F.A.O. No.4360 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** F.A.O. No.4360 of 2007 Date of Decision:07.11.2008 Ashok Kumar .....Appellant Vs. Jasbir Kaur and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. H.K. Arora, Advocate for the appellant. Mr. M.S. Lobana, Advocate for respondent No.5. Mr. Vivek Singal, Advocate for respondent No.6. **** JUDGMENT HARBANS LAL, J. (Oral) This appeal is directed against the award dated 22.3.2006 passed by the Motor Accident Claims Tribunal, Jalandhar vide which an amount of Rs.4,05,000/- has been awarded to the claimants as compensation with the observation that “the liability of respondents No.1 to 3 to pay the amount shall be joint and several. However, it will be open to the insurer to recover the said amount either from the insured, i.e., Ashok Kumar or from the transferee of the vehicle, i.e., Hari Singh, respondent No.2.” The brief facts giving rise to the claim petition are that on 15.10.2004, Guridal Singh since deceased was approaching from Village Ramidi on his scooter bearing registration No.PB-07-L-6397 followed by scooter bearing registration No.PB-09-B-9167 being driven by Sarabjit Singh son of Bakhshish Singh. Around 5:00 P.M., when they neared Gadhana, Railway Crossing, meanwhile a Maruti Car bearing registration No. PB-10-AJ-9858 being driven by Gulzar Singh- respondent rashly and F.A.O. No.4360 of 2007 -2- negligently came from the opposite direction on a wrong side without blowing any horn and without applying brakes and hit against the scooter of Gurdial Singh. As a result of its impact, Gurdial Singh sustained multiple injuries on his body. He was removed to Beas Hospital by Sarabjit Singh. He was given first aid and referred to Nayyar Heart Institute & Super Speciality Hospital, Amritsar where he was admitted on 15.10.2004 and discharged on 5.11.2004, whereafter he was again admitted in the Sacred Heart Hospital, Maqsudan on the same day where he remained under treatment till his death, i.e., 7.1.2005. An FIR bearing No.56 dated 4.11.2004 was got registered under Sections 279/337/338/427 IPC with Police Station Dhilwan, District Kapurthala. After his death, the offence under Section 304-A IPC was also added. The deceased aged about 42 years was doing agriculture work apart from dairy farming. His monthly income was Rs.15,000/-. He is survived by his wife, daughter and son. On these allegations, this petition was filed for grant of compensation to the tune of Rs.25 lacs. In their written statement, Gulzar Singh driver and Hari Singh owner of the offending vehicle denied the accident. As alleged, the offending car stood insured and that being so, the insurer is liable to pay the compensation, if any, to be awarded by the Tribunal. Lastly, it has been prayed that the petition may be dismissed. The National Insurance Company- respondent in the written statement alleged that Gulzar Singh was not holding any valid and effective licence at the time of accident and as such, there is breach of conditions of the insurance policy. Traversing other facts, prayed for dismissal of the petition. The following issues were framed:- 1. Whether the death of Gurdial Singh took place in a F.A.O. No.4360 of 2007 -3- motor vehicle accident due to rash and negligent driving of Maruti Car bearing No.PB-10-AJ-9858 being driven by respondent No.1? OPP 2. Whether the applicants are entitled to compensation, if so to what extent and from which of the respondents? OPP 3. Whether the respondent No.1 was not holding valid and proper driving licence at the time of accident? OPR-3 4. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned Tribunal awarded the amount of compensation as noticed earlier. Mr. H.K. Arora, Advocate appearing on behalf of the appellant- Ashok Kumar strenuously urged that the appellant had sold the offending vehicle to Narinder Kumar on 19.10.2002 and the delivery was also given to him on the same day. Subsequently, the documents for the sale of vehicle were executed on 16.12.2002 between appellant and respondent No.5 – Hari Singh. The documents of transfer of vehicle in the shape of affidavits were also delivered to Hari Singh on 24.12.2002 and since 19.10.2002, the aforesaid respondent was in possession of the vehicle bearing registration No.PB-10-AJ-9858 and since 24.12.2002, the appellant was not the owner of the vehicle. The impugned award passed by the learned Tribunal giving recovery rights to the Insurance Company- respondent No.6 is against the principles of natural justice as the appellant was never made a party and no opportunity was ever afforded to him to defend the present case. In spite of the fact that the said fact was to the knowledge of the respondent- Insurance