DALU TELI Vs. VINOD LOHAR

JUDGEMENT

(1.) The S.B. CMA No. 1933/2016 has been preferred by the appellants (Owner and Driver) under Sec. 173 of the Motor Vehicles Act, 1988 (hereinafter as 'the Act') against the judgment and award dtd. 27/5/2016 passed by learned Judge, Motor Accident Claims Tribunal No. 1, Udaipur (hereinafter as 'the learned Tribunal') in MAC Case No. 1142/2010, whereby the learned tribunal has awarded Rs.2,25,000.00 along with interest @ 9% p.a. to the claimants and held the owner liable to pay the compensation and also the insurance company has been exonerated and given liberty to recover the amount already paid by it from the owner of the vehicle. The S.B. Cross Objection (Civil) No. 83/2021 has been filed by the claimants, seeking enhancement by way of filing an application under Order 41 Rule 22 of the Code of Civil Procedure, 1908. For the sake of convenience facts of the appeal (S.B. CMA No. 1933/2016) are being taken illustratively and the appellant No. 1 will be referred to as appellant/driver, the appellant No. 2 will be referred to as the appellant/owner, the claimants would be referred to as respondents/claimants when referred to as collectively (and as respondent No. 1/claimant and respondent No. 2/claimant, when referred to in their individual capacity) and the insurance company would be referred to as the respondent/insurance company.

(2.) Brief facts of the case are that on 18/6/2009, Seema went to Nayon-Ka-Kuan for drinking water, which is situated at main road Khartana village. And at around 12:30 PM the car bearing registration No. RJ-27-CB-1736 (herienafter as 'the offending vehicle') allegedly being driven by the appellant No. 1/driver in rash and negligent manner came from the direction of Sanwad and hit Seema, and as a result of the accident Seema (hereinafter as 'the deceased-child') died in the accident. The FIR No. 98/2009 (Ex.6) was lodged by the respondents/claimants on 18/6/2009 at around 03:20 PM. However, the police after investigation submitted Final Report (Ex.5) on 14/8/2009 against unknown vehicle. Aggrieved by this, a protest petition was preferred before the Judicial Magistrate (First Class), Maavli, Udaipur, and the Magistrate vide order dtd. 3/5/2010 (Ex.1, hereinafter as 'the cognizance order') quashed the Final Report (Ex.5) and while taking cognizance, the Magistrate issued bailable warrant against the appellants herein. Aggrieved by the same, the appellants herein preferred Criminal revision petition No. 21/2010 against the cognizance order (Ex.1) on 1/6/2010 before the Additional Sessions Judge(III), Udaipur and the learned Sessions Judge vide order dtd. 15/6/2011 (Ex. NA8) set aside the Cognizance order. Meanwhile, the respondents/claimants on 3/10/2010 filed MAC Case No. 1142/2010 before MACT, Udaipur against the appellants and the respondent/insurance company claiming compensation on account of death of the deceased-child. In the said claim petition, despite due service, the appellants failed to appear before the MACT, Udaipur. Therefore, ex-parte proceedings were initiated against them & the MACT, Udaipur vide judgment and award dtd. 6/11/2012 (hereinafter as 'the ex-parte award') awarded compensation of Rs.1,50,000.00 along with interest @9% from the filing of the claim petition (i.e. 3/10/2010) to the respondents/claimants and held appellants liable to pay the compensation and also gave a direction of pay and recover to the respondent/insurance company to satisfy the award with liberty to respondent/insurance company to recover the same from the appellants. Thereafter, an application (Case No. 2/2013) under Order 9 Rule 13, Code of Civil Procedure, 1908 (hereinafter as 'CPC') was filed by the appellants against the ex-parte award before MACT-I, Udaipur, whereby the learned MACT-I, Udaipur vide order dtd. 24/4/2014 allowed the application filed by the appellants under Order 9 Rule 13 and set aside the ex-parte award and also directed to decide the MAC Case No. 1142/2010 on its own merit after hearing the appellants.

(3.) Subsequently, the appellants filed their reply to the claim petition and denied the averments made therein and averred that the offending vehicle was not involved in the accident and that in the FIR (Ex.6) lodged by the respondents/claimants, vehicle registration number has not been mentioned and also the cognizance order passed against the appellants has already been set aside by the court.