BALDEV RAJ Vs. RISHI KUMAR

JUDGEMENT

(1.) THE above revision petition has been filed against the order of learned District Judge (Forests), Shimla, in Execution Petition No. 1 /S/10 of 1998 wherein the learned Judge in the Court below chose to overrule the objection to the execution proceedings and ordered further action in the execution proceedings to be pursued. The objection taken by the present petitioner who was driver of the vehicle which was involved in the accident, which was the subject-matter of the claim petition for compensation filed in M. A.C.T. No. 64-S/2 of 1987 on the file of Motor Accident Claims Tribunal (II), Shimla was two-fold. Before dealing with the said objection, it may be pointed out that the respondent No. 1 in the present revision petition was a claimant before the Motor Accident Claims Tribunal and he had claimed compensation in the sum of Rs. 2,00,000/- on account of injuries sustained by him, as a result of the accident caused by the petitioner as a driver of the vehicle which belonged to respondent No. 2 before the Claims Tribunal. The Insurance Company was the respondent No. 3 before the Tribunal below. By an award dated 12.10.1987 after fixing the liability for the accident on the driver and owner of the vehicle, a sum of Rs. 1,10,000/- has been awarded as compensation. From the award, it would be seen that the liability was fixed jointly and severally upon all the respondents, vide para 8 of the award and the Insurance Company in view of the coverage against third party risks has also been directed to deposit the amount.

(2.) AGGRIEVED against the award, the Insurance Company filed F.A.O. (MVA) No. 21 of 1989 before this Court. The notice in the proceedings before this Court meant for the petitioner who was arrayed as respondent No. 2, as it could be seen from the records and as clarified by the learned Counsel for the petitioner, on a query being put by me, was served on the mother of the petitioner, though it will now be stated for the petitioner that he was living away from the mother at a different station. It is seen from the award passed by the Tribunal below as also the address given in the memorandum of grounds filed in the F.A.O. before this Court, the same and only known address has been given and apparently since the notice has been received by the mother of the petitioner, as it is now stated without demur, there was nothing for this Court to doubt about the correctness of the service. In appeal filed by the Insurance Company this Court by an order dated 26.12.1994 considered the only question raised, namely, that the liability of the Insurance Company who was appellant before this Court was confined to Rs. 50,000/- only and that finding that in view of Section 95(2)(b)(i) of the Motor Vehicles Act, 1939 it was to be so and the liability of the Insurance Company has to be confined to Rs. 50,000/- only in all, to that extent the award against the Insurance Company came to be set aside and modified. It is while doing so incidentally it has to be clarified by the Division Bench which dealt with the appeal that since the liability of the Insurance Company was to be only to the extent of Rs. 50,000/-, the balance will be recovered from the other respondents before the Tribunal below and that the excess amount deposited by the Insurance Company would be refunded to it with interest that accrued thereon. At the expense of repetition it may be pointed out that clarificatory portion of the order by the Division Bench was only of an obvious resultant position flowing from the result of the appeal by the Insurance Company being partly accepted by this Court and it, therefore, did not involve any adjudication afresh against the petitioner or the owner of the vehicle. So far as the liability of the owner of the vehicle as also of the petitioner who was the driver were concerned, they were already held liable for compensation by the Tribunal below in the award passed by it.

(3.) AGGRIEVED , the above revision petition has been filed. Mr. G.C. Gupta, the learned Counsel for the petitioner while reiterating the two objections raised before the Court below contended that the judgment of the Division Bench passed behind the back of the petitioner and also against a dead person remained a nullity and this objection could be raised, pursued and deserved to be considered on its merit by the Court below and the conclusions arrived at by the Court below that it is precluded from going into the same are not tenable in law and, therefore, interference is called for with the order of the Court below. In support of the stand taken for the petitioner, learned Counsel relied upon the decisions in Sabitri Dei v. Sarat Chandra Rout ; Kesar Singh v. Sadhu ; and Ashok Transport Agency v. Awadhesh Kumar .