M.M. Kumar, J.
1. This petition filed under Article 227 of the Constitution is directed against the order dated 19.5.1993 passed by the Motor Accident Claims Tribunal, Ludhiana (for brevity 'the Tribunal') dismissing the application of the petitioner for setting aside the ex parte award dated 23.10.1990 passed by the Tribunal awarding a sum of Rs. 1,72,800/-, the award has been made in favour of the mother of deceased Harbans Singh, his widow, son and daughter. The operative part of impugned order dated 19.5.1993 reads as under:
Tilak Raj Sharma, AW 1, mainly deposed that Jammu and Kashmir State Road Transport Corporation has its office in Jammu. He was working as General Manager (Operation) at Jammu. No notice or intimation in claim petition filed by Nachhattar Kaur, etc., was received. Even the ex parte award was not in their knowledge. Only on 29.6.1991 when bus was attached, Pritam Singh, driver, brought it to his notice and one C.L. Luthra, Legal Assistant, was deputed to go to Ludhiana to conduct the proceedings. He produced the photocopy of the fitness certificate, Exh. A-1 and photocopy of the registration, Exh. A-2, showing that the bus was registered at Jammu and the permit of the bus issued at Jammu, the copy of which is Exh. A-3. He further deposed that receipt of acknowledgement due marked X, is not initialled by any of the officials of his office. According to him Chaju Ram never intimated the office, about the pendency of the claim petition. In cross-examination he admitted that Counsel was engaged at Ludhiana by the Legal Assistant C.L. Luthra. No resolution was passed by applicant authorising Luthra to engage a Counsel. He never gave any power of attorney before 16.7.1991. Application dated 9.7.1991 was shown to him in the execution file, which according to him does not bear his signatures. According to him none else is competent in Jammu region to engage a Counsel. Instructions to C.L. Luthra were oral. He admitted that Jammu & Kashmir State Road Transport Corporation has an office at Srinagar and the other at Jammu. The Chairman of the Corporation is one. The address according to him is incomplete.
xxx xxx xxxOn 14.8.1986 Gurdial Kaur, one of the claimants died and application to bring her L.Rs. on the record was moved. Vide order dated 31.11.1986 Jaswant Singh and Bagga Singh were allowed to join as L.Rs. of Gurdial Kaur and the respondents were ordered to be summoned for 18.12.1986. For 18.12.1986 the respondent No. 1 was duly served through registered cover. Only Chaju Ram was left to be served and he was ordered to be summoned for 12.2.1987. The Counsel for the applicant argued that no specific order for proceeding ex parte against the respondent No. 1 was passed on 18.12.1986. In the absence of such an order, the ex parte award, therefore, could not be passed. I do not agree with this contention, because it is clearly mentioned that the respondent No. 1 has been duly served through registered cover. Respondent No. 1 was not subsequently summoned, on any date. Even if specific order was not made, on that date, it was manifestly mentioned that J & K State Road Transport Corporation has been duly served through registered post and A.D. is on the record through General Manager, but none is present to contest the petition. Automatically respondent No. 1 was proceeded against ex parte, when no fresh notice was issued to it. Thus no benefit on this count can be given to the applicant.
Learned Counsel for the applicant further argued that the summons were addressed to Srinagar while the bus in question belongs to Jammu Depot, thus the address given on the registered summons was wrong and it cannot be treated as due service. It is admitted by Tilak Raj, AW 1 that J & K State Road Transport Corporation has its office in Srinagar as well as in Jammu. The Chairman of the Corporation is one. If the summons were received in Srinagar intimation to the office at Jammu could be passed since the Transport Corporation is the same. Secondly, the driver of the bus Chaju Ram contested the petition so it cannot be said that the Corporation has no knowledge about the pendency of the claim, or was not duly served. I do not agree with the Counsel for appellant that there was no proper service or the applicant was prevented for sufficient cause to appear and contest the claim application, rather it is proved that the Corporation was duly served, the pendency of the claim petition was within the knowledge of the Corporation and it had slept over the matter. Chaju Ram the driver was only allowed to continue those proceedings. The initials on the acknowledgement due of an official from the office of the Corporation have to be taken as a due service. The statement of Tilak Raj, AW 1, cannot be believed as correct that his acknowledgement does not bear the initials of any officials of his office. It is very easy to deny the initials on such documents. On the other hand, there is presumption in law that notice in the registered cover attached to the acknowledgement, which was initialled, had been delivered in the ordinary course of official duty by the postman. I, therefore, decide this issue against the applicant.'
