Ram Devi and ors. Vs. Motor Accident Claims Tribunal and ors.

Ram Devi and ors. vs Motor Accident Claims Tribunal and ors.

Type Court Judgment Court Rajasthan Decided Jul 05, 2000

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Citation: sooperkanoon.com/750482
Court: Rajasthan High Court
Judge: B.J. Shethna, J.
Decided On: Jul 05, 2000
Case Number: S.B. Civil Writ Petition No. 1714 of 2000
Subject: Motor Vehicles

Case Summary

AI-generated summary - not the official court judgment text.

Civil Procedure Code, 1908 - Order 5 Rule 20--Service of notice--Substituted service--Application of owner for substituted service of offending vehicles disallowed by Accidents Claims Tribunal as such service was not effected despite grant of permission earlier--Tribunal not justified as in the absence of owner, no ...

Key legal issue: Motor Vehicles
Acts & sections: Motor Vehicles Act, 1988 - Sections 140 and 166

Parties & Advocates

Appellant / Petitioner

Ram Devi and ors.

Advocate P.R. Singh, Adv.

Respondent

Motor Accident Claims Tribunal and ors.

Legal References

Acts: Motor Vehicles Act, 1988 - Sections 140 and 166
Reported In: 2000(4)WLC618; 2000(3)WLN111

Excerpt

.....control test is one of the important tests, but is not to be taken as the sole test. it is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. the other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person..........(annex.2) to serve the respondent no. 2 owner by publication, a gross injustice is done to the claimants- petitioners. to proceed with the claim petition without service to the owner of the offending vehicle would be an exercise in futility because even if the claimants succeed to prove their claim before the tribunal, the award could not be passed against the insurance company. the reasons assigned by the learned tribunal in rejecting the application of the petitioners are wholly unsustainable. the learned tribunal ought to have considered the fact that this is an old claim petition filed by the poor claimants, particularly when on earlier occasion the tribunal ordered to serve the respondent no. 3 by a public notice, then there was no reason for the learned tribunal to dismiss the subsequent application on 28.4.2000. thus, the impugned order passed by the learned tribunal on the face of it is illegal and liable to be quashed.(3). it may be staled that the application submitted by the petitioners-claimants before the tribunal was never objected by the driver or the insurance company.(4). under the circumstances, i am of the opinion that the impugned order at annex. 3 passed by the learned tribunal is required to be set aside.(5). accordingly, this petition is allowed, the impugned order at annex. 3 dated 28.4.2000 passed by the learned tribunal dismissing the application of the petitioners dated 28.4.2000 (annex.2) is hereby quashed and set aside. the application dated 28.4.2000 (annex.2) is hereby granted. the learned tribunal shall now permit the petitioners to serve the respondent no.3 - owner of the vehicle by public notice.(5). stay petition is also disposed of.

Full Judgment

ORDER

Shethna, J.

1. The petitioners are the claimants who have filed claim petition under Sec. 166 read with Sec. 140 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal - respondent no. 1 in 1993 against the driver Laxman Ram- respondent No. 2, owner Rajesh Kumar- respondent no. 3 and Oriental Insurance Company Ltd. respondent no. 4. Notices were ordered to be issued to all the respondents by the Tribunal. The driver and Insurance Company both were served but the owner of the offending vehicle was not served inspite of best efforts of the petitioner, therefore, on 2.12.99, a request was made on their behalf before the learned Tribunal to serve the respondent no. 3 owner by publication of notice in local daily newspaper. The learned Tribunal ordered to publish the notice in local daily newspaper 'Dainik Tej' and the next date of hearing was kept on 3.2.2000. Somehow or the other, the notice could not be published due to strike of the government employees at that time. Later on, the case was fixed on 13.3.2000 before the learned Tribunal and the matter was kept on 28.4.2000. On 28.4.2000, on behalf of the claimants, an application was submitted before the learned Tribunal stating that by mistake, the notice could not be collected from the office, therefore, it was prayed that fresh notice be given for publication in the newspaper. However, the learned Tribunal by its order dated 28.4.2000 dismissed that said application and after framing the necessary issues, the next date was fixed for evidence of the claimants. Aggrieved of this order, the petitioners have filed this writ petition.

(2). By passing the impugned order dated 28.4.2000 (Annex. 3) dismissing the application dated 28.4.2000 (annex.2) to serve the respondent no. 2 owner by publication, a gross injustice is done to the claimants- petitioners. To proceed with the claim petition without service to the owner of the offending vehicle would be an exercise in futility because even if the claimants succeed to prove their claim before the Tribunal, the award could not be passed against the insurance company. The reasons assigned by the learned Tribunal in rejecting the application of the petitioners are wholly unsustainable. The learned Tribunal ought to have considered the fact that this is an old claim petition filed by the poor claimants, particularly when on earlier occasion the Tribunal ordered to serve the respondent no. 3 by a public notice, then there was no reason for the learned Tribunal to dismiss the subsequent application on 28.4.2000. Thus, the impugned order passed by the learned Tribunal on the face of it is illegal and liable to be quashed.

(3). It may be staled that the application submitted by the petitioners-claimants before the Tribunal was never objected by the driver or the insurance company.

(4). Under the circumstances, I am of the opinion that the impugned order at Annex. 3 passed by the learned Tribunal is required to be set aside.

(5). Accordingly, this petition is allowed, the impugned order at Annex. 3 dated 28.4.2000 passed by the learned Tribunal dismissing the application of the petitioners dated 28.4.2000 (Annex.2) is hereby quashed and set aside. The application dated 28.4.2000 (Annex.2) is hereby granted. The learned Tribunal shall now permit the petitioners to serve the respondent No.3 - owner of the vehicle by public notice.

(5). Stay petition is also disposed of.

Same Court & Year Rajasthan · 2000 Same Parties Ram Devi and ors. vs Motor Accident Claims Tribunal and ors. Same Subject Motor Vehicles Same Judge B.J. Shethna, J. Acts & Sections Motor Vehicles Act, 1988 - Sections 140 and 166

Motor Vehicles