(Prayer: Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toby the order and decree dated 26.11.2018 passed in M.V.O.P.No.42 of 2016 by the learned Chairman, Motor Accidents Claims Tribunal-cum-XII Additional District and Sessions Judge, at Vijayawada

IA NO: 1 OF 2019

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To condone the delay of 126 days in representing the abvoe MACMA against MVOP. no. 42/2016 on the file of the MACT - cum - XII Addl. District and Sessions Judge, Vijayawada otherwise the petitioner will suffer irreparable loss and hardship and pass.

IA NO: 2 OF 2019

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To suspend the order and decree dated 26.11.2018 passed in MVOP. No. 42/2016 by the learned Chairman on the file of the Chairperson Motor Accidents claims Tribunal - cum - XII Addl. District and Sessions Judge, Vijayawada.)

1. The present appeal is filed aggrieved by order dated 26.11.2018, passed in MVOP No.42 of 2016, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-XII Additional District and Sessions Judge, Vijayawada.

2. For the sake of convenience, the parties are referred to as they were referred before the Tribunal.

3. The petitioner filed a claim petition under Section 166 of the Motor Vehicles Act, seeking to pay compensation of Rs.10,25,000/-, on account of the death of her husband, Sri Thota Ramalingeswara Rao, in the accident that was occurred on 24.08.2015, in which the offending lorry bearing registration No.AP16W1450, belonging to the respondent Nos.2 to 4, was involved.

4. It is the case of the petitioner that, the accident was occurred due to the rash and negligent driving of the offending lorry by the 1st respondent, as he took a sudden right turn and dashed the deceased. As a result of which, the deceased fell down and sustained bleeding injuries all over the body. He was shifted to Headquarters Hospital at Eluru and subsequently taken to Suraksha Hospital, Vijayawada, for better treatment, where he succumbed two injuries. A case in Cr.No.841 of 2005, was registered under Section 304-A IPC, later, the said crime was investigated into and charge sheet was filed against the 1st respondent, lorry driver. It is the further case of the petitioner that, the deceased was driver-cum-owner of the lorry, and was earning Rs.25,000/- per month. As the sole bread winner of the family was died, the above claim petition came to be filed.

5. The respondents have filed counter affidavit stating that, there was no negligence on the part of the driver of the offending lorry and the accident was occurred due to the negligence of the deceased and therefore, liability cannot be fastened on them. It was further contended that the deceased hit the lorry at the stepney placed at the tail end of the lorry and fell down and thereby sustained injuries. The income of the deceased was denied. It was further contended that the claim petition is liable to be dismissed, as the Union of India was not made as a party. With the above pleadings the respondents prayed to dismiss the claim petition.

6. In order to prove the case of the petitioner, she was examined as PW.1 apart from examining PWs.2 & 3 and marked Exs.A1 to A9. On the other hand, the respondents have examined RW.1 and did not produce any documentary evidence.

7. Considering the oral and documentary evidence, the Tribunal by impugned order awarded compensation of Rs.9,34,000/-, together with interest at the rate of 7.5% per annum from the filing of the petition till the date of realization, by holding all the respondents jointly and severally liable to pay the compensation.

8. Heard counsel for the petitioner and counsel for 1st respondent. Despite service of notice, there is no appearance for 2nd respondent.

9. Perused the record.

10. Though, several grounds are raised in the present appeal, during the course of hearing, the counsel for the appellant confined his argument that the claim petition filed by the claimant is not maintainable inasmuch as the Union of India is not made as a party respondent. He would further submit that, as per Section 79 of CPC, whenever a suit is filed against the Central Government, the authority to be named as “the Union of India”. As the Union of India is not made as party respondent, he would submit that the claim petition is liable to be dismissed.

11. On the other hand, the counsel for claimant would submit that the claim petition was filed against South Central Railways represented by its General Manager and the factum of filing of the claim petition is within the knowledge of the respondents including the Union of India and therefore, the said contention of the counsel for the appellant has no legs to stand.

12. On overall consideration of the case on hand, it is pertinent to note that the claim petition is filed under a special enactment claiming compensation on account of the death of the deceased in an event which is not foreseen. Apart from the same, the claim petition is filed under beneficial legislation. Further, the counsel for the appellant did not dispute the entitlement of compensation by the petitioner, but opposed the claim petition on the ground of maintainability, as the Union of India was not made a party respondent. In this connection, it is a relevant to point out that as per Section 80 CPC, if any suit is filed against the Government, a prior notice has to be issued. In this context, a perusal of Section 80(1)(b), it is clear that, if a suit has to be filed against the Central Government, where it relates to railway, the notice shall be given to the General Manager of that railway. In the case on hand, it is not in dispute that the General Manager of South Central Railways was made as a party respondent to the claim petition. In such an event, it would not be open to the appellant to take such a plea. Further, as observed above, the claim petition is filed under beneficial legislation claiming compensation for the acts committed by the tortfeasor, who admittedly belongs to the appellant railway department.

13. Furthermore, as long as the entitlement to claim compensation is not denied, it may not be probable to the appellant to raise such a plea with regard to the maintainability of the claim petition, especially when it is filed under beneficial legislation. Be that as it may, this Court and Hon’ble Apex Court time and again, had held that, whenever substantial justice and technicalities are pitted against each other, it is the substantial justice that would prevail. Therefore, by taking into consideration of the above peculiar facts involved in the case on hand, it would have to be held that merely because the Union of India is not made as a party respondent to the claim petition, the same does not disentitle the claimant to seek compensation. In that view of the matter, the objection raised by the counsel for the appellant is not fatal to the case on hand.

14. For the foregoing reasons, this Court is not inclined to interfere with the order under challenge and accordingly the appeal is dismissed. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.