New India Assurance Co. Ltd. vs Punit and Others

A.K. Gohil, J.—This order shall also govern the disposal of connected Civil Revision Nos. 1047, 1048,1049, 1050, 1051, 1952, 1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1062, 1063, 1064, 1065, 1066, 1068, 1069, 1070, 1071, 1072, 1073, 1974 and 1075 of 1999, New India Assurance Co. Ltd. Indore v. Punit s/o Prakashchandra Agraual and Ors. as common questions are involved in all these civil revisions.

The applicant/New India Assurance Co. Ltd., has filed this civil revision u/s 115 of the CPC (for short the Code") against the order dated 12.7.1999 passed by Member, Motor Accident Claims Tribunal, Rajgarh (Biaora) in Misc. Claim Case No. 25/1999, by which it allowed the application filed by respondent No. 1/owner of the vehicle, under Order IX Rule 13 of the Code and set aside the ex parte award dated 29.6.1988 passed in Claim Case No. 28/1994.

The brief facts for disposal of this revision are that respondent Nos. 3 to 5 filed a claim petition against respondent No. 1/owner of the vehicle; respondent No. 2/driver of the vehicle; and against applicant/insurer of the vehicle. The said claim petition was filed on 6.4.1993. By order dated 24.4.1993 notices were directed to be issued to the respondents of the main claim petition and the case was listed on 2.7.1993 for return of service of notice. Notice, for the date of hearing on 2.7.1993, was served by ordinary process and the same was received by the owner of the vehicle on 24.6.1993. On 2.7.1993 the employees of the Court were on strike, 3rd and 4th July, 1993 were public holidays, therefore, the case was taken up on 5.7.1993. On 5.7.1993 Court again directed to issue fresh notices by Regd. A/D to the respondents. This notice, for the date of hearing on 25.8.1993, was also received by respondent No. 1/owner of the vehicle. The case was taken up on 25.8.1993 but none appeared for respondent No. 1/owner of the vehicle and thereafter the case was adjourned to 24.9.1993. On 24.9.1993 also none appeared for respondent Nos. 1 and 2, owner and driver of the vehicle and, therefore, they were proceeded ex parte. Mr. S.K. Vyas, Advocate appeared for respondent No. 3/Insurance Company in the main claim petition. Thereafter the Tribunal enquired the matter and by an Award dated 29.6.1998 the learned Tribunal exonerated the Insurance Company and held the owner and driver of the vehicle liable for payment of compensation and awarded compensation against them. Against the said award, treating it as an ex parte award, respondent No. 1/owner of the vehicle filed an application on 11.2.1999 under Order IX Rule 13 of the Code for setting aside ex parte award on the ground that notices were not properly served on him. This application was registered as M.J.C. No. 25/1999. In this M.J.C. case replies of the application were filed on behalf of the Insurance Company and also on behalf of the claimants. In this M.J.C. on 12.7.1999 respondent/owner submitted that he does not want to produce any evidence and wants that this application should be decided after hearing the arguments. Thereafter arguments of the parties were heard and by order dated 12.7.1999 the member of the Claims Tribunal set aside the award dated 29.6.1998 on the ground that proper notices were not served on respondent No. 1/owner of the vehicle for the date of hearing on 25.8.1993 as well as for the hearing on 24.9.1993. The Tribunal placed reliance on two decisions of M.P. High Court reported in the case of Nandkishore Kajarwal & Sons v. M.P. State Textile Corporation 1983 M.P.W.N. 369, and also in the case of Harnam Singh v. Durga General Stores 1986 (1) MPWN 205. Being aggrieved by the impugned order passed by the Tribunal, the Insurance Company has filed this revision.

I have heard Mr. S.V. Dandwate, learned Counsel for applicant/Insurance Company; Mr. B.L. Pavecha, learned Senior Advocate for respondent No. 1/owner of the vehicle; and perused the record. None appeared for respondent Nos. 2 to 5.

Mr. Dandwate, learned Counsel for applicant submitted that the impugned order is absolutely illegal and has been passed without considering the provisions of law as proper notices were duly served twice through Court process and by Registered A/D post. Firstly on 24.6.1993 for the date of hearing on 2.7.1993 which was personally received by respondent No. 1/owner of the vehicle. He further submitted that if on 2.7.1993 the employees of the Court were on strike and 3rd and 4th July were public holidays, then it was his own duty to come to the Court on 5th July and to appear as the notice was duly served on him. Even then with a view to provide an appropriate opportunity of hearing to respondent No. 1/owner of the vehicle, the Court directed to issue fresh notice by Regd. A/D post for the date of hearing on 25.8.1993 which was also duly received by him and right from 25.8.1993 till 29.6.1988 despite the service and full knowledge of the pendency of the claim petition, respondent No. 1/owner of the vehicle did not appear. Therefore, the Tribunal has wrongly set aside the award on the ground that there was no proper service on respondent No. 1/owner. He further submitted that both the decisions relied on by the Tribunal are also not helpful to respondent No. 1. In the case of Nandkishore Kajariwal (supra), it was found that the notice was not duly served as the acknowledgements were not received by the Court and there was non-compliance of the provisions of Order V Rule 19-A of the Code. But here in this case there is no such case for drawing any presumption as the notice was duly served on respondent No. 1 even by Regd. A/D post and the Court had already received the acknowledgement before proceedings ex parte. He further submitted that in the case of Harnam Singh (supra), it has been held that order for substituted service cannot be passed without effecting service by general mode. According to him this judgment is also not helpful to respondent No. 1 as the same is not applicable on the facts of this case. Therefore, his submission is that the Tribunal has wrongly allowed the application which was filed under Order IX Rule 13 of the Code and has wrongly set aside the award dated 29.6.1998. Therefore, this revision deserves to be allowed.

