Judgment:
R.S. Sodhi, J.
1. CM(M) 329/2005 is directed against the order of the Motor Accident Claims Tribunal, Delhi in Ex. No. 108/2004 whereby the learned Tribunal has issued a recovery certificate against the legal representative of judgment debtor for realization of the decrial amount.
2. Brief facts of the case as noted by the learned Judge, Motor Accident g Claims Tribunal are as follows:.2. The facts giving rise to the present application are that claim petition was filed by Smt. Ram Pyari under Sections 166 and 140 of Motor Vehicles Act, 1988, as amended up to date (hereinafter referred as the 'Act'), seeking compensation to the tune of Rs. 5,00,000/- with interest against respondents driver, owner and insurer of the bus No. DL-1P-2127, jointly and severally. It was the case of the claimant that due to the rash and negligent driving of the said bus by respondent No. 1, .he sustained grievous injuries. The claim petition was decided vide impugned award thereby granting total compensation of Rs. 1,42,000/- with interest @ 6% per annum from the date of filing of the petition till realization. Though the a liability to pay compensation was fastened on the Insurer Company, it was made entitled to recover the amount of compensation paid to the claimant from driver and owner of the offending bus, jointly and severally since, suffice to state, the driving license of the driver was found to be forged, as proved on record by the Insurer Company.
3. The amount of compensation has already been paid by the Insurer Company to the claimant and now the Insurance Company has filed the execution application so as to recover the amount of compensation paid by it to the claimant from the driver and owner of the offending bus.
4. In the present application, it is stated that late Kewal Krishan Sharma, husband of the applicant was the registered owner of the offending bus and c he was not keeping good health, suffering from various ailments since the year 2000 and ultimately died on 20.10.2003. It is stated that the factum of death of the deceased was brought to the notice of the Court on 20.7.2004 and yet the legal representatives of the deceased were not imp leaded in terms of Order 21 Rule 4, CPC nor any permission was 4 granted by this Court/Tribunal from impleading the legal representatives. It is thus urged that award passed against a dead person is a nullity and it is prayed that the attachment warrants against JD No. 2 be withdrawn. The application is supported by an affidavit of widow of the deceased Kewal Krishan Sharma.
3. It is contended by Counsel for the petitioner that judgment debtor had died e during the pendency of the suit on 20.10.2003 which was brought to the notice of the Court on 20.7.2004 as is apparent from the record of the case. He submits that it was incumbent upon the claimant to have imp leaded the legal representatives of the deceased on record or to have taken an exemption under Order 22 Rule 4(4), CPC.
4. In the present case, since no exemption was sought and the matter proceeded with respondent No. 2 having died the case abated. The Motor Accident Claims Tribunal making an order for realization of the decretal amount from the legal representatives of the deceased is bad.
5. Nobody appears for the respondent in spite of service. Having heard g Counsel for the petitioner and having perused the order under challenge, I am of the opinion that the respondent in the claim petition having died on 20.10.2003 during the pendency of the proceedings before the MACT the information whereof was given to the Court on 20.7.2004 and no permission sought by the claimant for exemption under Order 22 Rule 4(4), CPC, no claim against the legal representatives of the deceased would lie. Reference may be had to a judgment of h the Supreme Court in Zahirul lslam v. Mohd. Usman and Ors. 2003 SAR (Civil) 97, Supreme Court, where a similar case in hand has been dealt with.
6. In that view of the matter, the order under challenge is set aside to the extent that the issue of the recovery certificate against legal representatives of judgment debtor No. 2 for realization of the decretal amount is contrary to law.
7. Civil Miscellaneous Main 329 of 2005 is disposed of. CM. APPL. 2851/2005 also stands disposed of.