Patna High Court - Orders
Binay Kumar Singh vs Jai Nandan Rai & Ors. on 23 April, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.736 of 2009
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Binay Kumar Singh S/O Late Harideo Singh R/O Village- Karlahiya, P.S.-
Runi Saidpur, Distt. - Sitamarhi
.... .... Opposite Party ........ Appellant
Versus
1. Jai Nandan Rai S/O Late Ram Chandra Rai R/O Village- Basudeo
Chapra, P.S.- Minapur, Distt. - Muzaffarpur
2. Baby Devi W/O Jay Nandan Rai R/O Village- Basudeo Chapra, P.S.-
Minapur, Distt.- Muzaffarpur
..........Claimants ....... Respondents ..... Ist Set
3. The Manager, Allahabad Bank, Branch- Mahindwara, P.S.- Runisaidpur,
Distt. - Sitamarhi
........ Opposite Party .... Respondent IInd Set
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Appearance :
For the Appellant/s : Mr. Shanti Kumar
Mr. Dhananjay Kr. Tiwary
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
ORAL ORDER
12 23-04-2012Heard Sri Shanti Kumar, learned counsel for the appellant/owner of the offending vehicle, Sri Suraj Narayan Yadav, learned counsel, appearing on behalf of Respondent No. 1 & 2 / claimants and Dr. Binod Kumar Jha, learned counsel, appearing on behalf of Respondent No. 3 / Allahabad Bank.
The present appeal under Section 173(I) of the Motor Vehicle Act, 1988 (hereinafter referred to as the "M.V. Act"), has been preferred against the judgment dated 17th September, 2008, and award dated 27.09.2008, passed in Claim Case No. 164 of 2007 by the learned 9th Additional Motor Vehicle Accident Claims Tribunal, Muzaffarpur (hereinafter referred to as the "Claims 2 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012 2 / 11 Tribunal"), whereby, the appellant was directed to pay total compensation of Rs. 1,54,500/-, which includes funeral expenses and loss of estate along with interest at the rate of 06% per annum from the date of filing of the claim case till the date of realization.
Short fact of the case is that on 12.03.2007, when Kaushal Kumar, aged about seven years, was coming along with his father / Respondent No. 1, at about 4 P.M., a tractor bearing Registration No. BR 30A-9147, being driven rashly and negligently by the driver dashed the son of the claimants. Due to the said accident he died on the spot. Accordingly, a case vide Meenapur P.S. Case No. 86 of 2007 was registered. Subsequently, under the provisions of the M.V. Act, a claim petition was filed before the learned Claims Tribunal, which was numbered as Claim Case No. 164 of 2007. The claimants claimed total compensation amount of Rs. 2,25,000/- along with interest at the rate of 09% per annum. It is not in dispute that the offending vehicle was not insured. Before the learned Tribunal in support of the claim case the claimants examined altogether five witnesses and number of documents were brought on record. It is relevant to mention here that the appellant did not participate in the proceeding before the learned Claims Tribunal. Before the learned Claims Tribunal, as per direction, notices were issued twice. Notice was once returned 3 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012 3 / 11 with an endorsement that the appellant refused to accept notice. Even though it was a case for refusal of notice, the learned Tribunal, on prayer made by the claimants, allowed for substituted service of notice under Order V Rule 20(1) C.P.C. for publishing the notice in Daily Newspaper published in Hindi namely "Hindustan". Notice in the newspaper "Hindustan" published from Sitamarhi, where the appellant was residing, was published, and thereafter, the case proceeded against the appellant ex-parte. Keeping in view the fact that deceased was aged about seven years and having no earning, the learned Tribunal, on the basis of notional income of Rs. 15,000/- per annum, as prescribed in Schedule II of the Motor Vehicle Act, adopting the multiplier of 15 which was applicable in case of the deceased, being of the age in between 1 to 15, calculated compensation amount, and as such, direction for payment of compensation amount, as indicated above, was issued. The learned Claims Tribunal did not accept the claim for Rs. 2,25,000/- as was claimed by the Respondent No. 1 & 2.
Aggrieved with the judgment and award, the appellant has preferred the present appeal. Limitation in filing the appeal expired on 05.01.2009. However, the appeal was presented before this court on 17.12.2009. The appellant for condoning 4 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012 4 / 11 delay has filed an interlocutory application vide I.A. No. 7961 of 2009 under Section 5 of the Limitation Act. In paragraph no. 4 of the limitation petition it has been indicated that he was informed from his distant relative regarding ex-parte judgment, and as such, he contacted the concerned Advocate for taking steps for filing appeal, and thereafter, the present appeal has been preferred.
