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The Finance And Investment Corporation v. P.O., M.A.C.Tribunal Jhansi(U.P.) & Others - WRIT - C No. 4586 of 2002  RD-AH 6102 (20 March 2006)
COURT NO. 26
CIVIL MISC. WRIT PETITION NO. 4586 OF 2002
The Finance and Investment Corporation
Presiding Officer, Motor Accident Claims Tribunal Jhansi (U.P.) and others.
HON. SHISHIR KUMAR, J.
This writ petition has been filed for quashing the orders dated 12.10.2001, Annexure-10 to the writ petition passed by respondent no.1.
The facts arising out of the present writ petition are that the petitioner alleges himself a financier. It appears that one Tempo was financed to the respondent no.6 Sunil Kumar Sahu under an agreement of lease-dated 13.2.1992. An accident has taken place on 13.4.1994 in which one Sri Prem Mohan Agrawal sustained various injuries and subsequently died. The legal heirs of the deceased filed a claim petition under Sections 140 and 166 of the Motor Vehicles Act against the petitioner and respondents no.5 and 6 claiming compensation to the tune of Rs.18 lacs. The petitioner submits that no notice was served upon the petitioner and the total proceeding is exparte. The Claims Tribunal vide its order dated 30.1.1996 has allowed the claim petition and a compensation to the tune of Rs.3,72,300/- has been awarded to the heirs of the deceased with 10% interest. Further direction was that the aforesaid amount is to be paid within a period of three months and if the amount is not paid, 18% interest will be payable. When the recovery proceeding was initiated, then the petitioner came to know regarding the order allowing the claim petition. Then immediately an application was filed under Order IX Rule 13 C.P.C. for setting aside the exparte order. In the said application it has clearly been stated that the petitioner is only a financier and there cannot be any liability upon the petitioner in case of some accident. But the trial court without considering and deciding the aforesaid issue, has rejected the said application vide its order dated 12.10.2001. Aggrieved by the aforesaid order, the petitioner has approached this Court.
The writ petition was entertained and this Court vide its order dated 1.2.2002 was pleased to direct the respondents to file a counter affidavit and a direction to this effect was issued that the petitioner will deposit half of the amount awarded within one month. The petitioner submits that the said amount has already been deposited.
It has been argued on behalf of the petitioner that the claim petition against the petitioner itself was not maintainable in view of the agreement executed between the parties. The petitioner has annexed Annexure-2 which is the agreement, clearly states that in case of accident and in case of death, lessee shall be responsible and liable to pay all kinds of compensation to the heirs of the deceased. There shall be no responsibility of the petitioner. This question was to be decided by the Claims Tribunal but without recording the aforesaid finding regarding the liability, the Claims Tribunal has no jurisdiction to fix the liability upon the petitioner. It has further been submitted on behalf of the petitioner that as the petitioner has not been afforded any opportunity to bring on the relevant records and the agreement between the parties, as no notice was served upon the petitioner, therefore, the Claims Tribunal has directed that the total compensation be paid to the claimant by the petitioner. An objection to this effect has also been taken by the petitioner that in the claim petition the Insurance Company has not been impleaded as a party, as such the claim petition itself was not maintainable. It has further been submitted on behalf of the petitioner that the Claims Tribunal while considering the application under Order 9 Rule 13 C.P.C. for setting aside the exparte decree has to record a finding whether service upon the petitioner was sufficient or not. But if such finding has not been recorded while rejecting the application of the petitioner under Order 9 Rule 13 C.P.C. itself is a ground for setting aside the said order. In such a situation the petitioner submits that the order rejecting the application against the exparte decree is liable to be set aside.
On the other hand, counsel for the respondent submits that as the petitioner was the owner of the vehicle, as such the Claims Tribunal has rightly directed to pay the compensation to the claimants.
I have heard the learned counsel for the petitioner and the respondents and have perused the record. From the record it is clear that an agreement on 13.2.1992 was entered into between the petitioner and Sri Sunil Kumar respondent no.5 who was the owner of the vehicle. Clause No. 8 of the said agreement clearly states that the total responsibility will be of respondent no.5. There is no finding to this effect recorded by the Claims Tribunal that the petitioner has not appeared in spite of that the service was sufficient. No finding to this effect has also been recorded by the Court regarding sufficiency of service upon the petitioner. The question for consideration before the Claims Tribunal was that whether the liability can be fixed upon the financier who has financed money for purchase of the vehicle. Unless and until a finding to this effect has been recorded by the Claims Tribunal that under what provision and under which law the financer of the vehicle can be put to a liability for payment of compensation in lieu of the accident by the Vehicle which has been financed by the petitioner unless and until a specific finding is recorded by the Claims Tribunal regarding the ownership that the finance company is the owner of the vehicle, then liability can be fixed upon the petitioner to pay the compensation.
In view of the aforesaid fact unless and until a specific finding is recorded, the Claims Tribunal cannot put a liability upon the petitioner. The aforesaid finding can only be arrived at by the Claims Tribunal if the petitioner is afforded an opportunity of being heard and can be proved on the basis of the relevant record.
In view of above, the writ petition is allowed and the order dated 12.10.2001, annexure-10 to the writ petition passed by respondent no.1 is hereby quashed and the matter is remitted back to the Claims Tribunal to decide the application filed on behalf of the petitioner under Order IX Rule 13 C.P.C. taking into consideration the observations made above as well as to record a finding regarding service upon the petitioner and whether a liability can be fixed upon the financier or not. The application filed by the petitioner, if possible, be decided within a period of three months.
It is also made clear that till the decision of the application under Order IX Rule 13 C.P.C. filed by the petitioner, the respondents are restrained from taking any coercive method for realizing the amount awarded against the petitioner.
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