Procedural errors and lack of valid evidence vitiate tribunal awards in motor accident claims.

1. This appeal against the award of the then State Motor Accidents Claims Tribunal, arises in the following circumstances :

2. One Devi Dass, a resident of village Mand, tehsil Udhampur, was fatally run over by vehicle No. JKA / 481 on the Jammu Srinagar National Highway near village Tikkri on 13-7-1971. A petition of claim was presented on behalf of his father, mother and widow against the driver, owners and the insurance company in Dec., 1972, the tribunal awarded Rs. 50,000/- as compensation on 26-6-1982 holding the driver and the owners. jointly and severally liable while the insurance company was absolved of the liability. The appellants who were adjudged owners of the vehicle and made liable to pay the amount of the award have questioned the validity of the award inter alia, on the following grounds :
(1) That they were never served and the ex parte award made by the tribunal is nullity as it is vitiated by the illegalities committed by it from the very beginning of the proceedings to the end because they were never served. Besides the order of substituted service against appellant No. 1 is illegal as it was issued without compliance of O. V., R.20, CPC; (2) that they are not the owners of vehicle No. JKA / 481 and the evidence relied by the tribunal to hold so is wholly inadmissible and cannot be read against them; and (3) that the tribunal has failed to take notice of the fact that the claim petition was presented one year after the accident which could not be entertained without extending the time by condoning the delay.

3. It is unfortunate and painful as well that it took more than a decade for the tribunal to award compensation and that too by short circuiting the law and the procedure for reasons which are not far to seek consequence whereof this appeal has to succeed by bringing the whole proceedings to square one after more than 16 tortuous years during which the claimants had waited to obtain relief as would be evident from what follows.

4. Service of respondents 2 and 3 is a matter of such a serious controversy that ultimately this alone will determine the outcome of this appeal. Respondent 1, it is recorded appeared on 15-7-1984 and was set ex parte, on 19-8-1974 when he failed to appear, Respondents 2 and 3 were both summoned for 15-9-1976. Shri Ghulam Rasool, process server of the District Court, Jammu, reported that Khushal Singh could not be served for want of his parentage and proper address. Following this the tribunal directed the claimants to provide their particulars and process fee. The order of the tribunal dt. 30-3-1977, reads :
"The notices have been returned unserved Issue fresh notice on payment of process fee and fresh particulars. Put up on 27-4-1977."
But the record shows that the notice that was returned was of Sujan Singh and not of Khushal Singh. However, on 30-3-1977 itself the claimants applied for substituted service of respondent No. 3 and the same was allowed. The application, however, does not mention as to who was the respondent to be served. The office issued notice by publication for the appearance of Sujan Singh only (and not of Khushal Singh) which was published in "Qaumi Awaz" of 5-5-1977.

5. Two questions arise for consideration : (1) Was respondent 2 served ? and (2) Was the tribunal justified in ordering substituted service on respondent 3 ?

6. The only record about the service of respondent 2 is the interlocutory order dt. 25-1-1979 which reads :
"It appears from the record that non - applicants 1 and 2 have already been placed ex parte."
This, is factually incorrect and erroneous. Only respondent 1 was set ex parte on 19-8-1974 as not