Learned counsel for the appellant submits that the appellant noticed the fact of ex-parte judgment on 08.10.2009. So limitation should be counted from the date of knowledge, not from the date of the judgment and award. In the petition for condoning delay save and except vague statement that he got information from distant relative nothing has been asserted.
Sri Shanti Kumar, learned counsel for the appellant while assailing the judgment and award has firstly argued that notice was not issued in accordance with the procedure prescribed either under the M.V. Act, 1988 or Bihar Motor Vehicles Rules, 1992. He has referred to Section 169 of the M.V. Act, 1988 as well as Rule 234 of the Bihar Motor Vehicles Rules, 1992. It was also argued that the tractor in question was newly purchased and was under hypothecation of the Respondent No. 3 / Allahabad Bank (hereinafter referred to as the "Bank"). On this fact it has been argued that since it was hypothecated with the Bank the onus 5 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012 5 / 11 for discharging liability was on the Bank not on the appellant since without clearing all the installments the whole title or ownership was not required to be shifted in favour of the appellant notionally. According to learned counsel for the appellant the Allahabad Bank was the owner of the vehicle since the vehicle in question was hypothecated with the Bank. On aforesaid ground it has been prayed for setting aside the impugned judgment and award and allowing the interlocutory application for condoning the delay.
Learned counsel appearing on behalf of the claimants / Respondent No. 1 & 2 has strenuously opposed the prayer of the appellant. While opposing the prayer for condoning delay, it was submitted that right from the very beginning i.e. from the beginning of initiation of the claim proceeding, the appellant was intentionally avoiding to take any notice of the proceeding with oblique motive. He submits that twice notices were directed to be issued. At least, on one occasion, notice returned with endorsement of the Process Server that the appellant refused to accept notice. Notices were issued to the owner i.e. the appellant as well as to the Allahabad Bank. Notice issued to the Allahabad Bank was validly received. Even then, the Allahabad Bank had not appeared.
6 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012
6 / 11 Learned counsel for the respondents/claimants has specifically referred to page 35 of the Lower Court Record i.e. copy of notice on which there is endorsement of the Process Server that notice was refused to be accepted. He submits that, even though, on refusal, it was required to be accepted as "valid service", but to avoid any complication, the claimants filed a petition for allowing them to take aid of substituted service of notice, which was allowed, and thereafter, notice was published in the Newspaper, which was being published from Sitamarhi, residence of the appellant. The notice published in the newspaper is on record, which is indicative of the fact that notice was validly served. To corroborate the plea of "valid service of notice" on the ground of its publication in the Newspaper, learned counsel for the claimants has heavily relied on a judgment reported in AIR 2008 SC 1006 (Sunil Poddar and Ors. v. Union Bank of India). He has specifically referred paragraph no. 11 of the said judgment. For just decision in the matter it would be appropriate to quote paragraph no. 11, which is as follows: -
"11. Having heard the learned counsel for the parties, in our opinion, the appellants have not made out any ground on the basis of which the order passed by the DRT, confirmed by the DRAT and by the High Court can be set aside. From the record, it is clearly established that the suit was instituted by the plaintiff - Bank as early as in August, 1993. The appellants who were 7 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012
7 / 11 defendant Nos. 7 to 9 were aware of the proceedings before the Civil Court. They appeared before the Court, engaged an advocate and filed a written statement. They raised preliminary objections as also objections on merits. They filed applications requesting the Court to raise certain issues and try them as preliminary issues. It was, therefore, obligatory on their part to appear before the DRT, Jabalpur when the matter was transferred under the Act. The appellants, however, failed to do so. We are not impressed by the argument of the learned counsel for the appellants that they were not aware of the proceedings before the DRT and summonses could not be said to have been duly served. As is clear, summonses were issued earlier and on the same address, summonses were sought to be served again after the case was transferred to DRT. There is substance in the submission of the learned counsel for the respondent - Bank that the appellants had avoided service of summons as they wanted to delay the proceedings. We are also inclined to uphold the argument of learned counsel for the Bank that in view of the fact that the appellants were appearing before the Civil Court, it was not necessary for the Bank to get summonses published in a newspaper after the matter was transferred in accordance with law to the DRT, Jabalpur. But even that step was taken by the respondent-Bank. In "Navbharat Times", a Hindi newspaper having wide circulation in Bombay and Raipur, summonses were published. It cannot be argued successfully that the appellants were not the subscribers of the said newspaper and were not reading „Navbharat Times‟ Hindi Edition. But even otherwise, such contention is wholly irrelevant. As to bills said to have been produced from the newspaper agent, to us, both the Tribunals were right in observing that such a bill can be obtained at any time and no implicit reliance can be placed on that evidence. It is immaterial whether appellants were subscribers of the said newspaper and whether they were 8 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012 8 / 11 reading it. Once a summons is published in a newspaper having wide circulation in the locality, it does not lie in the mouth of the person sought to be served that he was not aware of such publication as he was not reading the said newspaper. That ground also, therefore, does not impress us and was rightly rejected by the Tribunals."
