F.A.O. No.4360 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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F.A.O. No.4360 of 2007
Date of Decision:07.11.2008
Ashok Kumar
.....Appellant
Vs.
Jasbir Kaur and others
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. H.K. Arora, Advocate for the appellant.
Mr. M.S. Lobana, Advocate for respondent No.5.
Mr. Vivek Singal, Advocate for respondent No.6.
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JUDGMENT
HARBANS LAL, J. (Oral)
This appeal is directed against the award dated 22.3.2006
passed by the Motor Accident Claims Tribunal, Jalandhar vide which an
amount of Rs.4,05,000/- has been awarded to the claimants as compensation
with the observation that “the liability of respondents No.1 to 3 to pay the
amount shall be joint and several. However, it will be open to the insurer to
recover the said amount either from the insured, i.e., Ashok Kumar or from
the transferee of the vehicle, i.e., Hari Singh, respondent No.2.”
The brief facts giving rise to the claim petition are that on
15.10.2004, Guridal Singh since deceased was approaching from Village
Ramidi on his scooter bearing registration No.PB-07-L-6397 followed by
scooter bearing registration No.PB-09-B-9167 being driven by Sarabjit
Singh son of Bakhshish Singh. Around 5:00 P.M., when they neared
Gadhana, Railway Crossing, meanwhile a Maruti Car bearing registration
No. PB-10-AJ-9858 being driven by Gulzar Singh- respondent rashly and
F.A.O. No.4360 of 2007 -2-
negligently came from the opposite direction on a wrong side without
blowing any horn and without applying brakes and hit against the scooter of
Gurdial Singh. As a result of its impact, Gurdial Singh sustained multiple
injuries on his body. He was removed to Beas Hospital by Sarabjit Singh.
He was given first aid and referred to Nayyar Heart Institute & Super
Speciality Hospital, Amritsar where he was admitted on 15.10.2004 and
discharged on 5.11.2004, whereafter he was again admitted in the Sacred
Heart Hospital, Maqsudan on the same day where he remained under
treatment till his death, i.e., 7.1.2005. An FIR bearing No.56 dated
4.11.2004 was got registered under Sections 279/337/338/427 IPC with
Police Station Dhilwan, District Kapurthala. After his death, the offence
under Section 304-A IPC was also added. The deceased aged about 42
years was doing agriculture work apart from dairy farming. His monthly
income was Rs.15,000/-. He is survived by his wife, daughter and son. On
these allegations, this petition was filed for grant of compensation to the
tune of Rs.25 lacs. In their written statement, Gulzar Singh driver and Hari
Singh owner of the offending vehicle denied the accident. As alleged, the
offending car stood insured and that being so, the insurer is liable to pay the
compensation, if any, to be awarded by the Tribunal. Lastly, it has been
prayed that the petition may be dismissed. The National Insurance
Company- respondent in the written statement alleged that Gulzar Singh
was not holding any valid and effective licence at the time of accident and
as such, there is breach of conditions of the insurance policy. Traversing
other facts, prayed for dismissal of the petition.
The following issues were framed:-
1. Whether the death of Gurdial Singh took place in a
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motor vehicle accident due to rash and negligent driving
of Maruti Car bearing No.PB-10-AJ-9858 being driven
by respondent No.1? OPP
2. Whether the applicants are entitled to compensation, if
so to what extent and from which of the respondents?
OPP
3. Whether the respondent No.1 was not holding valid and
proper driving licence at the time of accident? OPR-3
4. Relief.
After hearing the learned counsel for the parties and examining
the evidence on record, the learned Tribunal awarded the amount of
compensation as noticed earlier.
