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Smt. Shila Wanti and ors. Vs. R.B. Kishore Chand and Sons and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 10 of 1972 and Civil Misc. No. 711-C-II of 1977
Judge
Reported inAIR1977P& H369
ActsMotor Vehicles Act, 1939 - Sections 110 to 110F; Code of Civil Procedure (CPC) , 1908 - Order 22, Rule 11; Limitation Act, 1963 - Sections 6
AppellantSmt. Shila Wanti and ors.
RespondentR.B. Kishore Chand and Sons and ors.
Appellant Advocate Harinder Singh, Adv.
Respondent Advocate G.R. Majithia,; J.R. Mital and; V.P. Gandhi, Advs.
DispositionAppeal dismissed
Cases ReferredIndaura v. Sunder Singh Malha Singh Sana
Excerpt:
.....in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the tribunal further held that the petitioners had failed to prove that narain singh respondent no. partap chand, the present karta on record was filed on 23-3-1977, which is clearly time-barred. however, in the same judgment the learned judge observed that his observations will hold good in case of death of a claimant either at the stage of the claim or in appeal but the same will not apply in the case of death of other persons......act. the jurisdiction of the civil courts has been ousted by section 110-f of the act where any claimstribunal has been constituted for any, area. thus from the scheme of the act it is obvious that the jurisdiction of the civil courts is ousted and the claims tribunal is constituted under the act to discharge the duties which would otherwise have fallen on the ordinary civil courts of the land. the claims tribunal, therefore, possesses all the attributes of a court and has to decide the claim on the basis of the legal evidence in accordance with law by a judgment and as such for all intents and purposes it is a civil court discharging the same functions and duties in the same manner as a civil court is expected to do. in case pritpal singh v. new suraj transport co. (p.) ltd.,.....
Judgment:
ORDER

Gurnam Singh, J.

1. Gian Chand Joshi, who wasemployed as a Clerk in the Workshop Accounts Office, Railway Locomotive Workshop, Amritsar, died on 11-5-1969, after receiving injuries in an accident on the same day, with truck No. PNO 3242. Gian Chand Joshi was getting Rs. 412.25 P. M. as pay at the time of his death. Smt. Shila Wanti widow of Gian Chand Joshi and her daughters and sons filed motor accident claim application against M/s. Partap Steel Rolling Mills, Cheherta, Sh. Kailash Chand, Partner M/s. Partap Steel Rolling Mills, the Calcutta Insurance Co. Ltd., and Sh. Narain Singh, truck driver and made & claim of Rupees 1,70,413.40 Ps. Subsequently on 6-11-1969, the petitioners filed an application under Order 6, Rule 17 read with Section 151, Civil P. C. praying that the names of respondents Nos. 1 and 2 be deleted and the names of B. B. Kishore Chand and M/s. R.B. Kishore Chand & Song be substituted as they were the actual owners of the truck in question. The petitioners were allowed to make the necessary amendment on 20-11-1969 and the amended application was filed in the Court on 27-11-1969.

2. The petitioners' allegations are, that the driver of the truck, was driving the truck rashly and negligently in a crowded thoroughfare (G. T. Road) in the area of Putlighar (Amritsar), that the deceased was walking on the left side of the G. T. Road and that the aforesaid truck came from the opposite side at a terrific speed and struck him down causing serious multiple injuries.

3. Narain Singh driver of the truck, respondent No. 4, did not appear before the Tribunal and was, therefore proceeded against ex parte. Respondents Nos. 1 and 2 pleaded that the application for grant of compensation was barred by limitation as against them. They further pleaded that Narain Singh, respondent No, 4 was not their employee but he was a contractor and, therefore, they are not responsible for his act and conduct. The Insurance Company also denied their liability to pay any compensation to the petitioners. The following issues had been framed:--

1. Whether the petition is within limitation as against respondents Nos. 1 and 2?

2. Whether the accident took place due to rash and negligent driving of the truck No. PNO 3242 by its driver, If so, what is its effect?

3. Whether the petitioners have a locus standi to file this petition?

4. To what amount of compensation are the petitioners entitled and against whom?

5. Whether Narain Singh respondent No. 4 was the driver of the truck at the time of the accident and he was the employee of respondent No. 1?

