Rohtash and Others vs Mewa Devi and Others

Rakesh Kumar Jain, J.

This petition is against the order dated 13.02.2014 passed by the Motor Accident Claims Tribunal, Narnaul (here-in-after referred to as the "Tribunal"). The brief facts of the case are that a claim petition under Section 110 of the Motor Vehicles Act, 1939 (here-in-after referred to as the "Act") was filed by the heirs of Phool Singh on account of his death in the accident dated 28.10.1985. The predecessors-in-interest of the present petitioners, namely, Suraj Bhan was impleaded as respondent No. 4 being owner of the offending vehicle. It is recorded by the Tribunal in the award that notice was issued to respondent No. 4, but he could not be served, therefore, he was served through publication, but despite that he did not appear and proceeded against ex-parte. The Tribunal, vide its award dated 28.04.1988, assessed the compensation @ Rs. 1,44,000/- against respondents No. 1 and 4, along with interest @ 12% per annum from the date of the application till its realization.

Suraj Bhan (respondent No. 4) filed an application under Order 9 Rule 13 of the Code of Civil Procedure (here-in-after referred to as the "CPC") for setting aside the ex-parte award, but it was dismissed on 06.10.1993 by the Tribunal. He filed CR No. 3800 of 1993 before this Court titled as "Suraj Bhan v. Mewa Devi and others". The revision petition was allowed setting aside the ex-parte proceedings and permitted the petitioner to contest the petition on merits, subject to payment of Rs. 5,000/- as costs. The operative part of the order reads thus:--

"Consequently, the present revision petition is allowed. The order passed by the learned Motor Accident Claims Tribunal, dated 06.10.1993 is set-aside subject to payment of Rs. 5,000/- as costs. It is directed that the petitioner shall filed his written statement before the learned Motor Accident Claims Tribunal on 05.03.2007 and also to pay the aforesaid costs. In case the petitioner fails to pay the costs or to file the written statement, the learned Tribunal shall proceed with the decision of the claim application on merits, in accordance with law. Since the matter is of since long, the learned Tribunal is directed to decide the same expeditiously after giving two opportunities to each of the parties to lead their respective evidence.

Parties through their parties are directed to appear before the learned Tribunal on 05.03.2007."

Despite the aforesaid order, no-one appeared before the Tribunal and the following order was passed on 13.03.2007:--

"Award dated 28.04.1988 was rendered in claim petition titled as Smt. Meva Devi and seven others v. Kanhiya Lal and three others,. Only respondent No. 2 had contested the petition whereas other respondents were ex-parte. Suraj Bhan (respondent No. 4 in the original claim petition) against whom ex-parte Award had been made, had made an application under Order IX Rule 13 read with Section 151 CPC for setting aside the ex-parte Award against him. This application was contested. Receiving evidence from the parties and providing a hearing through learned counsel, this application was dismissed on 06.10.1993. the applicant Suraj Bhan had moved the Hon''ble High Court in Civil Revision. Vide order dated 24.01.2007, the Hon''ble High Court had set aside the ex-parte Award dated 06.10.1993 against the respondent Suraj Bhan subject to payment of costs of Rs. 5000/- The applicant respondent was to furnish his written statement before the Motor Accident Claims Tribunal on 05.03.2007 after payment of costs. In case of failure in payment of costs or in filing written statement, the matter was to proceed further in accordance with law.

Neither of the parties or their counsel made appearance on 05.03.2007 in compliance of the order of Hon''ble High Court. Record of the Award as also of dismissal of the application of Suraj Bhan under Order IX Rule 13 CPC along with copy of the order passed by the Hon''ble High Court has been received. Many calls have been given. Neither the parties nor their counsel have come up. As has already been noticed that the parties/their counsel were to make appearance on 05.03.2007 in compliance of order dated 24.01.2007 of the Hon''ble High Court, but none has made appearance even then.

When the parties have not appeared and cost of Rs. 5000/- subject to payment of which, the ex-parte Award was set aside against applicant-respondent No. 4, has not been paid by the respondent No. 4 with due deference to the order of the Hon''ble High Court dated 24.01.2007, the earlier Award remains valid in accordance with law. It was only, on appearance of the applicant-respondent No. 4 i.e. Suraj Bhan and on payment of costs by him, (subject to which the ex-parte Award was set aside) the Award was to be set-aside. Neither the respondent appeared nor paid the costs. Thus with due deference to the order dated 24.01.2007 of the Hon''ble High Court, it does not change the position and earlier Award tendered by the MACT, Narnaul remained valid even against respondent No. 4. File be consigned to the record room."

