Motor Accident Tribunal Can Pass Award U/S 166 Only After Proper Notice To Respondents And Affording Hearing: Jammu & Kashmir High Court

Setting aside an award of compensation passed by Motor Accidents Claims Tribunal, Shopian against a person without any notice to him, the Jammu and Kashmir and Ladakh High Court has recently ruled that a man cannot incur the loss of property or liberty for an offence by a judicial proceedings until he has a fair opportunity of answering the case against him.

Justice Wasim Sadiq Nargal observed,

"It is only after giving a notice of the application to the respondents and affording them an opportunity of  being heard and also after holding a proper enquiry into the matter, the Tribunal can pass an award, determining the amount of compensation which appears to be just, payable by the respondents. The law is settled at naught that when an award is passed at the back of a party and without affording him/her an opportunity of being heard, it is legally invalid."

The bench was hearing an appeal against the award of the tribunal passed by it while an application for interim relief under Section 144 of the Motor Vehicles Act 1988.

In the impugned award dated 27th April, 2019, the tribunal had awarded an amount of Rs. 3,00,000/- to be paid by the appellant and respondent no. 2 along with interest at the rate of 6% Per annum, from the date of filing of the claim petition till its full realization. The Tribunal had also directed that the appellant and respondent no. 2, will pay the amount within a period of thirty days from the date of serving of the award to them failing which, they had to pay the additional rate of 9% from the date of filing of the claim petition till its realization.

The appellants while assailing the award invited the attention of court towards a finding recorded by the Tribunal in which it has been observed that the “interim order recorded on the file dated 18th May, 2018 reveals that the respondent no. 1 (appellant herein) despite due service has not appeared and as such the Court has proceeded against the appellant in ex-parte.”

Vehemently disputing the finding recorded by the Tribunal the appellant argued that as per the record, he was never served and placed on record copy of the notice.

Referring to Order-5 Rules-15, 16, 17 and 18 of CPC to fortify his claim that he was never served and under what circumstance, the person can be deemed to have been served, the appellant vehemently argued that he was never served in terms of the procedures as envisaged in the CPC, and it cannot be assumed that the appellant has been served and as such the award has been passed in ex-parte without providing him an opportunity of being heard cannot sustain the test of law as the service was never affected on the appellant.

After elaborately considering the memorandum of appeal Justice Nargal observed that the finding of the Tribunal that a notice was although issued to the appellant but the appellant despite service did not appear because of which this was the appellant was proceeded ex-parte was without any basis as there is no whisper in the award with regard to factum of service of the notice on the appellant nor there is any mention of the date when the notice was served to the appellant.

Observing that the concept and doctrine of Principles of Natural Justice and its application in Justice delivery system is not new, the bench emphasised its importance as “an essential inbuilt component” of the mechanism, through which decision making process passes, in the matters touching the rights and liberty of the people.

“It is no doubt, a procedural requirement but it ensures a strong safeguard against any Judicial or administrative; order or action, adversely affecting the substantive rights of the individuals”, the bench underscored.

Elaborating further on the subject Justice Nargal explained that a man cannot incur the loss of property or liberty for an offence by a judicial proceedings until he has a fair opportunity of answering the case against him, the court said.

“In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing,” the court said, adding, “But what is important to be noted is that applicability of principles of natural justice is not dependent upon any statutory provision.”

The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not, the court added.

In view of the said legal position that continues to hold the field the bench said that there is no mention in the award with regard to recording of the statement of the Process Server by the Tribunal nor had the Process Server sworn an affidavit stating whether he had ever served the notice as required under law.

“The stand taken by the appellant that he had never received any notice from the Tribunal cannot be faulted. Thus, I hold that the award dated 27th April 2019 has been passed in ex-parte and without any service of notice to the appellant by providing him an opportunity of being heard. On this ground alone, the award is liable to be set aside.”

Accordingly the matter was remanded back to the Tribunal for rehearing and deciding the same in accordance with law with in a period of three months from the date of receipt of copy of this judgment after putting the parties to notice.

Case Title: Ghulam Nabi Turrey Vs Farooq Ahmad Thokar and Another

Citation: 2023 LiveLaw (JKL) 90

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