CR No.6699 of 2008 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6699 of 2008 Date of Decision: 12.07.2010 Tejinder Kumar ..Petitioner Vs. Mulkh Raj & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.B.R.Mahajan, Advocate, for the petitioner. Mr.Pradeep Goel, Advocate, for respondent No.8. --- Vinod K.Sharma,J. (Oral) This judgment will dispose of CR No.6698 to 6703 of 2008 titled Tejinder Kumar Vs. Smt.Raj Rani & Ors., Tejinder Kumar Vs. Mulkh Raj & Ors., Tejinder Kumar Vs. Mohinder Singh & Ors., Tejinder Kumar Vs. Neelam Rani & Ors., Tejinder Kumar Vs. Anu & Ors., Tejinder Kumar Vs. Gaurav Jasam & Ors., respectively, as common questions of law and facts are involved in all these civil revisions. For the sake of brevity, the facts are being taken from CR No.6699 of 2008. CR No.6699 of 2008 2 The petitioner has invoked the supervisory jurisdiction of this court under Article 227 of the Constitution of India to challenge the order dated 26.4.2008 passed by the learned Motor Accident Claims Tribunal Jalandhar (for short the Tribunal) vide which application moved by the petitioner under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure for setting aside the ex parte award dated 23.2.2004 has been ordered to be dismissed. The claimants filed a claim petition under section 166 of the Motor Vehicles Act claiming compensation on account of motor vehicular accident by pleading petitioner to be the owner of offending vehicle. The petitioner in the claim petition was sued as Tejinder son of Darshan Kumar resident of House No.2009, Gali Bank Wali, Islamabad, Amritsar. On service, the petitioner appeared through his counsel Shri Manish Dua and contested the claim by moving an application, that he was not the son of Darshan Kumar as mentioned in the memo of parties, therefore, has been wrongly arrayed as party to the petition. Respondent No.5 filed written statement contesting the claim, who was represented by Mr.Sohit Talwar, Advocate. Mr.Manish Dua, Advocate appeared on behalf of Tejinder Kumar son of Vaishno Dass and made a statement that he was also appearing on behalf of Tejinder Kumar son of Darshan Kumar in the claim petition. This statement was made by the counsel on 8.11.2001. The application moved by the petitioner that he was not CR No.6699 of 2008 3 Tejinder Kumar son of Darshan Kumar was accepted vide order dated 24.10.2001, which reads as under: “ Counsel for the claimant has produced a copy of registration book of Bus No.PB-02-C-9933 showing that this bus is presently registered in the name of Tejinder Kumar son of Darshan Kumar, r/o 2009 Islamabad, Amritsar. Counsel of the respondent No.2 says that service of Tejinder Kumar son of Vaishnu Dass at this address has been effected whereas this Tejinder Kumar son of Vaishnu Dass has no concerned with the Bus. Counsel for respondent No.1 says that respondent No.1 had also no connection with the Bus in question. National Insurance Co. respondent No.3 had issued a policy in the name of Tejinder Kumar son of Darshan Kumar, 4-Goel Bagh, Amritsar. Counsel for the petitioner says that since the Bus is registered in the name of Tejinder Kumar s/o Darshan Kumar r/o 2009, Islamabad, Amritsar, therefore, this person had been sued as respondent No.2, if some Tejinder Kumar s/o Vaishnu Dass who is also residing at this very address was served and has come present, then neither petitioner is at fault nor any body else is at fault. It is now for this respondentNo.2 to continue appearance or not otherwise, this respondent No.2 shall be proceeded against ex parte. Let written statement be filed on 8.11.2001.” In spite of order dated 24.10.2001, the learned Tribunal did not CR No.6699 of 2008 4 issue notice to Tejinder Kumar son of Vaishnu Dass and continued with the proceedings and Shri Manish Dua, Advocate did not contest the petition in view of the order dated 24.10.2001. Though the Insurance Company did not have any right or jurisdiction to move an application for correction of parentage of Tejinder Kumar, and it was for the claimants to move any such application if they so desired in view of the order dated 24.10.2001 but the Insurance Company took it to itself and moved an application at the stage of arguments of the case, to correct the name of respondent as Tejinder Kumar son of Darshan Kumar alias Vaishnu Dass so as to fasten the liability on the petitioner. The application moved by the Insurance Company was allowed on 22.1.2004 by passing the following order: “ Statements of the parties have been recorded. Claim petition titled as Mohinder Singh Vs. Hardeep Singh etc. (MACT Case No.13/2003 was lying in the Fast Tract court. It arose out of the same accident to which the other claim petitions related. Learned counsel for the parties have made statements that this claim petition may also be decided along with other claim petition for which evidence has been recorded in the claim petition Mulakh Raj Vs. Hardeep Singh etc. (MACT Case No.12/2000) and that evidence may also be read as evidence in the claim petition