Allanoor and ors. Vs. Dilip Singh and ors. - Court Judgment

Shiv Kumar Sharma, J.

1. In this appeal 'substantial justice' and 'technical considerations' are pitted against each other. Background facts

2. A few facts are required to be set out at the outset. The claim petition was filed on 4.8.1981 by the family members of deceased Shah Veenoor, who died on 5.2.1981 in a truck accident. Respondents Dilip Singh, Bagicha Singh and Ajmer Singh were ordered to be summoned by the learned Tribunal but the claimants did not file process fee. Ultimately, learned Tribunal directed the claimants to publish the summons of the said persons in the newspaper but claimants did not comply the order. Vide order dated 8.7.1993 the Tribunal refused to summon them and the case was posted for adjudication of the issue as to whether the claim petition was maintainable in absence of the driver and owner of the vehicle. However, the claimants moved an application under Section 151, Civil Procedure Code on 12.8.1993 to the effect that Ajmer Singh be ordered to be summoned again as his new address became known to the claimants.

3. The learned Tribunal dismissed the claim petition vide order dated 18.8.1993 observing that the liability could not be fastened on the owner of the vehicle in question as he could not have been summoned and there being no negligence on the part of the owner, no compensation in that event could be realised from the insurance company as well.

4. The appellants herein, through this appeal, have questioned the aforesaid judgment of the learned Tribunal.

5. The questions that fall for consideration are as to what is the effect of default in taking steps for service of process by the claimants? Can the claim application be dismissed for default in taking steps for process?

Statutory background

6. In order to answer these questions necessary statutory provisions are required to be looked into. Chapter X of the Rajasthan Motor Vehicles Rules, 1990 (for short 'the Rules 1990') pertains to 'Claims Tribunal'. Rule 10.8 of the Rules 1990 provides thus:

10.8 Notice to the parties involved.-

(1) If the application is not dismissed under Rule 10.7, the Claims Tribunal shall send to the owner or the driver of the vehicle or both from whom the applicant claims relief and the insurer, a copy of the application, together with the notice of the date on which it will dispose of the application and may call upon the parties to produce on that date any evidence which they may wish to tender.

(2) Where the applicant makes a claim for compensation under Section 140 of the Act, the Claims Tribunal shall give notice to the owner and insurer, if any, of the vehicle involved in the accident directing them to appear on the date, not later than fifteen days from the date of issue of such notice. The date so fixed for such appearance shall also be not later than fifteen days from the receipt of the claim application filed by the claimant. The Claims Tribunal shall state in such notice that in case they fail to appear on such appointed date, the Claims Tribunal shall proceed ex parte on the presumption that they have no contention to make against the award of compensation.

7. At this juncture it is also necessary to refer to Sections 166 and 169(1) of the Motor Vehicles Act, 1988 (for short 'the Act 1988') which read as under:

Section 166(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.(2) Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed.

(3) Omitted.

(4)The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act.

(Emphasis supplied)

Section 158(6) reads as under:

As soon as any information regarding any accident involving death of or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal or insurer.

(Emphasis supplied)

Section 169(1) provides as under:

In holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

(Emphasis supplied)

Rival contentions

8. Mr. Resham Bhargava, the learned Counsel for the appellant submitted that it was the duty of the learned Tribunal to effect the service of the summons on the respondents. Even if no steps were taken by the claimants, the Tribunal was duty bound to summon the respondents. The Tribunal could not have declined to issue the process and thereafter to dismiss the claim application. In support of this contention Mr. Bhargava, learned Counsel placed reliance on Dhani Ram v. Gurdip Singh 1993 ACJ 49 (MP), the M.P. High Court propounded as under:

For ensuring service on the non-applicants, when a petition is made for compensation for death occurring in motor accident it shall be duty of the Claims Tribunal to do the needful. Non-applicants are to be served anyhow and steps for process etc. are not to be taken by the applicant-claimants. Therefore, there could not be any lapse or default on the part of claimants-appellants. They had not sinned initially and that was not compounded at any time subsequently.

9. Mr. Virendra Agrawal, the learned Counsel for the respondent insurance company, on the other hand, supported the impugned judgment and canvassed that claimant-appellants cannot derive benefit out of the laches on their part.

Substantial justice v. Technical considerations

10. Giving my careful consideration to the facts and circumstances of the case and submissions made by the learned Counsel for the parties, it appears to me that in the case on hand 'substantial justice' and the 'technical considerations' are pitted against each other. It is an astonishing fact that the learned Tribunal could not effect service of summons in ten years' time. The main object behind the constitution of Motor Accidents Claims Tribunals was to impart speedy justice to the dependants of a breadwinner who died in a motor accident. The framers enacted Section 169(1) of the Act 1988 directing the Tribunals to follow such summary procedure as they think fit to make inquiry of the accident claims. The purpose of enacting Section 169(1) was to keep away the Tribunals from the procedural technicalities that dominate the trial of a suit in civil court.

11. In Collector, Land Acquisition, Anantnag v. Katiji, (1987) 2 SCC 107, the Apex Court observed that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

(Emphasis supplied)

12. In a recent judgment in United Bank of India v. Naresh Kumar AIR 1997 SC 3, their Lordships of the Supreme Court again propounded that 'Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in courts, under the Code of Civil Procedure to ensure that injustice is not done to any party who has a just cause. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.