4. The Motor Accident Claims Tribunal held that the claim application was barred by limitation as against respondents Nos. 1 and 2 and consequently the bar of limitation was equally effective as against the Insurance Company but it was within time so far as respondent No. 4 was concerned. The Tribunal further held that the petitioners had failed to prove that Narain Singh respondent No. 4 was an employee of respondentNo. 1 and that he was driving the truck at the relevant time. Regarding the negligence of the driver, the learned Tribunal came to the conclusion that it was a case of contributory negligence on the part of the driver and the deceased. Regarding the claim of the petitioners the learned Tribunal held that Tilak Raj petitioner was not dependent on the deceased and, therefore, he could not make any claim, while the other petitioners were hold to be entitled to make the claim. Regarding the amount of compensation, the learned Tribunal came to the conclusion that the amount of compensation would come to Rs. 49,163 but after deductions assessed at 50 per cent, and another 50 per cent, cut due to contributory negligence, the balance comes to Rs 12,290. It was further held that Mst. Shila Wanti had received Rs. 10,500 as gratuity from the Railways Department on account of the death of her husband and after deducting this amount, only Rs. 1790 would be left which could be claimed by the petitioners. However, the learned Tribunal dismissed the claim petition on the basis of the findings given on other issues.

5. Mst. Shila Wanti etc. filed this appeal challenging the findings of the learned Tribunal on all the points.

6. The learned counsel for the respondents at the outset contended that the claim had been filed against R.B. Kishore Chand and Sons through its Karta R.B. Kishore Chand and since he (R. B. Kishore Chand) has died during the pendency of the appeal and the succeeding Karta in his representative capacity or the surviving members of the family have not been substituted in time, limited by law, this appeal, therefore, will abate. According to the learned counsel for the respondents R.B. Kishore Chand had died on 22-1-1975.

7. Sh. Harinder Singh, Advocate, counsel for the appellants requested for adjournment on 24-2-1977 for filing an application for bringing the legal representatives of R.B. Kishore Chand on the file and consequently he filed C. M. No. 711/C-II of 1977, for bringing Sh. Partap Chand, Karta, on the record to represent respondents Nos. 1 and 2. This civil miscellaneous application will also be disposed of by this very order,

8. In the aforesaid application Sh. Harinder Singh counsel for the appellants has not given the date of death of R.B. Kishore Chand, rather it is stated therein that the date of death is net known. At the time of arguments, Sh. Harinder Singh counsel for the appellants, conceded that R.B. Kishore Chand had died on 22-1-1975. Thus if Art, 120 of the Limitation Act of 1963 is applicable in this case, the legal representatives of R.B. Kishore Chand have not been brought on the record within the period of limitation. Sh. Harinder Singh, learned counsel for the appellants, on the other hand contended that his application for bringing the legal representatives of R.B. Kishore Chand on record will be governed by Art. 137 of the Limitation Act, 1963, and the same could be filed within 3 years from the date on which the right to apply accrued. Thus according to him his application is within lime.

9. The learned counsel for the appellants further pointed out that out of the appellants, three appellants are minors and, therefore, in view of Section 6 of the Limitation Act, 1963, their claim application cannot be held to be barred by time.

10. Under Section 110 of the Motor Vehicles Act (hereinafter referred to as the Act), Motor Accident Claims Tribunal (hereinafter referred to as Claims Tribunal) is constituted by the State Government for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. An application for compensation is made under Section 110-A of the Act and on receipt of the application, the Claims Tribunal holds an enquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. Under Section 110-C (2) of the Act, the Claims Tribunal has all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Cr. P. C. Right of appeal to the High Court is provided under Section 110-D of the Act. The jurisdiction of the Civil Courts has been ousted by Section 110-F of the Act where any ClaimsTribunal has been constituted for any, area. Thus from the scheme of the Act it is obvious that the jurisdiction of the Civil Courts is ousted and the Claims Tribunal is constituted under the Act to discharge the duties which would otherwise have fallen on the ordinary Civil Courts of the land. The Claims Tribunal, therefore, possesses all the attributes of a Court and has to decide the claim on the basis of the legal evidence in accordance with law by a judgment and as such for all intents and purposes it is a Civil Court discharging the same functions and duties in the same manner as a Civil Court is expected to do. In case Pritpal Singh v. New Suraj Transport Co. (P.) Ltd., Amritsar, 1974 Ace CJ 277 : (AIR 1974 Punj 39), R, N. Mittal, J., held that (at p. 42 of AIR):--

'In a case where recovery is to be made on account of some injury or death under the Act, an application is to be filed in Tribunal. The application will be in the nature of a suit.'