On the aforesaid facts, the court is persuaded to accept the plea of learned counsel for the claimants / respondents that notice was validly served on the appellant being the owner of the offending vehicle, and as such, ex-parte hearing in the proceeding can not be interfered with on the ground that the appellant was having no notice. Even in the limitation petition which has been filed for condoning delay in filing the appeal, no specific ground has been taken to persuade the court to allow the limitation petition. Only vague statement has been made that on 08.10.2009 he came to know through his distant relative regarding ex-parte judgment, and thereafter, he had taken steps for filing the appeal. In a case where the court below had proceeded for ex-parte hearing after publication of notice in the Newspaper such plea is not sufficient for condoning the delay. It was required on the part of the appellant to make specific statement regarding delay in filing the present case. Record shows that in the claim case itself notice was refused to be accepted by the appellant on 29.10.2007, 9 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012 9 / 11 and thereafter, paper publication was got affected.
The plea of learned counsel for the appellant that the vehicle in question was hypothecated with the Bank and as such he may not be directed to pay compensation amount is also not sustainable in the eye of law. From the record it is evident that the vehicle in question was in possession of the appellant. The vehicle was being driven by the driver of the appellant, who was made accused and charge sheet in the said case was also submitted. It is very difficult to come to the conclusion that in a case in which vehicle of the appellant had met with an accident and F.I.R. was also lodged against the driver, he was not aware about the filing of the claim case, that too, after publication of notice in the claim petition in the Newspaper. At the time of accident the vehicle was in possession of the appellant and since he was using the vehicle he can not take the plea that merely on the ground of hypothecation the Bank would be held liable for paying compensation. Section 2(30) of the Motor Vehicles Act, 1988, defines the word "owner". It would be appropriate to quote the same, which is as follows:-
2(30) "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hirepurchase agreement, or an agreement of lease or an 10 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012
10 / 11 agreement of hypothecation, the person in possession of the vehicle under that agreement;
On perusal of aforesaid provision there is no doubt in the mind of the court that even in case of hypothecation, if the person is in possession of the vehicle, then he will be considered as the owner of the vehicle, and as such, the plea taken by learned counsel for the appellant that since the vehicle was hypothecated, Bank would be responsible has got no substance and is not sustainable in the eye of law.
Regarding non-application of the provisions of the Code of Civil Procedure regarding service of notice, the court is of the opinion that submission made by learned counsel for the appellant is simply misconceived. Learned counsel for the appellant has not shown any specific provision which strictly puts a restriction for issuance of notice or service of notice as prescribed under Order V of the Civil Procedure Code. It is further evident from Rule 228 of the Bihar Motor Vehicles Rules, 1992 that the Claims Tribunal can exercise all the powers of a Civil Court, save and except, same are not inconsistent with the provisions of the Motor Vehicles Act, 1988. Section 169 of the M.V. Act, 1988 or Rule 234 of the Bihar Motor Vehicles Rules, 1992 does not indicate that the C.P.C. so far as service of notice is 11 Patna High Court MA No.736 of 2009 (12) dt.23-04-2012 11 / 11 concerned is not applicable.
In view of aforesaid facts and circumstances, the court is of the opinion that neither the judgment and award on merit is required to be interfered with nor the appellant has shown any sufficient cause for delay in filing the appeal, and as such, on both counts, the appeal stands dismissed.
In view of dismissal of the appeal, the statutory amount which was deposited by the appellant at the time of filing of the appeal is directed to be remitted back to the court below for its payment to the claimants.
(Rakesh Kumar, J) Praful/-