(Emphasis supplied)

13. It is well settled that the driver, the owner and the insurance company are jointly and severally liable to pay compensation and the claim petition can be filed against any one of them. The claim petition cannot be dismissed on the ground of non-joinder or misjoinder of parties. The learned Tribunal did not properly evaluate the objects of the Act of 1988.

Speedy justice

14. In order to administer speedy justice, the Motor Accidents Claims Tribunals should effectively come out of the procedural web and the dogmatic approach inherited from the civil courts. The abnormal delay in the disposal of the claim petitions has shaken the confidence of the claimants. The concept of Lok Adalat is one of the remedies suggested to overcome the delay but it can be effective only in those cases in which the parties are likely to arrive at a compromise. Therefore, the only effective way to obviate delay in the disposal of claim petition is to have some check over the procedural delays.

(Emphasis supplied)

15. Maximum time of the Tribunals is consumed in effecting the service of summons on the driver and the owner of vehicles is evident from the instant case that even after a lapse of ten years the learned Tribunal could not effect the service of summons. The time that is consumed in the service of summons can be saved by attracting the provisions contained in Order 3, Rule 5 of the Code of Civil Procedure. But before adverting to the said provisions, it is necessary to discuss certain provisions of the Indian Penal Code and the Code of Criminal Procedure, 1973. As soon as the motor accident occurs, case against the driver of the vehicle is registered in the police station having jurisdiction over that area. The vehicle in question is seized by the investigating officer. The vehicle can be released by the Judicial Magistrate having jurisdiction over the area, under the provisions contained in Sections 451 or 457, Code of Criminal Procedure on an application moved by the lawful owner of the vehicle. Offences under Sections 279, 337, 338 and 304A are bailable. The driver of the vehicle is released on bail invariably by the Investigating Officer of the police station. When charge-sheet is filed before the Judicial Magistrate, the driver has to file surety bonds for the appearance before the Judicial Magistrate. The lawful owner and the driver of the vehicle though both appear before the Judicial Magistrate yet they avoid service of summons issued by the Motor Accidents Claims Tribunal. So in order to ensure their presence before the Tribunal, Judicial Magistrate may impose certain conditions to be incorporated in the bail bonds of the driver and the surety bonds of the lawful owner of the vehicle and if the said conditions are not complied by them then in that event their bonds may be cancelled.

16. This takes me to the provisions of Order 3, Rule 5, Code of Civil Procedure, which provides thus:

5. Service of process on pleader- Any process served on the pleader who has been duly appointed to act in court for any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the court otherwise directs, shall be as effectual for the purposes as if the same had been given to or served on the party in person.

17. The summons issued by the Motor Accidents Claims Tribunal under Rule 10.8 of the Rules 1990 can be served on the counsel of the driver and the lawful owner of the vehicle, appeared before the Judicial Magistrate for the purposes of filing bail bonds and the surety bonds. While enacting Sub-section (4) of Section 166 of the Act 1988, the framers had also in their mind the helping role of investigating agency. This is an important provision for administering speedy justice. The Tribunal has to treat the report of police officer as an application for compensation under the Act of 1988.

18. As already stated by me herein-above that Section 169(1) of the Act 1988 was enacted by the framers for keeping out the Tribunals of the procedural web and the dogmatic approach inherited from the civil courts. The Tribunals, under this section, are required to follow such summary procedure as they think fit to make inquiry of the accident claims. Therefore, for ensuring service on the driver and the owner of vehicle in the case on hand, the learned Tribunal was duty bound to do the needful. They ought to have been served any how by the learned Tribunal. The lapses if any could not have been attributed to the claimants. I fully endorse the view of the learned Judge of M.P. High Court, expressed in Dhani Ram v. Gurdip Singh 1993 ACJ 49 (MP). Learned Tribunal, therefore, committed illegality in dismissing the claim petition.

19. Consequently, I allow this appeal and set aside the impugned judgment. I remit the case to the Motor Accidents Claims Tribunal, Ajmer for deciding the claim petition afresh. All the respondents have already been served. They are directed to appear before the learned Tribunal on 22.5.1997. Costs easy. Record of the case be sent back forthwith so as to reach the Tribunal before 19.5.1997.

Guidelines

20. Before parting with, I intend to issue following guidelines for the Motor Accidents Claims Tribunals and Judicial Magistrates:

(i) Summons shall be issued by the Tribunals under Rule 10.8 of the Rules of 1990 simultaneously to the direct addresses of the driver and owner of the vehicle and also through the concerned Judicial Magistrate having jurisdiction over the area where the accident occurred. The summons issued through Judicial Magistrate shall be in the names of the driver and owner of the vehicle through their advocates and shall be served under Order 3, Rule 5, Civil Procedure Code. Judicial Magistrate shall assist in serving the summons with the help of the process server.

(ii) The Judicial Magistrate having jurisdiction over the area where accident occurred, while accepting the bail bonds of the driver and the surety bonds of the owner, shall impose conditions to be incorporated in the bonds that their advocates shall accept the summons issued by the Tribunal in their names, if the advocates fail to accept the summons, their bonds may be cancelled.

(iii) The Deputy Registrar (Judicial) is directed to forward copies of this judgment to all the Claims Tribunals of Rajasthan as well as to the learned District Judges, who shall further communicate it to the Judicial Magistrates. The learned Judges of the Tribunals and the learned Judicial Magistrates are expected to follow the aforesaid guidelines in order to impart speedy justice to the litigants keeping in view the legal maxim salus populi est regard for public welfare is the suprema lex which comprehends that highest law.