11. Similarly in Shardaben v. M. I. Pandya, 1971 Acc CJ 222 : (AIR 1971 Guj 151), J, B, Mehta, J., following the case Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-operative Bank Ltd., AIR 1967 SC 1494 (1499), held that:

'The Tribunal is for all intents and purposes a Civil Court discharging the same functions and duties in the same manner as a Civil Court is expected to do.'

12. In Hayatkhan v. Mangilal, 1970 Acc CJ 254 : (AIR 1971 Madh Pra 140), the Division Bench of Indore of Madhya Pradesh High Court held, that an application under Section 110-A of the Motor Vehicles Act is a suit falling within the scope of the word 'suit' used in Section 6 of the Limitation Act.

13. Since the proceedings before the Claims Tribunal resemble the proceedings in a Civil Court and the Claims Tribunal for all intents and purposes discharges the same functions and duties in the same manner as a Court of law is expected to do, the proceedings before the Tribunal are in the nature of a suit. The learned counsel for the appellant had relied upon Dula Singh v. Union of India, (1971) 73 Pun LR 432 and contended that the claim application is an application and, therefore, Article 120 of the Limitation Act does not apply. Dula Singh v. Union of India (supra), was a case under Article 226 of the Constitution of India and their Lordships held thatArticle 120 of the Limitation Act does not apply to an application made in a writ petition, for bringing the legal representatives of the deceased-petitioner or respondent on record. It was further held that the Article applicable was 137 of the Limitation Act under which the period of limitation was three years from the date when the right to apply accrues. This authority is not applicable in the instant case. In view of what has been said above, it is held that in this case Article 120 of the Limitation Act will apply and not Article 137.

14. R.B. Kishore Chand, who was the Karta of the respondent firm admittedly died on 22-1-1975 and the application for bringing in Sh. Partap Chand, the present Karta on record was filed on 23-3-1977, which is clearly time-barred. Under Order XXX, Rule 1, Civil Procedure Code, any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action. An explanation was added to this rule by the Punjab and Haryana (Chandigarh) High Court, which reads as under:

'This rule applies to a joint Hindu family trading partnership.'

15. In the instant case all the members of the firm R.B. Kishore Chand and sons, were not made parties in the claim application and the firm was represented by R.B. Kishore Chand as the Karta. In Union of India v. Radha Kishan Sohan Lal. AIR 1962 Punj 493, it has been held that (at pp. 494, 495):

'Where a decree is obtained by the karta of a joint Hindu family alone in his representative capacity and during the pendency of appeal against him he dies and no application for substitution of the succeeding karta or all the surviving members of the family is made by the appellant within 90 days of such death, the appeal abates by virtue of Order 22, Rule 3 read with Order 22, Rule 11. The abatement cannot be set aside if the application for setting aside the abatement has been made after an inordinately long delay and, the explanation for the appellant having remained in ignorance is attributable to want of care. Ignorance of death per se does not furnish sufficient ground for setting aside abatement.

16. Union of India v Radha Kishan Sohan Lal (AIR 1962 Punj 493) (supra),was considered by a Full Bench of this Court in Dharamdas Gokaldas v. Krishan Chand Hari Chand, AIR 1966 Punj 40, and it was observed that (at p. 43):

'It, therefore, cannot be said that the legal principle enunciated and acted upon in that case deserves to be overruled being in conflict with the law as laid down in the earlier decision.'

17. As discussed above, the claim petition is in the nature of a suit and the provisions of Civil Procedure Code will apply to it. In this view I am supported by the judgment in State of Punjab v. Brij Mohan Singh, 1975 Acc CJ 372 (Punj), in which Muni Lal Verma, J., in para No. 11 of the judgment observed that the principles of Rule 6 of Order 22, Civil P. C. will also be applicable to the proceedings under the Act before the Claims Tribunal.

18. In Smt. Shanti Devi v. General Manager, Haryana Roadways, Ambala, 1971-73 Pun LR 543 : (AIR 1972 Punj 65) (FB), it has been held that (at p. 72 of AIR):

'The proceedings before the Claims Tribunal closely resemble to the proceeding in a Civil Court and the Claims Tribunal for all intents and purposes discharges the same functions and duties in the same manner as a Court of Law is expected to do. The proceedings before the Claims Tribunal are not in the nature of arbitration proceedings and that the Claims Tribunal while disposing of the claims acts as a Court.'

