal. He further contended that the appellant came to know about the impugned order when execution proceedings commenced and, therefore, the appeal was filed subsequent to that. On merits also he contended that the claim passed by the Tribunal is highly excessive and unreasonable and proper facts have not been looked into by the Tribunal. He also contended that the income itself adopted was not proper and higher as no evidence was led. He further contended that the multiplier is allowed higher and interest is even at the rate of 15% which is highly excessive.

Per contra the learned counsel for the claimants contended that the impugned order is just and fair, and after considering each and every issue the Tribunal has passed an elaborate order which needs no interference. He further contended that no material was placed on record by the appellant during the course of several proceedings which went on before the Tribunal right from 1989 to 1993, and the appellant was quite aware of the claim having been filed. He also contended that the present appeal has been filed after a delay of more than 3129 days which has not been adequately proved by the appellant herein. He further contended that if there was any grievance, he could have moved an application under Order 9 Rule 13 CPC for recalling of the impugned award before the Tribunal, which was not done for the reasons best known to it, and further contended that the agreement which has been placed with the appeal now, is an after thought and no credence can be placed on such an agreement. He further contended that the vehicle was neither transferred, nor registered in the name of subsequent purchaser. He contended that even if the agreement is taken on record, even then the appellant continued to remain the registered owner as even the vehicle was not transferred as per the alleged agreement and thus for all practical purposes Des Raj could not have been taken into consideration nor the claimants were aware about the said agreement. He further contended that under the Motor Vehicles Act, driver/registered owner/insurance company are only the necessary parties and thus contended that the order deserves to be upheld.

I have considered the arguments advanced by the counsel for the parties. In my view the order of the Tribunal which has been passed considering the various facts and material on record, is required to be upheld except that the quantum of the claim which has been allowed, in my view, is excessive and requires slight modification which will be considered hereinafter.

Admittedly, the accident took place on 29.8.1989 in which the deceased Ratanlal Sharma was a driver of the said vehicle and which on account of technical fault or otherwise overturned and the deceased came under the truck and he has been found to be dead on the spot. The Tribunal, after considering the driving license of the deceased Ratan Lal, FIR, post mortem report, registration certificate of the truck, which have been placed on record, has considered the issue elaborately and in my view it needs no further consideration.

As far as the claim that the appellant has sold the truck to one Des Raj is concerned, and the agreement which has now been placed by the appellant herein, in my view deserves to be ignored out rightly for the reason that it is merely an agreement which does not show anything else except the claim that the vehicle has been agreed to be sold to Des Raj. Even it is stated that the vehicle was not transferred under the Motor Vehicles Act, and the appellant continued to remain the registered owner of the vehicle, and for all practical purposes in my view, liability has rightly been fastened on the appellant. The Allahabad High Court has in Abdul Wasi Vs. Bhairamdeen alias Bacchi and Others, (2003) 3 ACC 307 : (2004) ACJ 885 : (2003) 4 AWC 2711 , has held that a vehicle has to be transferred by an appropriate authority then only the vehicle can be said to be transferred legally. Even otherwise, filing of the alleged agreement appears to be an afterthought only.

From the material which has come on record, the execution proceedings started on 14.7.1994 vide Execution No. 82/1994 (new No. 18/1999) and to say that the appellant was not even aware of the proceedings, in my view is wholly improper. The impugned award was passed on 17.11.1993, the execution started vide order dated 14.7.1994 and this appeal came to be filed in this court on 12.9.2002, with a delay of almost 3129 days, or say about nine years, pointed out initially. Though this court initially had issued notice under Section 5 of the Limitation Act for condonation of delay, but a perusal of the file reveals that on 11.9.2007 the appeal itself was admitted for hearing, and no order as such was passed on application under Section 5 and the counsel for appellant has not been able to state whether any order for condonation of the abnormal delay of almost nine years, has been passed, nor there is any order of condonation of delay on record. The condonation application itself does not spell out any appropriate or good reason to come to a conclusion that the appellant was vigilant in not filing the present appeal, the application simply observes as follows:--

"1. That the annexed appeal against order/judgment dated 17.11.1993 could not be filed within the prescribed period of limitation for the reason that he learnt about the matter for the first time when a summon dated 01.07.2002 was served on him in reference to a recovery notice dated 07.05.2002, sent to the Collector Rewari about the passing of the Award against the appellant. Now after getting the certified copies of the documents and the impugned Award, the appellant is approaching this Hon''ble Court. A copy of summon dated 01.07.2002 is annexed herewith and shown as Annexure-8.

That the respondents in collusion with each other and by misleading the Tribunal got the ex-parte award in their favour. The appellant reserving his right to take legal action in reference to alleged service effected by forging his signatures. It is submitted that the respondent No. 3 insurance company has submitted before the Ld. Tribunal that the cover note of the insurance policy, the date of insurance and expiry were not mentioned and it was also not mentioned from which branch and place the policy was done. But the Ld. Tribunal without summoning the record of the insurance company and on verbal submissions passed the award against the appellant."

Be that as it may, from the facts observed earlier, there is no proper reason assigned by the appellant of the abnormal delay of almost eight years in filing the instant appeal, and in my view the delay has not been explained and no reasonable cause has been pleaded. Thus, the appeal is incompetent being barred by limitation.

Be that as it may, since the claimants, as stated by the counsel, during the last almost twenty six years have not received any compensation, and there is no fault of the respondents and the Tribunal had allowed the claim taking into consideration all the facts and material on record, and for the reasons assigned earlier, and even on merits I do not find any merit in the appeal on both legal as well as other aspects which has been elaborately discussed and considered and referred to hereinbefore. However, I feel that the amount allowed by the Tribunal is on higher side, and taking into consideration the judgment of Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 the multiplier, looking to the age, would be 17, and the quantum of the same is reworked out hereunder considering the facts and taking income considered by the Tribunal :--

Accordingly, the claim allowed by the Tribunal to the extent of Rs. 6,28,400/- is reduced to Rs. 5,13,000/-, with a partial relief of Rs. 1,15,500/- along with interest. The interest allowed at the rate of 15% is also, in my view, on the higher side, which deserves to be restricted to 9%, however, with the direction that the same shall be allowed from the date of filing of the claim petition till the actual payment is made.

With the above modification, the appeal is partly allowed.