In CM-1434-CII-2020- PUNJ HC – Service of summons to mother of person sought to be served is valid service in terms of Order 5 Rule 15 of CPC: Punjab & Haryana HC Justice H S Madaan [06-07-2022]

Read Order: Gurjashanjeet Singh and Others v. Amandeep Singh

Monika Rahar

Chandigarh, July 12, 2022: While dealing with a challenge to the ex-parte proceedings initiated against the respondent in a 2011 motor-accident case leading to the death of the claimants’ father, the High Court of Punjab and Haryana has held that the service of the process on the respondent effected upon his mother, who had accepted service by receiving copy of summons/notice along with copy of the petition, is to be taken as due service in terms of Order 5 Rule 15 CPC.

The Bench of Justice H S Madaan held,

“Order 5 Rule 15 CPC deals with such situation where service may be effected on an adult member of defendant’s family”, while also expounding, “Section 166 of the Motor Vehicles Act is a piece of welfare legislation meant to provide prompt compensation to the LRs of deceased victim/to injured victim, as the case may be.”

Essentially, the father of the claimants died in a motor vehicular accident in 2011 due to alleged rash and negligent driving of tractor trolley by the respondent. In order to claim compensation, the LRs of the deceased filed a petition under Section 166 of the Motor Vehicles Act, 1988. The same, however, was dismissed by the Motor Accident Claims Tribunal, Ambala.

Hence, aggrieved, the claimants filed an appeal before the High Court. 

As per the report on the notice sent for service on the respondent for December 1, 2015, the Process Server came across his sister-in-law who allegedly read the summons and appended report on the back of summons in her own hand to the effect that Amandeep Singh had gone to U.P. and was expected to return by January.

However, as per report on notice for March 21, 2015, the Process Server came across the mother of the respondent who accepted the service receiving a copy of summons along with a copy of petition. That report was attested by a witness.

On the basis of that report, since there was no representation in the Court on behalf of respondent, he was proceeded against ex-parte.

The appeal was accepted and the award passed by MACT, Ambala was set aside; the claim petition was accepted and compensation of Rs. 30,54,000/- along with interest @ 7.5% per annum was awarded to the claimants payable by the respondent.

The respondent, later moved an application for review and for recalling/reviewing the ex-parte judgement, on the ground that the report of the Process Server regarding service on his mother was not proper since there was no witness of the service and Process Server could not possibly know that she was his (respondent’s mother). Also, the respondent contended that he was deprived of submitting that he was not guilty of any rashness and negligence driving and was in fact acquitted by the criminal Court in the FIR relating to the accident in question.

The main question before the Court was whether the respondent was duly served in this case or not.

In this respect, the Court was of the opinion that personal service of the respondent could not be procured in this case despite sending notices by the Court several times.

Further, in view of Order 5 Rule 15 CPC which provides for effecting service on an adult member of defendant’s family, the Court was of the view that the Process Server could have got service effected upon the sister-in-law of respondent but he did not do so.

In this background, Justice Madaan opined,

“The Process Server having gone to the address of the respondent as given in the claim petition itself and coming across his sister-in-law first and then his mother, they are to be taken as members of  his family and service of the respondent effected upon his mother, who had accepted service so at her responsibility receiving copy of summons/notice along with copy of the petition is to be taken as due service in terms of Order 5 Rule 15 CPC and the Court accordingly took it to be so.”

Thus, the Court held that with respondent not putting in appearance either in person or through counsel, he was rightly proceeded against ex-parte.

Next, with respect to the filing of the application seeking setting aside of the ex-parte decree after a delay of 182 days, the Court held that no cogent or convincing reason could explain justifying the delay in approaching the Court.

“As such no ground is made out to condone the delay in moving the application. The application deserves to be rejected being hopelessly time barred, not only that but on merits also in view of the detailed discussion above“, the Court held.

Accordingly, the order vide which the respondent was proceeded against ex-parte was held to be legal and valid, as also the order passed by the High Court setting aside the award passed by MACT, Ambala and allowing the claim petition. Thus, the Court was of the view that no ground was made out to exercise any review jurisdiction in this case.

Significantly, considering the fact that the claimants were given compensation after 8 years, the Court opined that Section 166 of the Motor Vehicles Act is a piece of welfare legislation meant to provide prompt compensation to the LRs of deceased victim/to injured victim, as the case may be.

Thus, review was dismissed by Justice Madaan while holding that the respondent cannot be allowed to “take advantage of his wrong belatedly.”