OM PRAKASH Vs. RUKMINI DEVI

JUDGEMENT

(1.) These nine FAFOs and two writ petitions arise out of an accident which took place on 14-6-70 in District Muzafarnagar. Since the subject matter involved in these cases is common, we consider it proper to dispose of all these cases by a common order.

(2.) On 14-6-1970 a marriage party left Muzafarnagar for Rishikesh in a stage carriage but No. USL 7134 which belonged to the U. P. State Road Tran-sort Corporation When the vehicle reached near Purqazi outpost, another bus having registration DLP No. 3692 was coming from opposite, direction, it collided head on with the Corporation's bus as a result of which several persons received injuries. Virendra Kumar and Sewak Ram who were members of the marriage party succumbed to their injuries while Raghunath Das received injury and he was confined to Hospital. The dependents of the two deceased persons as well as Raghunath Das the injured person filed three separate claim petitions claiming compensation from the owners of the vehicles and the Assurance Company. The owners of both the vehicles as well as Assurance Company filed their written statement contesting the claim petitions. On 12th July, 1970 the Motor Accidents Claims Tribunal fixed 30th July, 1970 for evidence. On that date the claimants were present along with their counsel but none appeared on behalf of the Assurance Company and the counsel appearing for the owner of the vehicle DLP No. 3692 withdrew from the proceedings saying that he had no instructions from his clients. The Tribunal proceeded ex parte against the Assurance Company as well as against the owner of the vehicle DLP No. 3692. The evidence of the claimants as well as of the U. P. State Road Transport Corporation were recorded and arguments were heard. The Tribunal by its award dated 5-8-1976 held that Smt. Rukmini Devi and others were entitled to receive a sum of Rs. 1,25,000/- as compensation for the death of Virendra Kumar, and Parvin Kumar claimant was entitled to a sum of Rs. 36,000/- for the death of Sewak Ram. The Tribunal further held that Raghunath Das was entitled to a sum of Rs. 30,000/- as compensation for the injuries received by him in the accident. The Tribunal further awarded interest to the claimants at the rate of 6 per cent per annum from the date of filing of the claim petition. No compensation was awarded against the U. P. State Road Transport Corporation on the finding that the driver of the Corporation's vehicle was not at fault, instead the accident occurred on account of the rash and negligence of the driver of vehicle No. DLP 3692 and as such the owner and the insurer of that vehicle were liable to pay compensation to the claimants.

(3.) The new India Assurance Co. the successor of the Insurance Co. which was the insurer of the vehicle having registration No. DLP 3692 as well as the owner of that vehicle filed application purporting to be under Order 9, Rule 13 of the Civil P. C. before the Tribunal for setting aside the ex parte award dated 5-8-1976. The claimants contested, the applications. The Tribunal by its order dated 18-9-1976 rejected the applications and refused to set aside ex parte award on the finding that the insurance Company as well as the owner failed to make out sufficient cause for their absence before the Tribunal on 13th July, 1976 fixed for hearing of the claim petitions. The Assurance Company thereupon filed three FAFOs Nos. 577, 578 and 579 of 1976 against the order of the Tribunal dated 18-9-1976 refusing to set aside the ex parte award. The Assurance Co. further filed three FAFOs Nos. 540, 541 and 542 of 1976 against the award dated 5-8-1976 under Section 110-D of the M. V. Act 1939. The owners of the vehicle DLP 3692 also filed three FAFOs Nos. 519, 520 and 521 of 1976 under Section 110-D of the M. V. Act, hereinafter referred to as the Act against the award dated 5-8-1976. The New India Assurance Company further filed three writ petitions in this court under Articles 226/227 of the Constitution which were registered as writ petitions Nos. 4866, 4867 and 4885 of 1976 challenging the validity of the order of the Tribunal dated 18-9-1976 refusing to aside ex parte award and dismissing the application of the Assurance Company under Order 9, Rule 13 of the Civil P. C. The Writ petition No. 4867 was dismissed by this court on 7-5-1978 and the remaining two writ petitions have been listed for hearing along with the appeals. Since nine appeals and two writ petitions arise out of the same subject matter and involve the same point, we have considered it proper and desirable to dispose of the same by a common order.