National Insurance Company Limited vs Smt. Pankajamma and Another

Hari Nath Tilhari, J.—The claimant/Respondent had died on April 3, 2000. The appellant did not move the application for substitution within ninety days from the date of death. The appeal automatically stood abated on the 3rd of July, 2000 on the expiry of the ninetieth day. No doubt, it appears that on November 3, 2000, an application had been moved on behalf of the heirs of the deceased Respondent/claimant for bringing them on record so that their cause may not suffer and case may not go exparte.

The appeal had abated on July 3, 2000. There is no question of any order being passed for abatement of the appeal. If an application for substitution is not made within ninety days, the appeal automatically abates. The Court only has to look into the question whether the appeal could be heard in the absence of the legal representatives of the deceased and there is no likelihood of two conflicting decrees being passed.

In the present case it may be mentioned, as mentioned earlier, the appeal had abated on July 3, 2000 and stood dismissed against the deceased claimant-Respondent No. 1. The law has to take its own effect. Only the procedure prescribed by law has to be followed and it was open, no doubt, to the appellant to have moved within sixty days for setting aside the abatement. That has also not been done and abatement had become final. Once the abatement against the Respondent No. 1 had taken place, it is not open to the Court itself, even by exercise of inherent powers, to allow impleadment of the heirs, because the decree passed in favour of the Respondent had become final on the expiry of period of sixty day from July 3. Now, if the appeal is to be heard on merits and in case the appeal succeeds, there is likelihood of two conflicting decrees coming into being whereunder the decree which has become final with reference to the claimant/Respondent and her heirs, it may be said that the Insurance Company is liable and they can proceed and if the appeal is allowed qua Insurance Company and owner and if it is held that the Insurance Company is not liable, there is every likelihood of a conflicting decrees to come into being. In such a case, it appears to be a proper course and it appears to be in keeping pace with the law laid down in the case of The State of Punjab Vs. Nathu Ram, , to dismiss the appeal as regards the other Respondent also.

The appeal, as such, is dismissed in toto. The application moved by the heirs of the deceased Respondent could not be entertained as abatement had already taken place.

The appeal is hereby dismissed.