19. Now it is to be seen as to whether the provisions of Order 22, Civil P. C. are applicable to the proceedings under the Motor Vehicles Act or not In New Suraj Transport Co. v. Ruby General Ins Co., 1972 Acc CJ 416 (Punj). Rajindra Nath Mittal. J., observed that the proceedings under the Motor Vehicles Act did not abate under Order 22, Civil Procedure Code, on the death of the claimant. However, in the same judgment the learned Judge observed that his observations will hold good in case of death of a claimant either at the stage of the claim or in appeal but the same will not apply in the case of death of other persons. In Oriental Fire and General Insurance Co. Ltd. v Raja Ram Gupta, 1974 Acc CJ 143 (Punj), Rajendra Nath Mittal J., observed that:

'The general principles of abatement shall, however, be applicable where the appeal cannot proceed without the deceased party. In the case of death of a claimant, the matter is different. Theobservations of the Courts in cases of death of a claimant either before the Tribunal or during the course of appeal will not be applicable to the cases where non-claimants who are necessary parties had died.'

The learned Judge further observed that the principle of abatement lays down equitable considerations and they are that cases should not be decided in the absence of necessary parties. After quoting Bhagwan Singh v. Additional Director of Consolidation Punjab, Ferozepur, AIR 1968 Punj 360, and Dula Singh v. Union of India, 1971-73 Pun LR 432, the learned Judge came to the conclusion that:

'In the absence of the parties it will not be possible to decide the cases. Therefore, in the circumstances stated above, it cannot be said that law of abatement will not apply in appeals on the death of a necessary party.

7. For the reasons recorded above, in my view, on the death of Manohar Singh Sethi, respondent, the appeals cannot proceed and stand abated.'

20. In the case in hand, the claim was brought against the firm through its karta and no substitution was got made within the time limited by law either of the succeeding karta or of all the surviving members of the family. The lapped wilt, therefore, abate as a whole.

21. Now it is to be seen as to what is the effect of Section 6 of the Limitation Act, 1963. It is not disputed that three of the claimants are still minors. The learned counsel for the appellants relied on Chawli Devi v. Union of India, 1973 Acc CJ 519 (Punj), wherein S. C. Mittal, J. observed that an application framed under the Motor Vehicles Act bears all the attributes of a plaint in a suit and, therefore, the benefit of Section 6(1) of the Limitation Act cannot be denied to the minor applicants.

22. In reply, learned counsel for respondents Nos. 1 and 2 urged that Section 6 of the Limitation Act, 1963, only applies to a suit and an application for the execution of a decree and not to an application for bringing in the legal representatives of a deceased party. He relied upon Full Bench decision in Managing Committee Sunder Singh Malha Singh Rajput High School. Indaura v. Sunder Singh Malha Singh Sanatan Dharam Rajput High School Trust, Indaura, AIR 1944 Lah 190 (FB), in which it was held that restoration is something apart from execution. It was further observed that 'Art. 181 is not the only Article which deals with applications not covered by Section 6, but there are about two dozen other applications dealt with under Articles 158 to 180 which are not similarly covered by that section,' and the reference was answered in the negative to the question whether an application under Section 144, Civil Procedure Code, is an application for execution within the meaning of Article 182 of the Limitation Act. It may also be mentioned here that the case of Managing Committee Sunder Singh Malha Singh Rajput High School, Indaura v. Sunder Singh Malha Singh Sanatan Dharam Rajput High School Trust, Indaura (supra) refers to the articles of Limitation Act of 1908 in which Articles 176 and 177 covered the limitation as provided by Article 120 of the Limitation Act, 1963. Relying upon the case of Managing Committee Sunder Singb Malha Singh Rajput High School, Indaura v. Sunder Singh Malha Singh Sana-tan Dhararn Rajput High School Trust, Indaura (supra), I hold that in an application for bringing the legal representatives of a deceased party on record, Section 6 of the Limitation Act, 1963, is not applicable.

23. After considering all the facts of the case, I hold that the legal representatives of R.B. Kishore Chand, who was sued as a karta of R.B. Kishore Chand and Sons were not brought on record within limitation and as such this appeal abates as a whole and is hereby dismissed. The parties are, however, left to bear their own costs.


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