Prakash Harinarayan Mantri vs Sumitra Gajanan Wagh and Others

A.S. Chandurkar, J.—This appeal filed under Section 173 of the Motor Vehicles Act, 1988 takes exception to the judgment dated 1-3-2013 passed by the learned Chairman, Motor Accident Claims Tribunal, Buldhana allowing the petition filed under Section 166 of the said Act against the appellant.

In an accident that occurred on 2-8-2005, one Gajanan who was the husband of respondent No. 1, father of respondent Nos. 2 & 3 and son of respondent No. 4 died. Said accident occurred on account of a dash given by a Truck bearing Registration No.MH 21 5794 owned by the appellant. The respondent nos.1 to 4, therefore, filed aforesaid proceedings seeking compensation of an amount of Rs. 1,00,000/- against the appellant.

The appellant was attempted to be served at his shop premises on three occasions. The service, however, could not be effected. On the fourth occasion, the summons was served on his nephew. As the appellant remained absent, the proceedings were decided by treating the appellant ex parte.

The respondent No. 1 filed an affidavit and was examined vide Exhibit-24. It was stated that the deceased was serving in the military and was receiving salary of Rs. 9,000/- per month. As the appellant was absent, respondent No. 1 was not cross examined. The learned Chairman thereafter considered the material on record and found that the claimants were entitled for compensation of Rs. 13,05,000/-. By the impugned judgment, the claim petition was allowed.

Shri K.R. Lule, learned Counsel for the appellant advanced twofold submissions. According to him, the summons were not duly served on the appellant in terms of provisions of Order 5 Rule 15 of the Civil Procedure Code. It was submitted that said provisions require service at the place of residence and not at the place of business. The same was also not served on the member of the family who was residing with him. It was then submitted that even on merits, the Tribunal was not justified in awarding higher compensation than what was claimed by the claimants. There was no evidence in that regard led by the claimants. Without prejudice it was submitted that even if a case for higher compensation was made out, the procedure as prescribed by the Division Bench in Municipal Corporation of Greater Bombay (B.E.S.T. Undertaking) Vs. Kisan Gangaram Hire and others, was not followed and therefore, the impugned order was vitiated. He, therefore, prayed for setting aside the impugned order.

Shri A.B. Moon, learned Counsel for the respondents supported the impugned judgment. It was submitted that the appellant was duly served as copy of the summons was duly received by his nephew. Despite knowledge of the proceedings, the appellant did not choose to contest the same. It was, therefore, submitted that the claimants could not be blamed for absence of the appellant. It was then submitted that the amount of compensation granted was just and proper. He submitted that the Tribunal had jurisdiction to grant higher compensation than what was claimed in the claim petition. He submitted that in absence of any cross-examination, the Tribunal was justified in coming to the conclusion that the income of the deceased was Rs. 9000/- per month. He, therefore, submitted that there was no case for interference in the appeal.

With the assistance of the learned Counsel for the parties, I have gone through the records of the case. I have also considered respective submissions. The following point arises for determination: Whether the judgment of the Tribunal deserves to be interfered with?

In so far as the aspect of service of the summons on the appellant is concerned, the record indicates that on three occasions attempt was made to serve the summons on the appellant from where he was doing his business. On three occasions it was found that the appellant was not available. On 31-3-2007, the summons was served on his nephew who was present at the given address. The bailiff report indicates that on making enquiries it was informed that the appellant had gone out and hence, the summons was served on his nephew who was an adult person at said premises. The appellant has not disputed the correctness of the address mentioned in the summons nor has denied acceptance of said summons by his nephew. It, therefore, cannot be said that the appellant was not duly served with summons before the Tribunal. In any event, the provisions of Order 5 Rule 15 of the Code as amended by the State of Maharashtra permit service to be made on any adult male member of the family. Considering the fact that the appellant was doing business from said premises and service was effected on his nephew, it cannot be held that such service was improper. Insistence for service on the residential address in the present case is misconceived.

The record indicates that before the Tribunal, the claimants had attempted to examine a witness to prove the income of the deceased. An application below Exhibit-34 for issuing witness summons was moved on 22-6-2011 and the same was allowed by the Tribunal. On 16-8-2011, the process fees of Rs. 2200/- were also deposited. The record further indicates that two notices were issued to the Officer -Incharge of records at Banglore. The Tribunal, however, without awaiting for return of said notices passed an order below Exhibit-1 on 22-2-2013 stating that evidence for the claimant had been closed. It thereafter adjudicated the proceedings finally.

The Division Bench in Municipal Corporation of Greater Bombay (supra) has held that though the Tribunal is empowered to grant compensation exceeding the amount claimed, it is necessary to follow certain prescribed procedure to enable the opposite party to contest the claim. In para 11 of said judgment, the procedure to be followed has been prescribed. The right of the claimants to receive higher compensation is well recognized in view of judgment of the Supreme Court in Rajesh and Others Vs. Rajbir Singh and Others, relied upon by the learned Counsel for respondent Nos. 1 to 4. However, in the present case, the prescribed procedure has not been followed. Moreover, despite issuing witness summons the Tribunal proceeded to decide the proceedings without waiting for said summons to be duly served. In aforesaid background, therefore, it will be necessary to direct the Tribunal to reconsider the proceedings in accordance with law.

It is, however, to be noted that the claimants have not received the amount of no fault liability. It is further to be noted that total compensation claimed by them was Rs. 1,00,000/-. At this stage, Shri K.R. Lule, learned Counsel for the appellant after obtaining instructions from the appellant who is present in the Court submitted that within a period of 15 days from today, an amount of Rs. 1,00,000/- would be paid to the claimants without prejudice to his rights and contentions.

Accordingly, the following order is passed:

(1) The judgment dated 1-3-2013 passed in M.A.C.P. No. 60/2006 is set aside. The proceedings are remanded to the Claims Tribunal, Buldhana for fresh adjudication in accordance with law. This is, however, subject to the appellant''s paying a sum of Rs. 75,000/- to the respondent Nos. 1 to 3 and Rs. 25,000/- to respondent No. 4. It is clarified that out of the total amount of Rs. 1,00,000/- to be paid by the appellant, the sum of Rs. 50,000/- is towards no fault liability. The remaining amount of Rs. 50,000/- is by way of interim compensation subject to final outcome of the proceedings.

(2) If aforesaid amounts are duly paid to said claimants within a period of 15 days from 5-10-2015, the Tribunal shall take up the proceedings for fresh consideration.

(3) The parties shall appear before the Tribunal on 5-10-2015. The records be sent forthwith.

(4) The petition shall be decided expeditiously and by the end of March, 2016.

(5) The appeal is partly allowed in aforesaid terms. No costs.