2. Mr. K.S. Cheema, learned Counsel for the petitioner has vehemently argued that no service at the head office of the Corporation at Srinagar was effected as required by Order 29 Rule 2 of the Civil Procedure Code, 1908 (for brevity 'the Code') and the petitioner was deprived of an opportunity of hearing. According to the learned Counsel, the service of summons at head office as per requirement of the aforementioned provisions is must and service effected at Jammu even if it is presumed to be good service, cannot be deemed to be a valid service. Therefore, it is a case of no service and the award dated 23.10.1990 passed ex parte is liable to be set aside. The learned Counsel has referred in detail to the statement made by the witnesses of petitioner Corporation to show that service at the head office at Srinagar was never effected and the registered A.D. notice sent at Jammu would not satisfy the requirement of Order 29 Rule 2 of the Code. Mr. Cheema urged that the Tribunal has committed a grave error by imputing knowledge to the petitioner Corporation merely because, the driver of its bus had contested the claim because it cannot be any substitute of service as provided by Order 29 Rule 2 of the Code.
3. Mr. Gurcharan Dass, learned Counsel for the claimant-respondents has argued that service was effected at Jammu and the petitioner Corporation was served for 18.12.1986 through registered A.P. cover. According to the learned Counsel, only one Chaju Ram was left to be served who was ordered to be served for 12.2.1987. The learned Counsel maintained that even Chaju Ram was served who was driver of the offending bus owned by the petitioner Corporation. Therefore, petitioner Corporation must be fully aware of the pending proceedings.
4. I have thoughtfully considered the submissions made by the learned Counsel for the parties and do not feel persuaded to accept the submissions made by learned Counsel for the petitioner. Under Section 111-A of Motor Vehicles Act, 1939 (for brevity 'old Act') which is equivalent to Section 176 of the newly enacted Motor Vehicles Act, 1988 (for brevity 'new Act'), the State Government is vested with the powers to make rules regulating the procedure to be followed by the Tribunals in holding an inquiry for the purposes of considering the claim petitions filed under Section 110-A of the old Act or Section 166 of the new Act. Accordingly, the State Government has framed the Rules known as Punjab Motor Accident Claims Tribunals Rules, 1964 (for brevity, 'the Rules'). Rule 6 of the Rules postulates sending of notice to the parties involved. Section 176 of the new Act and Rule 6 of the Rules read as under:
176. Power of State Government to make rules.--A State Government may make rules for the purpose of carrying into effect the provisions of Sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely-
(a) the form of application for claims for compensation and the particulars, it may contain, and the fees, if any, to be paid in respect of such application;
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;
(d) the form and manner in which and the fees (if any) on payment of which an appeal may be preferred against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be, prescribed.
xxx xxx xxx6. Notice to parties involved.--If the application is not dismissed under Rule 5, the Claims Tribunal shall send to the owner of the motor vehicle involved in the accident and its insurer, a copy of the application together with a notice of the date on which it will hear the application, and may call upon the parties to produce on that date any evidence which they may wish to tender.
A perusal of Section 176 of the new Act reveals that the State Government has been vested with the power to regulate the procedure to be followed by the Tribunal in holding an inquiry under Chapter XII, i.e., adjudication of the claims for compensation made under Sections 165 to 174 of the new Act. This power flows from Section 176(b) and (c) of the new Act. Sub-sections (b) and (c) of Section 176 of the new Act also vest the Tribunal with the power of a Civil Court which it 'may' exercise. Accordingly, Rule 6 of the Rules have provided issuance of notice to the owner of the motor vehicle involved in the accident and its insurer.
5. The question whether the provisions of Order 29 Rule 2 of the Code would rigorously apply making it mandatory for a claimant to serve notice on the corporation at its head office has to be examined in the light of the provisions of Section 176 of the new Act and-Rule 6 of the Rules. For that purpose a look at the provisions of Order 29 Rule 2 of the Code may also be noticed which read as under:
ORDER XXIX
Suits by or against Corporations
2. Service on corporation.--Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-
(a) on the secretary or on any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.
From the perusal of Rule 2 of Order 29 of the Code, it emerges that this provision is subordinate to any statutory provision regulating service of process. It also becomes clear that the expression 'may' has been used. Therefore, it is evident that Order 29 Rule 2 of the Code has to be read in juxtaposition to Rule 6 of the Rules. Rule 6 only imposes an obligation on the Tribunal to send notice to the owner of the motor vehicle involved in the accident together with a notice of the date on which it would hear the application. The Tribunal has discharged that obligation as is clear from the reading of para 6 of the order that petitioner Corporation was served for 18.12.1986 through registered A.D. It has been the case of the petitioner that notice should have been served only at Srinagar where registered office of the petitioner Corporation is situated. The service at Jammu has been described as contravening Order 29 Rule 2 of the Code. The service according to Rule 6 of the Rules has been effected and there is intrinsic evidence available on record showing that petitioner Corporation was aware and have full knowledge of the accident as well as the proceedings before the Tribunal. It has been admitted that at one stage, C.L. Luthra, Legal Assistant, was deputed to visit Ludhiana to conduct the proceedings and to engage a Counsel. Therefore, I am of the firm opinion that the rigours of Order 29 Rule 2 of the Code cannot be applied to proceedings before the Tribunal.