Mr. H.K. Arora, Advocate appearing on behalf of the appellant-
Ashok Kumar strenuously urged that the appellant had sold the offending
vehicle to Narinder Kumar on 19.10.2002 and the delivery was also given to
him on the same day. Subsequently, the documents for the sale of vehicle
were executed on 16.12.2002 between appellant and respondent No.5 – Hari
Singh. The documents of transfer of vehicle in the shape of affidavits were
also delivered to Hari Singh on 24.12.2002 and since 19.10.2002, the
aforesaid respondent was in possession of the vehicle bearing registration
No.PB-10-AJ-9858 and since 24.12.2002, the appellant was not the owner
of the vehicle. The impugned award passed by the learned Tribunal giving
recovery rights to the Insurance Company- respondent No.6 is against the
principles of natural justice as the appellant was never made a party and no
opportunity was ever afforded to him to defend the present case. In spite of
the fact that the said fact was to the knowledge of the respondent- Insurance
F.A.O. No.4360 of 2007 -4-
Company, it did not choose to implead the appellant deliberately nor the
claimants ever did so. The appellant is not liable to pay any amount as the
impugned award has been passed at his back. To add further to it, he was
neither the owner of the offending vehicle nor was in possession of the same
since 2002. The vehicle was insured at the time of the accident. That being
so, only the respondent- Insurance Company is liable to pay the
compensation amount. The appellant learnt about the award only after
receiving the summons from the Motor Accident Claims Tribunal, Jalandhar
in the month of September, 2006 which have been issued on the application
of the respondent- Insurance Company for the recovery of the stated
amount.
Mr. M.S. Lubana representing Hari Singh- respondent urged
with great eloquence that Ashok Kumar- appellant being the registered
owner of the offending vehicle at the material time has been rightly saddled
with the liability to pay the amount of compensation.
I have well considered the rival contentions. A glance through
the array of parties detailed out at the first page of the impugned award
would reveal that Ashok Kumar was not made a respondent in the claim
petition. Learned Tribunal while holding discussion on Issue No.4 (Relief)
held that “the liability of the respondents No.1 to 3 (referring to Gulzar
singh, Hari Singh and the National Insurance Company respectively) to pay
the amount of compensation shall be joint and several. However, it will be
open to the insurer to recover the said amount either from the insured, i.e.,
Ashok Kumar, or from the transferee of the vehicle, i.e., Hari Singh-
respondent No.2.” An identical observation has been made towards the
end of Paragraph No.20 of the award. As emanates from Paragraph No.19
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of the impugned award, the learned counsel for the respondent- Insurance
Company had contended that the Insurance Company is not liable to pay
any compensation as the offending vehicle was got insured by one Ashok
Kumar as per the policy Ex.R.1. The said Ashok Kumar has transferred the
vehicle to Hari Singh- respondent No.2 prior to the date of accident and at
the time of accident, the offending vehicle was owned by Hari Singh not by
Ashok Kumar with whom respondent No.3 entered into contract, and
therefore, the liability of the Insurance Company ceased and now the
amount of compensation can only be recovered from Ashok Kumar who
transferred the offending vehicle to Hari Singh or from Hari Singh,
transferee of the offending vehicle or Gulzar Singh, driver of the offending
vehicle. To me, it appears that it is only on the basis of these arguments,
that Ashok Kumar who was not party to the proceedings has initially been
burdened with the liability to pay the amount of compensation. The
doctrine of `Audi Alteram partem’ contemplates that no one should be
condemned unheard. Here in this case, respondent- Insurance Company has
been given the right to recover the amount of compensation from Ashok
Kumar, who as noted supra, has neither been arrayed as a respondent in the
claim petition nor has been afforded any opportunity of being heard. It is
quite startling and flabbergasting as to how and under what circumstances
and on the basis of what evidence, he has been fastened with such a
liability. It is quite astonishing that the learned Tribunal did not ponder
over this fact even for a little while that the man who is going to be
burdened with the liability is alien to these proceedings and he was never
given any opportunity of hearing. The cardinal canons of natural justice
contemplate that no one should be condemned at one’s back. Thus, from
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whatever angle, the matter may be viewed, this appeal is liable to be
accepted.
In view of the preceding discussion, this appeal succeeds and is
accepted setting aside the impugned award. The matter is remanded back to
the Motor Accident Claims Tribunal, Jalandhar for deciding the matter
afresh after affording due opportunity to Ashok Kumar to file his written
statement and to lead his evidence, if so, desired by him. To bring Ashok
Kumar s/o Surinder Kumar r/o House No.213/1, Street No.2, Nirankari
Street, Miller Ganj, Ludhaina on record, the National Insurance Company,
G.T. Road, Dhandari Kalan, Ludhiana- respondent shall move an
application. Counsel for the respondents Hari Singh as well as National
Insurance Company through their respective counsels are directed to put in
their appearance before the learned Tribunal on 23.12.2008. The Registry is
directed to transmit a copy of this judgment to the Motor Accident Claims
Tribunal, Jalandhar.
November 07, 2008 ( HARBANS LAL ) renu JUDGE