New India Assurance Company Limited vs Firaoja And Others

Ajay Mohan Goel, J

As per report of the Registry, respondent No. 2 stands duly served. As despite service, none has put in appearance on behalf of respondent No. 2, said respondent is ordered to be proceeded against ex parte.

By way of present appeal, the appellant has assailed the Award dated 12.01.2018, passed by the Court of learned Motor Accident Claims Tribunal­II, Solan, District Solan, H.P. in Claim Petition No. 17­NL/2 of 2013, titled as Firaoja Vs. M/s Ritu Logistics and others, vide which, the Claim Petition was allowed by the learned Tribunal in the following terms:

"13. Judged in the light of my findings on issues, the petition of the petitioner is hereby allowed and the petitioner is hereby awarded a sum of Rs.10,49,200/­ with interest @ 8% per annum jointly and severally against the respondents from the date of filing of the petition till deposit of the awarded amount by the respondent No. 3 i.e., insurance company. It is hereby directed that respondent No. 3 i.e., insurance company shall deposit award amount within one month from today. The amount of compensation awarded in favour of the pettioner be kept in nationalized bank in the shape of fixed deposit but no loan, advance or withdrawal be permitted without permission of the Tribunal. On the deposit of award amount, same shall be invested immediately by the Naib Nazir of this Court in the name of Tribunal initially for a period of one year in the Nationalized Bank under automatic renewal scheme subject to any other directions issued by the Tribunal qua the share of petitioners. Memo of Costs be prepared accordingly. File after its due completion be consigned to the record room."

Learned counsel for the appellant submits that the Award passed by the learned Tribunal is a nullity, as the same was passed in ignorance of the factum of the death of respondent No. 2 before the learned Tribunal, namely, Khatid, son of Sh. Abdul Ajij. By placing reliance upon the judgment of the Hon'ble Supreme Court in Gurnam Singh (dead) through legal representatives and others Vs. Gurbachan Kaur (dead) by legal representatives (2017) 13 Supreme Court Cases 414, he submits that in view of the said fact, the Award be set aside and the matter be remanded back to the learned Tribunal for adjudication afresh, after taking into consideration the effect of the death of respondent No. 2 before it. He further submits that the claim petition was instituted in the year 2013 and respondent No. 2 died on 13th July, 2017, i.e., before the Award was passed by the learned Tribunal.

I have heard learned counsel for the appellant as also represented parties and have also gone through the impugned Award as well as other documents appended with the appeal.

It is not in dispute that the Award was passed by the learned Tribunal ignoring the death of one of the respondents, i.e., respondent No. 2 before it. Incidentally, respondent No. 2 was the driver of the vehicle which was involved in the incident, which led to the filing of the Claim Petition in issue.

Accordingly, as it is a matter of record that the Award was passed by the learned Tribunal against a dead person by ignoring the factum of death of respondent No. 2 before the learned Tribunal, this appeal is allowed. Award dated 12.01.2018, passed by the Court of learned Motor Accident Claims Tribunal­II, Solan in Claim Petition No. 17­NL/2 of 2013 is set aside and the Claim Petition is remanded back to the learned Tribunal for adjudication afresh, after taking into consideration the effect of the death of respondent No. 2, namely, Khatid before it during the pendency of the Claim Petition.

Appeal stands disposed of in above terms, so also pending miscellaneous applications, if any.