The New India Insurance Company Limited v. Mohinder Rai & Ors.

Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Rajesh K. Sharma, Advocate, for the appellant. Mr. Inderjit Sharma, Advocate, for respondent no. 4. Rajesh Bindal J. Challenge in the present appeal is to the award of the Motor Accident Claims Tribunal, Chandigarh (hereinafter to be referred as “the Tribunal”) dated

3.10.2006. Briefly, the facts of the case are that on 12.1.2003 at about 8.30 a.m., when Sonia Devi was doing labour work in Gulmohar Society, Block-2, in the area of Dera Bassi, Harnek Singh respondent no. 4 came there on Truck bearing No. HR-37A-7551 loaded with earth. After unloading the truck, he put his truck in back gear and without caring for others started reversing it at a fast speed in a rash and negligent manner. In this process, Sonia Devi was crushed to death under rear tyre of the truck. Thereafter the claimants filed petition which was allowed vide award dated 3.10.2006, which is impugned in the present appeal by the Insurance company. Learned counsel for the appellant submitted that initially in the petition filed by the claimants the United India Insurance Company Limited, SCO No. 804, NAC Manimajra, UT Chandigarh, was impleaded as respondent no. 3 as insurer of Truck No. HR-37-A-7551, which was allegedly involved in the accident. Later on, application dated 16.8.2004 was filed by the United India Insurance Company Limited stating therein that, in fact the vehicle in question was not insured with it but was insured with the New India Assurance Company Limited. No order was passed on that application. Subsequent thereto, application dated

2.3.2005 was filed by the claimants seeking deletion of name of United India Insurance Company Limited and impleading the New India Assurance Company Limited, SCO No. 804, NAC, Manimajra, UT Chandigarh, as respondent no. 3. FAO No. 1106 of 2009 2 The aforesaid application was allowed by the learned Tribunal vide order dated

5.3.2005 and amended cause title was taken on record. Thereafter, no notice was issued to the appellant company. Ultimately on 21.2.2006, it was proceeded against ex-parte and subsequently award was passed. The fact remains that the appellant company was never served at any stage of the proceedings. The appellant company could not defend itself by raising the pleas available to it. The appellant came to know of the award when in execution proceedings the amount was withdrawn from its bank account. Learned counsel for respondent no. 4 very fairly stated that as the arguments stated by the learned counsel for the appellant are borne out from the record, he is unable to controvert the same. Heard learned counsel for the parties and perused the relevant referred record, a perusal of which shows that initially it was United India Insurance Company Limited which was impleaded as respondent in the claim petition. However, later on, the application was filed to implead the New India Assurance Company Limited. Though vide order dated 5.3.2005 the application was allowed and amended cause title was taken on record but no notice was directed to be served on the newly added respondent and it was directed to be proceeded against ex-parte vide order dated 21.2.2006. Orders dated 5.3.2005 and 21.2.2006 are reproduced as under:- “In the wake of an objection from New India Insurance Company that the offending vehicle was not regd. with it. The claimant has moved an application u/o1 rule 10 CPC so as to now provide correct particulars of res. no. 3, the petitioner being dominus litus, his application is allowed. Amended title placed on the file. Claimant has also moved another application supported by a duly sworn affidavit asserting that address of res. no. 1 as provided by him as correct & last known address of the accused as has been taken from the file of a case arising out of FIR relating to this very accident. It is further averred that res. no. 1 is aware of the proceedings against him and is intentionally avoiding to receive the process and cannot be served through ordinary process. Perusal of the file confirming that process upon res. no. 1 is being issued for more than a year and has not been executed with reports of non-availability of res. no. 1, on the given address. Thus, I am satisfied that he can FAO No. 1106 of 2009 3 not be served through ordinary process and as a last resort is ordered to be summoned by way of munadi and affixation as well as publication of notice in the columns of “Chardi Kalan” Patiala returnable on

13.5.05. Publication charges and munadi fee be deposited within 7 days. Sd/- ADJ/05.03.05.” “No one is responding to the calls of the case on behalf of respondents no. 2 and 3 as a result whereof they are ordered to be proceeded against ex-parte. Now for evidence of petitioner, the case stands adjourned to

17.5.2006. Sd/- MACT/ February 21, 2006.” Subsequently, even award was also passed. The appellant came to know about the award only after its bank account was attached and the amount of compensation recovered from it. This certainly has resulted in violation of procedure established by law besides principles of natural justice. For the reasons mentioned above, the impugned award of the learned Tribunal is set aside and the matter is remitted back to the Tribunal for fresh decision after taking into consideration the reply to be filed by the appellant to the claim petition and the evidence to be led. The parties through their counsels are directed to appear before the Tribunal on 3.4.2010. Unrepresented parties be summoned by the Tribunal after issuing notice(s) to them. However, it is made clear that the amount of compensation, if any, already paid to the claimants shall not be recovered back from them in view of the setting aside of the award. They shall abide by the final determination of the compensation by the Tribunal. The appeal is disposed of accordingly.

15.3.2010 ( Rajesh Bindal) Judge