Kisanappa and Others vs Mohansing and Others

A.S. Chandurkar, J.—Heard. Admit.

Considering the short issue involved, parties have been heard finally.

The award dated 23/01/2009 passed by the Motor Accident Claims Tribunal, Amravati holding the driver and owner of the offending vehicle liable to pay compensation is under challenge in this appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short ''the said Act''). For the accident that took place on 30/11/2004, the present respondent Nos. 2 to 6-original claimants filed Claim Petition under Section 166 of the said Act seeking compensation in that regard. The Claims Tribunal decided the proceedings by treating the driver and owner of the vehicle in question to be duly served. By judgment dated 23/01/2009, the Claim Petition came to be partly allowed holding the driver and owner of the vehicle liable to pay compensation of Rs.4,18,000/. Other respondents were exonerated. The aforesaid award was sought to be executed in which the legal heirs of the owner raised an objection that as said owner had expired on 02/09/2006, the award passed subsequently was a nullity. The Claims Tribunal rejected said objection by order dated 29/03/2014. Hence the legal heirs of the owner of the vehicle have filed the present appeal.

Shri S.W. Ghate, learned counsel appearing for the appellants submitted that the award as passed was against a dead person inasmuch as the owner had expired on 02/09/2006 while the award came to be passed on 23/01/2009. He submitted that the owner had not been served with the summons in the claim proceedings nor was there any occasion to engage any counsel to represent him. He submitted that though the respondent No. 2 was never served in the proceedings, the same proceeded without his written statement. He referred to the objection raised in the execution proceedings to indicate that the stand in that regard had been taken before the Tribunal but same was not considered. Referring to certified copy filed on record, he submitted that the relevant documents such as service report and vakalatnama of the owner were not found on record. He relied upon decision of the Supreme Court in R. Unnikrishnan and Another Vs. V.K. Mahanudevan and Others, AIR 2014 SC 1201 : (2014) AIRSCW 596 : (2014) 1 JT 450 : (2014) 1 SCALE 305 : (2014) 4 SCC 434 : (2014) 2 SCC(L&S) 135 and submitted that the impugned judgment of the Tribunal was vitiated by fraud.

Shri D.P. Dapurkar, learned counsel appearing for respondent Nos. 2 to 6 who are the original claimants supported the impugned judgment and urged that the Tribunal had rightly proceeded with the matter as no written statement was filed by the owner. He further submitted that the witnesses were not aware about the death of the owner and only when an objection was raised before the executing Court, such knowledge was obtained. He denied the submission as made that there was a fraud played while deciding the said proceedings. He relied upon decision of the Rajasthan High Court in Badamilal vs. Harshvardhan AIR 1994 Rajasthan 9 and decision of the Himachal Pradesh High Court in Ram Nath Vs. Ramku and Another, (2012) ACJ 1383 .

Shri R.P. Masurkar, learned counsel appeared for respondent No. 1 and Shri R.D. Bhuibhar, learned counsel appeared for respondent No. 7. The following point arises for consideration in the appeal :

" Whether the award passed by the Claims Tribunal is a nullity having been passed against a dead person ? "

I have considered submissions as made and I have also gone through the documents filed on record. The Claim Petition was filed on 03/01/2005 while as per records, it is stated that the Tribunal proceeded on 09/02/2005 by treating the driver and owner as duly served in terms of service reports at Exhibits-11 and 12. On 21/03/2005 the roznama indicates that vide Exhibit-13 vakalatnama came to be filed by counsel on behalf of owner of the vehicle. The owner of the vehicle died on 02/09/2006 and the proceedings came to be decided on 23/01/2009.

The aforesaid facts indicate that when the Claim Petition came to be decided, the order came to be made against the owner who had already expired. It is trite law that an order passed against the dead person is a nullity. The same is however subject to the exceptions provided under Order 22 Rule 4(4) and Order 22 Rule 6 of the Civil Procedure Code (for short, the Code). Under provisions of Order 22 Rule 4(4), the Court can exempt the plaintiff from substituting the legal heirs of the defendant who has failed to file written statement or having filed the same has failed to appear and contest the proceedings. The same is not automatic and an order in that regard is required to be passed by the Court as held in Zahirul Islam Vs. Mohd. Usman and Others, (2003) 1 DMC 192 : (2002) 10 JT 569 : (2003) 1 SCC 476 : (2002) 5 SCR 712 Supp : (2003) 1 UJ 210 . Moreover, such exemption is required to be obtained/granted before pronouncement of the judgment as held by the Supreme Court in T. Gnanavel Vs. T.S. Kanagaraj and Another, AIR 2009 SC 2367 : (2009) 3 JT 196 : (2009) 4 SCALE 482 : (2009) 14 SCC 294 : (2009) 3 SCR 451 : (2009) 2 UJ 999 : (2009) AIRSCW 3540 : (2009) 4 Supreme 302 .

The decision of the Rajasthan High Court in Badamilal (supra) does not indicate that any order was previously passed exempting the plaintiff from bringing on record the legal heirs of the deceased defendant. Hence for aforesaid reasons, the decision relied upon in the case of Badamilal (supra) would not be applicable.

In the present case as the claimants were not aware about the death of the owner, there was no occasion for the Court to pass any order under the provisions of Order 22 Rule 4(4) of the Code. Similarly provisions of Order 22 Rule 6 of the Code would not apply as the owner had expired prior to commencement of hearing of the Claim Petition. It is thus clear that the judgment having been passed against a dead person, the same was a nullity. This view is supported by the decision of the Supreme Court in Amba Bai and Others Vs. Gopal and Others, AIR 2001 SC 2003 : (2001) 1 JT 223 Supp : (2001) 4 SCALE 41 : (2001) 5 SCC 570 : (2001) 3 SCR 551 : (2001) 2 UJ 1394 : (2001) AIRSCW 1996 : (2001) 4 Supreme 165 . Similarly, aforesaid conclusion is also supported by the observations made in the decision in Ram Nath (supra).

Though it was urged on behalf of the learned counsel for the present appellants that due to absence of necessary record on account of its destruction, service of summons on the owner was never effected nor did he has any occasion to engage any counsel. These submissions are countered by the learned counsel for the claimants by relying upon the roznama of the case. In the facts of the present case, as the judgment was passed against a dead person, it is not necessary to record any finding on the submission that the proceedings stand vitiated on account of fraud. Part of the record has been shown to be destroyed and hence the material now available on record is insufficient to record any finding in that regard.

Hence the point as framed is answered by holding that the impugned judgment stands vitiated as it is passed against a dead person. In view thereof, the following order is passed :

(i) The judgment dated 23/01/2009 passed in M.A.C. No.7 of 2005 is set aside without going into its merits on the ground that it was passed against a dead person.

(ii) The proceedings are remitted to the Claims Tribunal, Amravati for fresh adjudication in accordance with law.

(iii) Parties undertake to appear before the Claims Tribunal on 22/04/2015. As the proceedings pertain to year 2005, the same are expedited and same shall be decided by the end of December 2015.

(iv) The record and proceedings be sent back forthwith.

(v) In the facts of the present case, as the present appellants were required to challenge the impugned judgment that was passed against a dead person, the amount of statutory deposit of Rs.25,000/- shall stand remitted to the Claims Tribunal, Amravati. Aforesaid amount shall be duly adjusted while deciding the Claim Petition.

(vi) Needless to state that in the present facts, the Tribunal shall consider the aspect of delay in bringing on record legal heirs of the owner in the light of the facts of the case.

(vii) The First Appeal is allowed in aforesaid terms with no order as to costs.