Branch Manager The Oriental Co. Ltd. vs Milanteen Bai

The petitioner has filed this writ petition under Article 227 of the Constitution of India against the order dated 28.11.2018 passed by the Additional Claims Tribunal to the Court of First Additional Motor Accident Claims Tribunal, Dongargarh in MJC No.20/2018, whereby the application preferred by the petitioner under Order 9 Rule 13 of the CPC read with Section 5 of the Limitation Act to set aside ex-parte award dated 28.4.2017 passed by the Additional Claims Tribunal to the Court of First Additional Motor Accident Claims Tribunal, Dongargarh in Claim Case No.23/2014 has been dismissed.

Brief facts of the case are that respondents No.1 to 3 / claimants have filed a claim petition against the petitioner and respondents No.4 to 6 for compensation on account of death of late Mahesh @ Manish. The said claim petition was registered on 11.07.2014. Thereafter, notices were issued to the non-applicants and registered notice was also issued to the petitioner herein, which is received unserved, therefore, the claimants have moved an application under Order 5 Rule 20 of the CPC for paper publication and the same has been allowed and thereafter the impugned ex-parte award dated 28.04.2017 has been passed in favour of the claimants / respondents No.1 to 3 herein. Thereafter the claimants have filed an execution proceedings and after getting summons of the said execution case on 21.11.2017, the petitioner obtained certified copy of the award and thereafter an application under Order 9 Rule 13 of the CPC along with application under Section 5 of the Limitation Act was preferred on 1.1.2018, which has been dismissed by the impugned order.

Mr.P.K.Tulsyan, learned counsel for the petitioner would submit that the impugned order is erroneous as registered notice was returned unserved and in the endorsement it has been mentioned that the recipient without giving any information left the place as the petitioner / non-applicant No.4 is an institution. So, such endorsement is apparently not proper and on such endorsement, no further action to be acted upon judicially. He would further submit that immediately after notice of execution in a prompt manner the application has been filed to set aside ex-parte award along with an application for condonation of delay of some days and the learned Claims Tribunal in a very hyper technical manner dismissed the application, which is not just and proper. He would also submit that as paper publication under Order 5 Rule 20 of the CPC was published in the area of Durg district and office of the petitioner was situated at Balod, which is separate district. As such, learned counsel prays to allow the petition and to set aside ex-parte award.

Notices were served to respondents No.1 to 3 / claimants, respondent No.4 / driver and respondent No.6 / employer, but despite service of notice, no one is present on their behalf.

Mr.Praveen Dhurandhar, learned counsel for respondent No.5 would submit that respondent No.5 has not contested the case on merits, so he may also be provided at least an opportunity to contest the case on merits.

I have heard learned counsel for the parties and perused the documents appended with writ petition.

It is well settled that under Order 9 Rule 13 of the CPC if the parties aggrieved demonstrate that summons was not duly served or that he was prevented by sufficient cause from appearing when the suit was called on for the hearing, the Court shall make an order setting aside the decree as against him upon such terms as to cause. The expression ‘sufficient cause’ must be liberally constituted and a board view must be taken so that the Court must exercise the powers ex debito justitiae. The Court has a wide discretion in deciding the ‘sufficient cause’ keeping in view the peculiar facts and circumstances of each case.

In the instant case, a registered notice has been sent to the petitioner / Insurance Company and endorsement to that effect that the addressee left the place appears to be not proper. In such circumstances, the Claims Tribunal ought to have required to take judicial notice of such institution. As such, the institution has not been closed and efforts should be taken for proper service. In such circumstances, the Claims Tribunal has allowed the claimants for substitute service, which appears to be not proper.

Considering the submission of learned counsel for the petitioner as paper publication was made in another district and the office of the petitioner is located in different district, so service is also not properly made.

In that view of the matter, this Court finds that the petitioner has shown sufficient cause for non-appearance and some of the delay in filing the application to set aside ex-parte award is also bona fide. Hence, this Court is of the view that the impugned order is not sustainable as the establishment of the Court or Tribunal is to advance the substantial justice.

Accordingly, the impugned order dated 28.11.2018 passed by the Additional Claims Tribunal to the Court of First Additional Motor Accident Claims Tribunal, Dongargarh in MJC No.20/2018 is set aside and consequently, application under Order 9 Rule 13 of the CPC read with Section 5 of the Limitation Act is allowed and the award dated 28.04.2017 passed by the Additional Claims Tribunal to the Court of First Additional Motor Accident Claims Tribunal, Dongargarh in Claim Case No.23/2014 is also set aside. Respondent No.5 is also permitted to contest the case on merits. The matter is remitted to the concerned Claims Tribunal to hear and to participate the petitioner / Insurance Company in the said case on merits. The Claims Tribunal is further directed to issue notices to respondents No.1 to 4 and 6 afresh and decide the case strictly on its own merit subject to payment of cost of Rs.2000/- to be paid to the claimants. It is further observed that direction as per order of this Court dated 6.5.2019 to the petitioner to deposit Rs.3,00,000/- before the Claims Tribunal and the said amount will be disbursed in proportion by the learned Claims Tribunal as per direction contained in the award dated 28.4.2017 shall remain intact. The aforesaid amount has to be adjusted as per final award, which has to be passed after hearing the parties afresh. Parties shall remain present before the learned Claims Tribunal on 11.4.2023. The concerned Claims Tribunal is further directed to decide the claim case expeditiously preferably within a period of eight months from the date of receipt of a copy of this order.

The writ petition is allowed to the extent indicated hereinabove.