In reply the only submission of Mr. B.L. Pavecha, learned Senior Advocate for respondent No. 1 is that revision against the impugned order setting aside ex parte award cannot be filed. But in the case of Krishan Gopal Devi Prasad and Others Vs. Dattatraya Madho Lad, , it has been held that the Motor Accident Claims Tribunal constituted under the Motor Vehicles Act, is a special Tribunal and satisfies the tests of a Court of judicature and is subordinate to the High Court by virtue of Section 3 of the Code and the orders passed by the Tribunal are revisable u/s 115. Therefore, in view of the aforesaid decision of the M.P. High Court, this objection of learned Counsel for respondent No. 1 carries no force that this Court has no jurisdiction to hear this revision.

I have perused the proceedings of the original claim case as well as of M.J.C. It is not in dispute that in the original claim case initially notice through Court by ordinary process was issued on 3.5.1993 and it was duly served on 24.6.1993 personally on respondent No. 1/owner of the vehicle for the date of hearing on 2.7.1993 but thereafter he did not appear though there was strike on 2.7.1993 and public holidays on 3rd and 4th of July, the case was taken up on 5.7.1993 and on that date i.e. 5.7.1993 Tribunal has not committed any illegality in directing to issue fresh notice through Regd. A/D post. The notices were duly served on respondents for the hearing on 25.8.1993, acknowledgements is already in the record of the Tribunal and on 25.8.1993 no body appeared for respondent No. 1, the case was adjourned to 24.9.1993 but even on that date no body appeared on behalf of respondent No. 1 and the Court proceeded ex parte. It is also not in dispute that thereafter the case remained pending before the Tribunal up to 29.6.1998 and during that period despite the due and proper service and knowledge of filing of the claim case, no body appeared on behalf of respondent No. 1. Respondent No. 1 has filed M.J.C. an application under Order IX Rule 13 of the Code on 11.2.1999 claiming therein that he came to know about the passing of the award first time on 25.1.1999 when the notices were issued in the execution proceedings.

I have also perused the record of M.J.C. It is clear from the perusal of the record of M.J.C. that respondent No. 1/owner of the vehicle neither entered in the witness-box, nor examined himself, nor offered any explanation, nor denied his signatures on the postal acknowledgment as well as on summons. On the contrary he had submitted that he does not want to lead any evidence. Since he has not denied his signatures on the receipts of notices, therefore, it is clear that notices were duly served on him. In the absence of any evidence of respondent No. 1 in the M.J.C., the Tribunal cannot ignore the receipt and cannot record any contrary finding that the notices were not validly served. In fact, the Tribunal has failed to appreciate the bare facts of the case on record that earlier notices were served twice on respondent No. 1 by the Court and has also failed to apply his judicial mind while setting aside the award passed earlier by the Tribunal. The Tribunal without any evidence on record and without considering the fact that respondent No. 1 has not denied his signatures on the acknowledgements and summons which were personally received by him and the fact that he was also having the knowledge of the pendency of the claim petition, has wrongly and illegally set aside the award and that too without any application of mind. Therefore, the impugned order passed by the Tribunal is absolutely illegal and liable to be set aside.

After hearing learned Counsels for parties and after perusal of the record, I am of the view that the Tribunal has committed a grave illegality in passing the order dated 12.7.1999 and in allowing the application under Order IX Rule 13 of the Code. In fact this was nothing but a deliberate attempt of the learned Member of the Tribunal to set aside award without any basis and evidence on record. The learned Tribunal has also not considered the second proviso of Rule 13 of Order IX of the Code that "no Court shall set aside a decree passed ex parte merely on the ground of irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff''s claim". According to me earlier in the original claim case the Tribunal had not committed any illegality in serving notices firstly by ordinary process through Court and secondly by Regd. A/D Post and even otherwise I do not find any irregularity in the same when the first notice was duly served through Court process and it was duly received on 24,6.1993. In fact it was not the duty of the Tribunal to issue another notice by Regd. A/D post, but on the contrary it was the duty of respondent No. 1/owner of the vehicle himself to enquire from the Court and if there was strike on 2.7.1993 and 3rd and 4th July were public holidays to appear on 5th July and to enquire from the Court about the Court proceedings. But even then the Tribunal was cautious and gave fullest opportunity to respondent No. 1 to appear and directed for fresh service of summons through Regd. A/D post which was also duly served and received by respondent No. 1/owner of the vehicle himself on 25.8.1993 and respondent No. 1 has failed to rebut it in the M.J.C.

In view of the aforesaid clear cut factual aspect of the matter, there was no case for setting aside ex parte award passed by the Tribunal against respondent No. 1. Therefore, I hold that the impugned order passed by the Tribunal is not only without jurisdiction but misuse of his powers by deliberately allowing the application without any sufficient evidence and proof on record by applying the wrong law and twisting the facts.

Consequently, I allow this and connected civil revisions and set aside the impugned order dated 12.7.1999 passed in M.J.C. by the Tribunal and dismiss the application filed under Order IX Rule 13 of the Code filed by respondent No. 1/ owner of the vehicle, with costs. Record be returned to the Tribunal.