A.S. Naidu, J.
1. The common order dated 3rd February, 1999, Annexure 4, passed by the 2nd M.A.C.T., Cuttack in M.J.C. Nos. 3 of 1994 and 4 of 1994 is assailed in these two writ applications.
2. Bereft of unnecessary details, the short facts leading to filing of these two writ applications are that in a motor vehicle accident caused by a truck bearing registration No. ORC 7319, one Parsuram Nayak sustained grievous injuries and succumbed to the same. On the basis of two claim petitions filed under Section 110A of the Motor Vehicles Act, one by the widow of the deceased, and the other by the widowed mother and sister of the deceased, two miscellaneous cases being numbered as 622 of 1987 and 103 of 1988 were registered before the 2nd M.A.C.T., Cuttack. The present petitioner being the owner of the offending truck was impleaded as a party in the said two miscellaneous cases before the Tribunal and so also the New India Assurance Company, the insurer of the said vehicle. During pendency of the miscellaneous cases, the husband of the present petitioner was also impleaded as an opposite party in the said cases.
3. The Tribunal after a threadbare discussion of the materials available on record, including the oral and documentary evidence, held that the accident and death had occurred due to the rash and negligence of the driver of the truck. It further held that the insurance policy in respect of the offending truck was not valid on the date of the accident. On the basis of such conclusion the Tribunal while awarding a compensation of Rs. 2,20,000.00 in favour of the petitioners in the miscellaneous cases directed the present petitioner who was the owner of the offending vehicle to pay the compensation amount.
4. It is pertinent to mention here that the petitioner did not contest the cases before the Tribunal, but then she had filed petitions under Order 9 Rule 13, C.P.C. in both the miscellaneous cases with a prayer to set aside the ex parte award. But then the said petitions had been filed after lapse of almost nine months. The Tribunal after hearing the parties arrived at the conclusion that there was no sufficient cause which prevented the petitioner who was a party to the miscellaneous cases before the Tribunal from appearing when the said cases were called on for hearing. Accordingly both the aforesaid petitions were dismissed by the Tribunal by order dated 3rd February, 1999, Annexure 4.
5. As the compensation amount was not deposited before the Tribunal, the petitioners in the miscellaneous cases moved the Tribunal and a certificate proceeding was initiated. The petitioner prays in these writ applications for setting aside the order Annexure 4 mainly on the ground that she was not the real owner of the offending truck and in fact her husband was the owner. It is further submitted that she has been divorced by her husband and in Title Suit No. 272 of 1987 of the Court of the then First Subordinate Judge, Cuttack maintenance was granted in her favour by consent and subject to the condition that she transferred the ownership of the offending vehicle in favour of her husband, It Is further stated that in consonance of the decree passed In that suit, the petitioner filed application for transfer of the said vehicle in the year 1989, It is also submitted that as her husband who was the real owner of the offending vehicle had been impleaded as an opposite party in the miscellaneous cases before the Tribunal, she did not contest the said cases. Relying upon the decision in the case of Oriental Fire and General Insurance Co. v. Smt. VimalRal reported in AIR 1973 Delhi 155, it is submitted that only the real owner of the vehicle, and not the recorded owner, is liable to pay the compensation and therefore the Tribunal ought to have saddled the entire compensation on the husband. For the aforesaid reasons, it is submitted on behalf of the petitioner, that the Tribunal ought to have atleast set aside the ex parte award and given opportunity to the petitioner to put forth her case.
6. The submissions of the learned Counsel for the petitioner are strongly repudiated by Mr. Jena, learned Counsel for the claimant-opposite parties. According to him, though notice had been served on the petitioner who was the owner of the offending vehicle, she chose not to appear and contest the cases before the Tribunal and allowed the cases to proceed ex parte against her. In the petitions filed under Order 9 Rule 13, C.P.C. she also failed to satisfy the Tribunal that there were sufficient reasons which prevented her from appearing before the Tribunal and contest the cases and, as such, the impugned order does not suffer from any infirmity or illegality. That apart, according to Mr. Jena, the accident took place in the year 1987 and eighteen years have passed in the meanwhile. The petitioners before the Tribunal, namely, a young widow, widowed mother and sister of the deceased facing un-surmountable difficulty and stringent financial hardship are running from pillar to post for these years and due to laches of the owner of the vehicle they are not to suffer any more.
7. After hearing the learned Counsel for the parties, I find force in the submission of Mr. Jena, I find that the Tribunal has taken into consideration all the facts and circumstances of the case and the conclusion arrived at does not suffer from any infirmity or illegality. Accordingly this Court is not inclined to interfere with the impugned order at this belated stage.
8. Before parting, however, I observe that in view of the decree passed in T.S. No. 272 of 1987, the ownership of the offending truck had been transferred by the petitioner's in favour of her husband. The decree further stipulates that the petitioner wife was not to claim any right, title or interest over the offending vehicle and her husband would bear any amount pending in respect of the said vehicle and shall remain liable for any civil and criminal cases pending in respect thereof. The said decree is binding on all the parties to the suit. The husband who is opposite party No. 4 in these two writ applications cannot wriggle out of the stipulations made in the decree. The notices issued in the writ petitions have been duly received by the husband of the petitioner but he neither appeared nor did repudiate the averments made in the Appeal Memorandum. In the aforesaid circumstances this Court feels that in consonance with the decree passed in T.S. No. 272 of 1987 by the Court of the Subordinate Judge, Cuttack it would be just and proper to direct the Tribunal to initiate appropriate proceeding for realisation of the entire compensation amount from the husband of the petitioner instead of the latter. The certificate proceeding initiated against the wife is thus not maintainable and is quashed.
With the aforesaid direction/observation the two writ applications are disposed of.