titled as also be read as evidence in the claim petition titled as Mohidner Singh Vs. Hardeep Singh etc (MACT Case No.13/2003). I order CR No.6699 of 2008 5 accordingly. Learned counsel for respondent No.3 has filed an application for correction of the name of respondent No.2 Tejinder Kumar son of Darshan Kumar to be read as Tejinder Kumar son of Darshan Kumar alias Vaishno Dass learned counsel of the claimants have submitted at bar that they have no objection if this application is allowed. Therefore, necessary correction is ordered. Tejinder Kumar son of Darshan Kumar may also be read as Tejinder Kumar son of Darshan Kumar alias Vaishno Dass. Necessary correction be made in all the claim petitions. Learned counsel for the parties prays time to make submissions. Put up the file for arguments on 29.1.2004.” In view of the order dated 22.1.2004, while granting compensation to the claimants, right was given to the Insurance Company to recover the compensation paid from Tejinder Kumar son of Darshan Kumar alias Vaishno Dass i.e. the petitioner. The petitioner on coming to know of the award immediately moved an application under Order 9 Rule13 of the Code for setting aside ex parte award against him on the ground, that after the passing of the order on 24.10.2001, no notice was issued to the petitioner describing him as Tejinder Kumar son of Vaishno Dass, which resulted in grave injustice to the petitioner as he was not able to contest the claim petition and prove CR No.6699 of 2008 6 that no liability of recovery could be fastened on him. The fact that no notice was issued to the petitioner after 24.10.2001 was not disputed, but learned Tribunal in view of the fact, that Shri Manish Dua, Advocate, at one stage had appeared and stated that he was representing Tejinder Kumar son of Darshan Kumar as also Tejinder Kumar son of Vaishno Dass, it was taken to be a valid service on the petitioner, and finding was recorded that attempt was made by the petitioner to play fraud, with the court and the application filed dismissed as being barred by limitation having been filed on 26.3.2005. The case of the petitioner is, that the impugned order cannot be sustained as the application moved by the petitioner under Order 9 Rule 13 of the Code could not be said to be barred by limitation, as notice for recovery was received by the petitioner only on 19.3.2005 and the application was immediately moved thereafter on 25.3.2005 i.e. within 7 days of the date of knowledge. It is well settled law that limitation of 30 days is to be counted from the date of passing of order or from the date of knowledge. In view of the order dated 24.10.2001 which was passed in favour of the petitioner it can not be said that the petitioner, was in the know of the proceedings pending in the court, as the statement made by counsel was dated 8.11.2001, the order in favour of the petitioner was passed before that date, but no action was taken by the claimants to get memo of parties corrected, and sending notice to the petitioner, thereafter. It seems that the learned Tribunal was swayed by the conduct CR No.6699 of 2008 7 of the petitioner in not appearing and by assuming that the petitioner is the same person on whom service was effected. This presumption is not permissible in law, in view of the order dated 24.10.2001. It was necessary for the learned Tribunal to issue notice to the petitioner by describing him as Tejinder Kumar son of Darshan Kumar alias Vaishno Dass and permit the petitioner to contest the claim petition. However, as the application under Order 9 Rule 13 of the Code has not been decided on merit, but was held to be time barred, this court does wish to give any opinion on merit on the case, and feel that interest of justice would be served if the order impugned is set aside, and the case is remanded back to the learned Tribunal to decide on merit the application moved by the petitioner under Order 9 Rule 13 of the Code, by treating it to be within time. It would be open to the learned Tribunal to give liberty to the parties to prove their respective case i.e. the petitioner to prove that he is not Tejinder Kumar son of Darshan Kumar alias Vaishno Dass and for the Insurance Company to prove that Tejinder Kumar son of Darshan Kumar alias Vaishno Dass is the one and the same person, therefore, not allowed now to challenge the award, as he had appeared in court at one stage and thereafter absented himself knowing fully well that the claim petition was pending against him. Consequently, all these revision petitions are allowed. Impugned order is set aside and the case is remanded back to the learned CR No.6699 of 2008 8 Tribunal, Jalandhar to dispose of the application moved by the petitioner under Order 9 Rule 13 of the Code on merit, by treating it to be within time. The parties through their counsel are directed to appear before the learned Motor Accident Claims Tribunal, Jalandhar on 30.8.2010. Record of the learned Tribunal be remitted back immediately. No costs. 12.07.2010 (Vinod K.Sharma) rp Judge