F.A.O. No.4360 of 2007 -4- Company, it did not choose to implead the appellant deliberately nor the claimants ever did so. The appellant is not liable to pay any amount as the impugned award has been passed at his back. To add further to it, he was neither the owner of the offending vehicle nor was in possession of the same since 2002. The vehicle was insured at the time of the accident. That being so, only the respondent- Insurance Company is liable to pay the compensation amount. The appellant learnt about the award only after receiving the summons from the Motor Accident Claims Tribunal, Jalandhar in the month of September, 2006 which have been issued on the application of the respondent- Insurance Company for the recovery of the stated amount. Mr. M.S. Lubana representing Hari Singh- respondent urged with great eloquence that Ashok Kumar- appellant being the registered owner of the offending vehicle at the material time has been rightly saddled with the liability to pay the amount of compensation. I have well considered the rival contentions. A glance through the array of parties detailed out at the first page of the impugned award would reveal that Ashok Kumar was not made a respondent in the claim petition. Learned Tribunal while holding discussion on Issue No.4 (Relief) held that “the liability of the respondents No.1 to 3 (referring to Gulzar singh, Hari Singh and the National Insurance Company respectively) to pay the amount of compensation shall be joint and several. However, it will be open to the insurer to recover the said amount either from the insured, i.e., Ashok Kumar, or from the transferee of the vehicle, i.e., Hari Singh- respondent No.2.” An identical observation has been made towards the end of Paragraph No.20 of the award. As emanates from Paragraph No.19 F.A.O. No.4360 of 2007 -5- of the impugned award, the learned counsel for the respondent- Insurance Company had contended that the Insurance Company is not liable to pay any compensation as the offending vehicle was got insured by one Ashok Kumar as per the policy Ex.R.1. The said Ashok Kumar has transferred the vehicle to Hari Singh- respondent No.2 prior to the date of accident and at the time of accident, the offending vehicle was owned by Hari Singh not by Ashok Kumar with whom respondent No.3 entered into contract, and therefore, the liability of the Insurance Company ceased and now the amount of compensation can only be recovered from Ashok Kumar who transferred the offending vehicle to Hari Singh or from Hari Singh, transferee of the offending vehicle or Gulzar Singh, driver of the offending vehicle. To me, it appears that it is only on the basis of these arguments, that Ashok Kumar who was not party to the proceedings has initially been burdened with the liability to pay the amount of compensation. The doctrine of `Audi Alteram partem' contemplates that no one should be condemned unheard. Here in this case, respondent- Insurance Company has been given the right to recover the amount of compensation from Ashok Kumar, who as noted supra, has neither been arrayed as a respondent in the claim petition nor has been afforded any opportunity of being heard. It is quite startling and flabbergasting as to how and under what circumstances and on the basis of what evidence, he has been fastened with such a liability. It is quite astonishing that the learned Tribunal did not ponder over this fact even for a little while that the man who is going to be burdened with the liability is alien to these proceedings and he was never given any opportunity of hearing. The cardinal canons of natural justice contemplate that no one should be condemned at one's back. Thus, from F.A.O. No.4360 of 2007 -6- whatever angle, the matter may be viewed, this appeal is liable to be accepted. In view of the preceding discussion, this appeal succeeds and is accepted setting aside the impugned award. The matter is remanded back to the Motor Accident Claims Tribunal, Jalandhar for deciding the matter afresh after affording due opportunity to Ashok Kumar to file his written statement and to lead his evidence, if so, desired by him. To bring Ashok Kumar s/o Surinder Kumar r/o House No.213/1, Street No.2, Nirankari Street, Miller Ganj, Ludhaina on record, the National Insurance Company, G.T. Road, Dhandari Kalan, Ludhiana- respondent shall move an application. Counsel for the respondents Hari Singh as well as National Insurance Company through their respective counsels are directed to put in their appearance before the learned Tribunal on 23.12.2008. The Registry is directed to transmit a copy of this judgment to the Motor Accident Claims Tribunal, Jalandhar. November 07, 2008 ( HARBANS LAL ) renu JUDGE