6. I am further of the view that if Order 29 Rule 2 of the Code is applied to the proceedings before the Tribunal, then Rule 2 expressly provides that it was subject to any statutory provisions regulating service of process. In other words, the provision of Rule 2 of Order 29 of the Code is subject to Order 5 Rules 13 and 14 of the Code. The provisions of Order 5 Rules 13 and 14 of the Code read as under:
ORDER V
Issue and Service of Summons
1 to 12. xxx xxx xxx13. Service on agent by whom defendant carries on business--(1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.
(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer.
14. Service on agents in charge in suits for immovable property.--Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in-charge of the property.
7. The provisions of Rule 2 of Order 29 of the Code came up for consideration before the Apex Court in the case of Jute and Gunny Brokers Ltd. v. Union of India : [1961]3SCR820 . In that case, the dispute has arisen with regard to service of order of requisition of the property of the company under Rule 75-A of the Defence of India Rules, 1939 and the question has to be viewed in the light of Section 148 of Indian Companies Act, 1913 (for brevity '1913 Act'). Their Lordships interpreted Section 148 of 1913 Act to mean that Section 143 of 1913 Act or Rule 2 of Order 29 of the Code are not exhaustive provisions. Therefore, service under any provision of the Code would be good service and the notice could have been served on the Managing Director or principal agent or any other responsible officer. The observations of Their Lordships in this regard read as under:
It will be seen that Rule 2 of Order 29 of the Civil Procedure Code is subject to any statutory provision regulating service of process and where there is any specific statutory provision Rule 2 would not be applicable. The only other statutory provision is in Section 148 ibid. But that provision, as the words themselves show, is merely an enabling provision and it nowhere lays down that the method mentioned in Section 148 is the only method of serving all documents on a company. The section lays down by leaving it or sending it by post at the registered office of the company. But the language shows that it is not the only provision, nor is it imperative that service can be effected in the way mentioned in that section, and in no other way. If that were the intention this section of the Companies Act would have been very differently worded. We, therefore, find that there is one enabling provision in Section 148 of the Companies Act as to the manner in which documents may be served on a company or a corporation. Order 29 Rule 2 lays down another method also in addition which Courts may employ in effecting service on a corporation. To our mind either of the modes specified in Section 148 of the Indian Companies Act or Order 29 Rule 2 of the Civil Procedure Code is a reasonable mode of effecting service on a company. It is said that Order 29 Rule 2 applies to a case of a suit by or against a corporation. That is undoubtedly so. But what is good service in suits would in our opinion be reasonable service for the purpose of Rule 75-A(2). Therefore, notices under Rule 75-A(2) could be served on the mills either in the manner provided in Section 148 of the Companies Act or in the manner provided in Order 29 Rule 2 of the Civil Procedure Code. In this case the manner employed for service of notices under Rule 75-A(2), is that provided in Order 29 Rule 2(a), namely, by effecting service on the principal officer of the mills, namely, managing agents.
The same principle has been followed in Shalimar Rope Works Ltd. v. Abdul Hussain H.M. Hasanbhai Rassiwala : [1980]3SCR1028 , holding that the bailiff can always leave the summons at the registered office of the company in case he fails to find and serve the secretary or director or any other principal officer of the corporation. Their Lordships observed as under:
The meaning of Clause (b) has got to be understood in the background of the provisions of the Code in Order 5 which is meant for issue and service of summons on natural persons. Sending a summons by post to the registered office of the company, unless the contrary is shown, will be presumed to be service on the company itself. But the first part of Clause (b) has got to be understood with reference to the other provisions of the Code. In Rule 17 of Order 5 it has been provided:
Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on his business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.Sending the summons to a corporation by post addressed to it at its registered office may be a good mode of service either by itself or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision contained in Order 5 Rule 17 of the Code. In other words, if the serving peon or plaintiff is not able to serve the summons on the secretary or any director or any other principal officer of the corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence then he can leave the summons at the registered office of the company and make a report to that effect....
8. It is true that in the instant case, notice was not served at the registered office of the petitioner Corporation at Srinagar. The provisions of Order 29 Rule 2 of the Code cannot be read in isolation and has to be read with Rules 13 and 14 of the Order 5 of the Code. Order 5 of the Code shows that the service of summons on an agent in case the defendant does not reside within the local jurisdiction of the Court issuing that summons, has to be deemed as good service. Even service on such an agent of the defendant who is incharge of the property would also be considered as good service. In the instant case, the service was effected at the office (other than the registered office) at Jammu. It was also to the notice of the petitioner Corporation that proceedings were going on. Therefore, even under the various provisions of the Code, the service would be deemed to be effected and no fault can be found in the impugned order dated 19.5.1993.
9. I am further of the view that setting aside the award dated 23.10.1990, at this stage would result into rehearing of the whole case which is already being prosecuted by the legal representatives of Gudial Kaur, widow of deceased Ajaib Singh who lost his life in the accident. It would result into another round of litigation for the claimant-respondents. Even otherwise the amount awarded is meagre and no appeal has been filed by the claimant-respondents for enhancement of the same. Therefore, I do not feel inclined to set aside the impugned award and find that the instant petition is devoid of merit.
10. For the reasons recorded above, this petition fails and the same is dismissed.