Yoginder Singh vs Nand Kali and Others

Dev Darshan Sud, J.—The appeal and this application have been taken up together for decision.

The case urged by the Appellant herein is that he has not been served before the trial Court and that the summons on the record do not bear his signatures. If that be so, it is evident that a fraud has been practiced on the Appellant herein. Second ground urged is that the vehicle involved in the accident was duly insured and in this event, the liability would be that of the Insurance Company to substantiate this plea, the Appellant herein has placed on record a copy of the insurance policy as Annexure:A1 with CMP. No. 1035 of 2010.

Adverting to the question of fraud, the law now is well settled. Fraud avoids all judicial acts. It can be set up as a ground in any proceedings before any court of law challenging the validity of the order passed. I may also observe that the Tribunal is not helpless in recalling its own judgment in case it is found that the Appellant has not been served and his signatures fabricated. (See: United India Insurance Co. Ltd. Vs. Rajendra Singh and Others,

Both these questions i.e. non-service of the Appellant herein as also the fact as to whether the vehicle involved in the accident was insured or are to be established by leading evidence before the learned Tribunal. In this event, the application being CMP.(M). No. 1391/2010 is allowed, the delay condoned and the appeal remanded. The appeal is disposed of with the directions that:

(a) It will be open to the Appellant herein to move an appropriate application before the learned trial Court to show that he has not been served in accordance with law.

(b) The vehicle involved in the accident was insured and in that event it is not his liability. For this purpose, the Tribunal shall give an ample opportunity to the Appellant herein to establish his case by leading evidence. No evidence will be allowed to challenge the award already made granting compensation to the extent of Rs. 1,20,000/- . The adjudication is limited only to the two questions above in order to establish that the liability is not that of the Appellant herein but that of the Insurance Company.

Appeal is disposed of. Let the record of the case be sent back to trial Court immediately.

In case the Appellant herein deposits the entire awarded amount on the first date of hearing before the learned Tribunal which is fixed for 6th July, 2011, the execution proceeding shall remain stayed.