C.R. No.4420 of 2011 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4420 of 2011 Date of Decision. 04.10.2013 Rasaljit Singh son of Hari Singh .......Petitioner Versus Smt. Palvinder Kaur widow of Atma Singh alias Amrik Singh and others ......Respondents Present: Ms. Navdeep, Advocate for the petitioner. Mr. S.D. Bansal, Advocate for respondent Nos.1 to 5. None for other respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN1 Whether Reporters of local papers may be allowed to see the judgment ?.
2. To be referred to the Reporters or not ?.
3. Whether the judgment should be reported in the Digest?. -.- K. KANNAN J.
1. The revision petition is against the order in the petition for correction of the judgment filed under Section 152 CPC at the instance of the legal representative of the 2nd respondent which was dismissed by the Motor Accident Claims Tribunal. The counsel for the revision petitioner contends that the award passed on 02.03.2005 failed to take note of its earlier order dated 16.02.2004 treating the award against the 2nd respondent as having abated on the failure of the claimants to implead the legal representatives after the death of the 2nd respondent. The petitioner is the son interested in contending that the award passed by the Motor Accident Claims Tribunal was erroneous and the ultimate award could not have been passed against the 2nd respondent also as if he was alive.
2. The award which is sought to be corrected was rendered by Kamboj Pankaj Kumar 2013.10.05 12:32 I attest to the accuracy and integrity of this document Chandigarh C.R. No.4420 of 2011 -2- the Motor Accident Claims Tribunal providing for certain compensation against respondent Nos.1 to 5, the 1st respondent was the driver, the 2nd respondent Hari Singh was the registered owner. Respondent Nos.3 and 4 namely Avtar Singh and Karnail Singh were said to be the transferees of the mini bus which had been involved in the accident. Although the insurance company had been made as party, it was exonerated when it was found that there was no valid insurance at the time of accident. The Court dismissed the application finding that there had been an award passed already including the 2nd respondent and it cannot be corrected subsequently to exonerate the 2nd respondent when the legal representatives' application to set aside the ex parte award had been previously dismissed.
3. Learned counsel appearing for the petitioner would contend that when an application to set aside the ex parte award was passed, he had challenged the same before this Court in C.R. No.367 of 2007 but had it dismissed as withdrawn with liberty to file an application for amendment of the award only because the Court had already dismissed the petition against the 2nd respondent as having abated on 16.02.2004 and a subsequent award passed was not justified. I must observe immediately that the 2nd respondent had been previously set ex parte even on 31.03.2003. An award had been passed subsequently on 02.03.2005. When the award was passed, however, the Court had made the 2nd respondent also as liable for the award. The counsel refers to me several decisions of the Supreme Court pointing out to how a suit or a proceeding which has abated leaves no right for prosecution of the award or enforcement of the decree against whom there was an order of Kamboj Pankaj Kumar 2013.10.05 12:32 I attest to the accuracy and integrity of this document Chandigarh C.R. No.4420 of 2011 -3- abatement. I have no difficulty in accepting this as a general proposition obtaining in all situations but in this case none of those decisions relating to the consequence of allowing the proceeding as having abated could be applied, since the Punjab and Haryana High Court amendment introducing Order 22 Rule 4(2) states that the suit shall not abate against a deceased where within a time limited by law, if no application is filed under sub rule 2 and the suit shall proceed as though no abatement had taken place. This judgment could be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. I would only find, therefore, that when the Court passed an order on 16.02.2004 that proceedings against the 2nd respondent had abated, it had passed an order without reference to Order 22 Rule 4(3) and the mistake was corrected when the award was ultimately passed against the 2nd respondent as well. The award was, therefore, not liable to be corrected at all on this score.
4. It might seem that there was injustice for the legal representatives of the deceased-2nd respondent, who could not set up a defence relating to the non liability of the 2nd respondent or his estate for the award that was passed, since according to the 2nd respondent, the vehicle had been transferred to Avtar Singh and Karnail Singh and that he or his father's estate was not liable for answering the claim. Such a contention would have been possible if he had not been set ex parte on 31.03.2003. If Hari Singh had allowed himself to be set ex parte, then even the legal representative had not lost his right to contend that the vehicle had been transferred and that there could have been no award passed. The counsel again referred several decisions before me that the Kamboj Pankaj Kumar 2013.10.05 12:32 I attest to the accuracy and integrity of this document Chandigarh C.R. No.4420 of 2011 -4- issue of ownership itself is not relevant for casting a liability and what was more important is only the person, who was in possession and control of the vehicle. I have no difficulty in accepting this proposition of law that a transfer need not be necessarily registered and transfer of a motor vehicle could pass by mere delivery. The registration procedure prescribed under Sections 50 and 51 of the Motor Vehicles Act is only an evidence of such transfer but the title itself could pass under Section 19 of the Sale of Goods Act on mere delivery. If, therefore, Avtar Singh and Karnail Singh had become the owners of the property subsequently, it was possible for the Court to have passed award only against the subsequent purchasers and exonerated the 2nd respondent, who was the registered owner. However, if an award had also been passed against the 2nd respondent with no proof offered that there was a valid transfer in favour of Avtar Singh and Karnail Singh, then the 2nd respondent or his legal representative would be bound by such an adjudication. The only occasion where such a consequence could have been averted was if the ex parte award against the 2nd respondent had been set aside or if he had secured also the benefit of proof of such transfer, the liability could have been siphoned off to the subsequent purchasers. That opportunity was lost when the petitioner did not press home to his own advantage the justification for setting aside the ex parte order against him. On the other hand, he had opted for a quick exit in civil revision No.367 of 2007 and sought for a procedure to plead for amendment of the award. It was not as if the Court directed him to adopt such a course of action. The petitioner had brought upon himself a process, which was simply not sufficient to secure to him the benefit which is now canvassed in civil revision. If the decree was ex parte which Kamboj Pankaj Kumar 2013.10.05 12:32 I attest to the accuracy and integrity of this document Chandigarh C.R. No.4420 of 2011 -5- is still a valid decree and if it had not been set aside, there is no means by which the Court can modify the decree to provide for liability only to Avtar Singh and Karnail Singh. I have already held that the observation that the petition had abated on 16.02.2004 cannot be understood as exonerating the liability of the 2nd respondent or the legal representatives since such an order was untenable and ought not to have fettered the right of the Tribunal to pass an award against the 2nd respondent as well or his estate since an earlier order had been passed without reference to the High Court Amendment under Order 22 Rule 4(3) CPC.
5. The only benefit which the petitioner could be given in view of the fact that he did not avail to himself the benefit of proving the transfer is to make the petitioner liable and secure to him the benefit of recovery against the 8th respondent-Avtar Singh and the legal representatives of 9th respondent-Karnail Singh, who are impleaded as respondent Nos.9 to 12 before this Court. It shall not be open to the petitioner to set aside the award but he could apply for recovery in the execution proceedings without having to file an independent suit by giving appropriate evidence regarding the transfer of the vehicle at the relevant time of the accident. Subject to this liberty, the order already passed by the Court below is confirmed and the civil revision is dismissed. (K. KANNAN) JUDGE October 04 , 2013 Pankaj* Kamboj Pankaj Kumar 2013.10.05 12:32 I attest to the accuracy and integrity of this document Chandigarh