FAO No. 1066 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1066 of 2006 (O&M) Date of decision: 12.01.2010 Beant Kaur @ Baljit Kaur and others ....Appellants Versus Amrik Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Subhash Chander Patial, Advocate, for the appellants. Mr. N.S. Virk, Addl. A.G., Punjab, for respondents No.1 and 2. Mr. R.S. Aulakh, Advocate, for respondents No.3 and 4. ***** VINOD K. SHARMA, J (ORAL) The appellant-claimants in this appeal have challenged the award dated 21.7.2005 passed by the learned Motor Accident Claims Tribunal, Chandigarh, vide which the claim petition filed under Section 166 of the Motor Vehicles Act, 1988, for grant of compensation on account of death of the father of the minor appellants, stands dismissed, except for payment under “no fault liability”. The claimants filed the claim petition on the pleadings, that Paramjit Singh was driving a milk canter No. PB-05-G-9444 at a slow speed and was going towards Ganganagar. When he reached near village Giddranwali, bus No. PB-12-B-9804 driven by respondent No.1 in a rash and negligent manner struck against the canter as a result of FAO No. 1066 of 2006 (O&M) -2- which the deceased fell on the road and his legs broke into two pieces. He succumbed to his injuries in the hospital after 22 days. The case was, that accident had occurred due to rash and negligent driving of respondent No.1. The petition was contested, wherein a plea was taken, that the accident, in fact, had occurred due to rash and negligent driving of late Sh. Paramjit Singh and that the FIR was also registered against him. Other assertions were also denied. On the pleadings of the parties, the learned Tribunal framed the following issues: - “1. Whether the claimants are the legal heirs of deceased? OPP 2. Whether the deceased died in a motor vehicular accident which took place due to the rash and negligent driving of respondent No.1 while he was driving bus No. PB-12-B-9804? OPP 3. If issues No.1 and 2 are proved to what amount of compensation the claimants are entitled to and from whom of the respondents? OPP” After appearing in the case, claimant No.1 i.e. widow of late Sh. Paramjit Singh, and their counsel chose not to lead any evidence in support of the claim petition, resultantly for want of any evidence, the learned Tribunal decided the issues against the claimants and dismissed the claim petition except for grant of “no fault liability” claim. The impugned award has been challenged on the plea, that once it was proved, that claimant No.1 was not taking interest in the case by not producing the evidence, it was the duty of the Court to have appointed a Court Guardian to watch the interests of the minors. The FAO No. 1066 of 2006 (O&M) -3- case, therefore, could not be decided to the prejudice of the minors without appointment of the Court Guardian. In support of this contention, the learned counsel for the appellants placed reliance on Order 32 Rule 3 & 3-A of the Code of Civil Procedure, which read as under: - “Suits by or against minors and persons of unsound mind 1. x x x x x 2. x x x x x 3. Guardian for the suit to be appointed by Court for minor defendant-(1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor, or, where there is no father, mother or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. FAO No. 1066 of 2006 (O&M) -4- (4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also. (5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree. 3-A. Decree against minor to be set aside unless prejudice has been caused to his interests. - (1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reasons of such adverse interest of the next friend of guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree. (2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.” The contention of the learned counsel for the appellants, therefore, was that the impugned award cannot be sustained, as the learned Tribunal failed in its duty to protect the interests of the minors, therefore, the minors can challenge the order passed to their prejudice. There is force in the contention of the learned counsel for the appellants. Under the facts and circumstances, it was the duty of the Court to have appointed Court Guardian to watch the interests of the FAO No. 1066 of 2006 (O&M) -5- minors, and the issues framed could not be answered against minors to their prejudice for want of evidence by the natural guardian, who took no interest to protect their interest. The learned Tribunal, therefore, was under statutory duty to protect the interest of minors by appointing Court Guardian. Consequently, this appeal is allowed, the impugned award is set aside and the case is remanded back to the learned Motor Accident Claims Tribunal to proceed, with the matter in accordance with law. Parties through their counsel are directed to appear before the learned Motor Accident Claims Tribunal on 15.2.2010. (Vinod K. Sharma) Judge January 12, 2010 R.S.