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Purshotam Lal Vs. Inder Kishan Khanna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. Nos. 312 and 319 of 1975
Judge
Reported in[1983]53CompCas855(All)
ActsMotor Vehicles Act, 1939
AppellantPurshotam Lal
Respondentinder Kishan Khanna
DispositionAppeals dismissed
Excerpt:
- - we are, therefore, not satisfied that any prejudice has been caused to the appellant on account of want of intimation of the transfer of the claim petitions from the court of the district judge to the court of the iiird additional district judge on may 6, 1974. it appears to us that the parties or their counsel at least have been duly intimated by the court or they had obtained information of the transfer otherwise......saidto have died on the spot while the other son, anil kumar, died on way to the hospital. the two claim petitions in respect of the claims arising from the death of the two sons were filed by their parents who are respondents nos. 1 and 2 in this appeal. the claim petitions were contested by the respondents but on the relevant date the appellant and respondent no. 3, both absented (themselves) and their counsel were also not present. the evidence in the claim petition was, therefore, recorded ex parte partly on august 9, 1974, and partly on january 17, 1975. thereafter the arguments were heard on february 19, 1975, and the award was made on february 28, 1975, decreeing both the claim petitions for a sum of rs. 25,000 each. against the ex parte decision the appellant moved applications.....
Judgment:

1. These F.A.F. Os arise out of two claim petitions which have been filed by respondents Nos. 1 and 2 against the appellants and respondents Nos. 3 and 4. Two minor sons of the claimants, Anil Kumar and Sunil Kumar, who were twins met with a fatal accident on April 3, 1968, at about 1.45 p.m. near Narauna crossing in front of Surya Sadan Civil Road, Kanpur, involving truck No. UPJ 633 belonging to the appellant and being driven at the relevant time by respondent No. 3. The truck is alleged to have been insured with respondent No. 4 Sunil Kumar is saidto have died on the spot while the other son, Anil Kumar, died on way to the hospital. The two claim petitions in respect of the claims arising from the death of the two sons were filed by their parents who are respondents Nos. 1 and 2 in this appeal. The claim petitions were contested by the respondents but on the relevant date the appellant and respondent No. 3, both absented (themselves) and their counsel were also not present. The evidence in the claim petition was, therefore, recorded ex parte partly on August 9, 1974, and partly on January 17, 1975. Thereafter the arguments were heard on February 19, 1975, and the award was made on February 28, 1975, decreeing both the claim petitions for a sum of Rs. 25,000 each. Against the ex parte decision the appellant moved applications under Order 9, Rule 13 (CPC), for setting aside the awards and also applications under Section 5 of the Limitation Act for condoning the delay. The appellant also preferred appeals against awards which are being disposed of now. We have already rejected the appeals arising out of the dismissal of the application under Order 9, Rule 13 today.

2. The learned counsel for the appellant has urged that he has a right to argue the appeal on the available evidence against the award given by the Claims Tribunal. His main submission was that the court had no jurisdiction to transfer the case from one court to another without proper intimation to the parties. The claim petitions had been pending in the court of the District Judge, Kanpur, exercising the powers of a Claims Tribunal. For one reason or the other the case could not be taken up for a long time and probably for this reason the court directed that the claim petitions be transferred to the court of the Third Additional District Judge. This order was made on May 6, 1974. After the transfer, the files of the claim petition were received by the IIIrd Additional District Judge, and from the order sheet dated July 18, 1974, it appears that the parties had been present before the court when an application on behalf of defendant No. 3 was moved for adjournment and it was allowed fixing August 9, 1974, for final hearing. We have seen the original order sheet and it appears that on July 18, 1974, when the hearing of the case was adjourned for August 9, 1974, the appellants were present in court and appear to have signed on the order sheet. We have compared the signatures of Purshottam Lal on his vakalatnama and on the various other applications and those on the margin of the English order sheet dated July 18, 1974, and it appears to us that after the transfer of the case he had the knowledge as to where the case had been transferred and he was also present in the transferee court also. If that be so then it would not be fair for the appellant to contend that the order of transfer was illegal and that they were not aware as to when the case had been transferred. It would have been understandable if in their application for setting aside the ex parte award the respondent had stated that they were not aware of the transfer and that on the day fixed they remained sitting in the court where the claim case was originally pending. That is not the position here. We are, therefore, not satisfied that any prejudice has been caused to the appellant on account of want of intimation of the transfer of the claim petitions from the Court of the District Judge to the Court of the IIIrd Additional District Judge on May 6, 1974. It appears to us that the parties or their counsel at least have been duly intimated by the court or they had obtained information of the transfer otherwise. It cannot, however, be said that the respondent did not have any knowledge of the fact of the transfer of the case to the Court of IIIrd Additional District Judge. We are not at all impressed by this highly technical plea of the appellants. We cannot close our eyes to the fact that the accident had taken place on April 3, 1968, and now after 12 years we cannot permit the appellant to contest the suit due to this slight technical flaw that there was no intimation, of the transfer of the case, to them. It may be difficult for the claimant to get any evidence now. Besides this, the Act is benefactory in nature and the court must keep in mind the object which was sought to be achieved by the provisions of the Act, i.e., early disposal of the claim case in case of accidents by motor vehicles. We are, therefore, not inclined to take a technical view in the matter.

3. The learned counsel for the appellant next tried to argue on the merits of the petition and submitted that their liability up to the extent of Rs. 50,000 should have been placed on the shoulders of the insurance company. We have perused the record and we find that originally the appellants had taken the plea in para. 17 of the written statement in which they had stated that the offending vehicle had been insured with respondent No. 3. On a request by the petitioners the appellants were directed to give particulars of the insurance for which several dates were given. Finally, the order was made on November 7, 1969, directing the opposite party No. 1 to either file the document of insurance or to furnish an explanation for the non-filing of the same. This is a detailed order, but the same was not complied with as would be apparent from the subsequent order dated December 8, 1969. Ultimately on December 22, 1969, instead of striking off the defence of O.P. No. 1 the court permitted him to withdrew the plea contained in para. 17 of the written statement. In the result the insurance company cannot now be held responsible for any liability that may be fixed on defendant No. 1. It was in the light of these facts that the court below did not give any award against defendant No. 3 in the two claim petitions and made the award only against defendant No. 1. The learned counsel has not been able to satisfy us as to how in the absence of any document the insurance liability could be fastened on the insurance company and not on the defendant-appellants. In our view the decision of the court below is absolutely correct and there is no choice except to award compensation against the defendant-appellant alone.

4. The learned counsel then wanted to argue on merits but has not been able to show any circumstances from which we may persuade ourselves to take a view different from what has been taken by the Claims Tribunal. We have ourselves gone through the evidence and the decision and we find that the findings recorded by the court below are in accordance with law and are supported by necessary evidence on the record. In the circumstances, we find there is no merit in the appeals and they deserve to be dismissed.

5. The appeals are accordingly dismissed with costs.


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