Harcharan Kaur vs Major Karamjit Singh and Others

Rajindra Nath Mittal, J.—This judgment of mine will dispose of F.A.O. No. 154 and Civil Miscellaneous Application No. 4845 of 1973. The appeal has been filed against the judgment of the Motor Accident Claims Tribunal, Jullundur (hereinafter referred to as ''the Tribunal'') dated March 26, 1973.

Briefly, the facts of the case are that Major Karamjit Singh alongwith his wife, Charanjit Kaur, and his infant daughter, was going on the left side of the road, on scooter No. PNQ-1162 from Jullundur City to Chak Hakim, near Phagwara, on July 29, 1963. Major Karamjit Singh was driving the scooter. When he reached near Masand Motors Workshop, Jeep No. PNQ-2976, driven by Tarlok Singh, Head Constable, came from the opposite direction at a high speed. The jeep on account of the negligence of the driver collided against the scooter of the Petitioner. On account of the collision, the Petitioners and their daughter fell down. Both of the Petitioners received serious injuries in the accident. Soon thereafter, a Military Jeep reached there, in which the Petitioners and their child were removed to the Military Hospital, Jullundur Cantt. Their injuries were examined there by Major Shukla, Medical Officer, on the same day, who found the following injuries on the person of the Petitioners:-

(1) Major Karamjit Singh (1) Compound fracture of right arm.

(2) A deep wound on right arm.

(2) Shrimati Charanjit Kaur (1) Fracture of ribs 10, 11 and 12.

(2) Shock.

The owners of the jeep involved in the accident were G.W. Balkar and Company, Respondent No. 1, and Harcharan Kaur, Respondent No. 2. The Petitioners 1 and 2 filed an application for recovery of Rs. 3,93,600/- and Rs. 93,200/- respectively. The application was contested by the Respondent No. 1. Tarlok Singh, Head Constable No. 3, did not appear and was proceeded against ex-parte. Harcharan Kaur, Respondent No. 2, appeared through a counsel but did not file any written statement inspite of repeated opportunities. Respondent No. 1 in the written statement stated that he had transferred the jeep to Harcharan Kaur, Respondent No: 2 on July 22, 1967. As such, it was not a necessary party. It further pleaded that the accident took place due to negligence of the Petitioner No. 1. and that, in any case, the compensation claimed by the Petitioners was excessive. The trial Court held that the accident took place on account of rash and negligent driving of Tarlok Singh, that Respondent No. 1 had sold the jeep to Respondent No. 2 about a year before the accident and that the Petitioners 1 and 2 were entitled to receive Rs. 74,004/-and Rs. 3059.50 P. respectively, on account of compensation. It was further held that Harcharan Kaur, Respondent No. 2, was only liable to pay compensation to the Petitioners. Respondent No. 2 has come up in appeal against the judgment of the Tribunal to this Court.

The appeal was filed by Harcharan Kaur on July 16, 1973, without a certified copy of the judgment. She filed the certified copy of the judgment on July 27, 1973, alongwith Civil Miscellaneous Application No. 4845 of 1973. In the Civil Miscellaneous Application, she stated that'' she filed the above mentioned appeal on July 16, 1973, alongwith an uncertified copy of the judgment of the Tribunal, dated March 26, 1973. The judgment was passed by the Tribunal ex parte and he came to know about it on July 14, 1973, from the Chowkidar of the village who informed her that the opposite party had taken out execution proceedings against her u/s 110-E of the Motor Vehicles Act, 1939 (hereinafter referred to as ''the Act''). She, on the same day, went to Jullundur, and obtained an uncertified copy of the award which was attached with the grounds of appeal. July 15, 1973, happened to be a Sunday. She, therefore, filed the appeal on July 16, 1973, with an uncertified copy of the judgment. She filed an application for obtaining the certified copy of the judgment on July 16, 1973, and obtained the same on July 25, 1973. She, therefore, prays that the delay in filing the appeal may be condoned.

In order to appreciate the application, it is necessary to go into the orders of the Court of various dates. The claim was filed before the Tribunal on September 16, 1968. It has been admitted by that the Appellant had been served for January 31, 1969. Thereafter, she engaged Mr. N.B. Kaura, Advocate, to conduct the case on her behalf. The service of the case was completed on March 10, 1990 Mr. N.B. Kaura had been appearing for her on all the hearings, except one, till May 5, 1970. Mr. Avtar Singh Sohal, another Advocate, in whose favour a power-of-attorney was given by the Appellant on January 20, 1970, appeared on her behalf on March 10, 1970. The issues were framed in the case on August 31, 1971. The Appellant, however, did not file any reply inspite of the fact that various adjournments were given for filing the written statement. After May 5, 1970, Mr. Rajesh Kapur, Advocate, started appearing on her behalf, and he continued to appear till February 6, 1973. The Petitioners closed their evidence on August 22,1972. Thereafter, the case of the Respondents. The Court directed that diet money and process-fee be deposited within five days. Respondent No. 1 examined his evidence on various dates. The Appellant, however, did not summon any witness nor examined any. On February 6, 1972, Mr. Rajesh Kapur made a statement that he served a registered notice to the Appellant seeking further instructions from her about the case but no reply had been received from her. She had also not turned up that day to give him instructions. In the aforesaid circumstances, he pleaded no instructions in the case. The Court after making the observations that Harcharan Kaur had not turned up and her counsel pleaded no instructions, passed an order that ex parte proceedings be taken against her. Thereafter, the arguments were heard in the case and the judgment was pronounced on March 26, 1973. The aforesaid facts clearly show that the Appellant had been served and she had been appearing through a counsel but she neither filed any written statement nor led any evidence. Her counsel had to withdraw as she did not appear inspite of a registered notice having been sent to her by him. It is contended by the learned Counsel for the Appellant that in fact she had not authorized Mr. Rajesh Kapur to appear on her behalf and that she never received any notice from him. He also contends that she had left for the United Kingdom in the month of April, 1969, and thereafter she never came to know about the proceedings. No affidavit has been filed by her mentioning all the aforesaid facts. Mr. Rajesh Kapur appeared on more than 30 hearings during a period of about three years. It appears improbable that a counsel will go on appearing for the client without any instructions from him/ her. She has not given the date of her return from the United Kingdom. Thus it is not clear as to when she returned from there. When she had been served once, it was her duty to find out from her lawyer as to what was happening to her case. Mr. Raipuri has vehemently argued that the counsel had pleaded no instructions and, as such, it was the duty of the Court to intimate the Appellant again. I regret my inability to accept the said contention. The facts show that she was not interested in the litigation. In the aforesaid circumstances, the ex parte proceedings were correctly taken by the Tribunal. In case, ex parte proceedings had been taken and a judgment had been given against the Appellant, it would be presumed that she knew about the judgment. She stated in Civil Miscellaneous Application No. 4845 of 1973, which is supported by an affidavit, that she came to know about the judgment from the Chowkidar. No affidavit of the Chowkidar has been produced to substantiate the allegation. In my view, no sufficient ground has been made for condoning the delay in filing the appeal. The appeal is clearly barred by limitation.

The learned Counsel for the Appellant sought to argue the appeal on merits. The Appellant has not taken any ground in the grounds of appeal challenging the judgment on merits. In view of the fact that the appeal is barred by limitation, the learned Counsel for the Appellant is also not entitled to argue it on merits.

For the reasons recorded above, the appeal fails and the same is dismissed with costs. Counsel''s fee Rs. 100/-.