Since Suraj Bhan had already died, therefore, being the successors-in-interest of Suraj Bhan, the petitioners filed another application under Order 9 Rule 13 of the CPC taking the plea that they were not aware of the order passed by this Court on 24.01.2007 because during the pendency of the revision petition, Suraj Bhan died on 14.02.2002 and his son, namely, Mahender had already expired and out of his two sons, namely, Rohtas and Roshan, Roshan also expired on 01.01.2013, whereas legal heirs of Roshan are his widow and minor children. The application was contested by the respondents and the Tribunal passed the impugned order on 13.02.2014 dismissing the application.

Learned counsel for the petitioners has argued that while the Civil Revision No. 3800 of 1993 was pending in this Court, Suraj Bhan had expired on 14.02.2002 and the revision petition was decided on 24.01.2007 and when the order was passed on 13.03.2007, none of the parties either for the petitioners or the respondents were present which itself shows that they were not aware of the order passed by the High Court on 24.01.2007, therefore, the conditional order could not be complied with. The second application for setting aside the ex-parte decree has been dismissed only on this ground that the order passed by the High Court dated 24.01.2007 was a conditional order and since the order passed by this Court has not been complied with, therefore, there is no jurisdiction with the Tribunal to pass a different order. It is submitted that out of the petitioners herein, petitioners No. 2 to 4 are the widow and minor children of Roshan S/o. Mahender and could not have pursued the case, therefore, it is prayed that order of the learned Tribunal be set aside and the application filed under Order 9 Rule 13 of the CPC be retired in accordance with law.

On the other hand, counsel for the respondents has vehemently argued that if Suraj Bhan had expired in 2002 and the revision petition was disposed of in January 2007, it was for the petitioners to look after their litigation as Mahender son of Suraj Bhan left behind two adult sons, namely, Rohtash and Roshan, out of whom Roshan had expired on 01.01.2013, therefore, it cannot be believed that they had no notice about the order passed by this Court on 24.01.2007. It is further submitted that the presence of the respondents was not necessary on 13.03.2007 as the condition was imposed upon the petitioners to comply with the order passed by this Court on 24.01.2007. It is further submitted that even if Roshan had expired and left behind his widow and two minor children, his brother Rohtash was still there who could have pursued the litigation. Therefore, it is only a lame excuse on the part of the petitioners who do not want to make the payment to the claimants of the amount awarded by the Tribunal.

After hearing learned counsel for the parties and examining the record, I am of the considered opinion that this revision petition must fail. There is no dispute that the Tribunal had passed an ex-parte award against Suraj Bhan who himself had challenged that award by filing an application under Order 9 Rule 13 of the CPC and after loosing in the application, filed Civil Revision No. 3800 of 1993 before this Court. It is altogether different that he died unfortunately on 14.02.2002, but still the revision petition was allowed on 24.01.2007 with a condition of payment of costs of Rs. 5,000/-. The parties were directed to appear before the Tribunal on 05.03.2007, hut on that day, no-one for the petitioners had appeared and the case was adjourned to 13.03.2007 and again on that day, the petitioners were absent and ultimately the award of the Tribunal was held valid. Although there is no provision for filing application under Order 9 Rule 13 of the CPC again, but still the legal heirs of Suraj Bhan have filed the application and the ground taken therein is that Suraj Bhan died during the pendency of the revision petition and were not aware about its result. Nothing has been brought on record in this regard. This aspect of the matter cannot be believed even if no-one had appeared on behalf of the respondents because it was for the petitioners to appear and tender the cost before the Tribunal on the date of their appearance and in their absence, there was no other alternative with the Tribunal but to maintain the award. Resultantly, the Tribunal has rightly found that since the petitioners had failed to comply with the order passed by this Court on 24.01.2007, the award cannot be tinkered with. In view of the aforesaid discussion, the present revision petition is hereby dismissed being denuded of any merit.