Rajeswari vs Durga Bai and Others

Venugopal, J.—The appellant before this court is the second respondent in M. A. C. T. 0. P. No. 832 of'' 1970 on the file of the Motor

Accidents Claims Tribunal, Madras, filed by respondents 1 to 3 herein as petitioners. The first respondent in the O. P. is the Insurance Company.

As a result of the lorry accident the first respondent''s husband died on 2-8-1970 and respondents 1 to 3, along with the mother-in law of the first

respondent, obtained an award for a sum of 37,440, against the appellant and the Insurance Company, on 10-2-1972. The appellant remained ex

parte in the proceedings before the Tribunal, and hence the award against her was an ex parte award. The Insurance Company filed an appeal

against the award, and that was dismissed. Thereafter the Insurance Company paid a sum of Rs. 20,000 as its statutory liability was limited to Rs.

20,000. Since the balance amount of Rs. 17,400 under the award was not paid by the appellant, the respondents obtained a certificate from the

court to the Collector for recovery of the amount under S. 110-E of the Motor Vehicles Act. On 15-4-1981, the respondents advocate sent a

notice to the appellant stating that coercive steps will be taken or recovery of the amount due under the award. The postal address of the appellant

given in that notice was No. 25, Ist Main Road, West Shenoinagar, Madras 30. After the receipt of the notice, the appellant filed M P. 799 of

1981, before the Motor Accidents Claims Tribunal for setting aside the ex parte award. Her contention was that in the main O. P, substituted

service was effected on her, showing her place of residence is No. 4. East Arasamaram St. Aminjikarai, Madras and at that time, she was residing

at No. 1. First Cross St. Mehtanagar, Madras and thereafter she moved to her own house at No. 25 First Main Road, West Shenoynagar,

Madras 30, and that she became aware of the ex parte order only when she received the communication from the respondents advocate,

addressed to her to Shenoynagar, stating that coercive steps will be taken against her for realising the amount due under the award and within 30

days from that date, she has filed an application to set aside the award. The respondents'' contention is that under Rule 18 of the Tamil Nadu

Motor Accidents Claims Tribunal Rules 1961, O. 5, R. 20, C. P.C. ,is applicable to the proceedings before the Claims Tribunal and as the

grounds or taking substituted service existed in this case, the substituted service effected is proper and amounts to personal service on the appellant

and the application to set aside the ex parte award after more than nine years is not bona fide and is barred by limitation. The Claims Tribunal held

that it is likely that both at the time of the accident as well as when the award was passed, the appellant must have been residing at No. 4 East

Arasamaram St.. Madras, as given in the petition and the appellant was the owner of the lorry and if the award is set aside after a lapse of 11

years, the respondents will be put to hardship. On these findings, the Claims Tribunal dismissed the application. On appeal a learned single Judge

of this court held-

(a)Publication of the proceedings before the Tribunal was effected in a daily newspaper which has a wide circulation and the appellant cannot

contend that she had no knowledge of the proceedings;

(b) The appellant has stated earlier that she was never the owner of the vehicle and later pleaded that the vehicle was purchased in her name by her

father and this will clearly go to show that she is not bona fide in her contentions. With these findings, the learned single Judge of this court

dismissed the appeal. Against the order and judgment of the learned single Judge, the present Letters Patent Appeal has been filed.

The learned counsel for the appellant contended that substitute& service was effected at No. 4 East Arasamaram St. Aminjikarai, Madras,

where the appellant never resided and only when he respondents issued the letter dated 15-4-1981 to her correct Shenoynagar address, she came

to know about the award passed against her, and the appellant was never the owner of the lorry involved in the accident and she must be given an

opportunity to establish her plea.

The learned counsel for the respondents contended that in the reply affidavit filed by the appellant in W. P. 799 of 1981 it is specifically

admitted that her father purchased the lorry in her name and the address in which the substituted service was effected is the place of residence of

the appellant''s father as per the records maintained in the office of the Motor Vehicles Department, that the appellant must have had knowledge of

the proceedings before that Claims Tribunal and the application to set aside the ex parte award after lapse of 11 years would work great hardship

on the respondents and that there is no bona fides in the application filed by the appellant.

It is not disputed that the address where the substituted service was effected, is the address of the appellant''s father. As per the admission of the

appellant, her father purchased the lorry benami in her name. It is, therefore, quite likely that in the records maintained in the office of the Motor

Vehicles Department the residential address of the appellant''s father is shown as the address of the lorry owner. In the claim, proceedings before

the Tribunal, notice has been taken to the appellant to the address, which according to records maintained in that office, was the address of the

owner of the lorry. It is not the case of the appellant that the respondent knew about the whereabouts of the appellant and still, obtained by false

representation, an order for substituted service. By virtue of Rule 18 of the Tamil Nadu Motor Accidents Claims Tribunal Rules 1961, O. 5, R.

20, C. P. C. is applicable to the proceedings before the. Tribunal and where service is effected under O. 5, R. 20, C. P. C. and ex parte award is

passed it is for the appellant to show that the circumstances justifying the order for substituted service did not exist and that she was not keeping

out of the way for the purpose of avoiding service and the substituted service was not properly effected. The appellant has failed to establish this

requirement. As the summons in, the proceedings before the Claims Tribunal was taken only to the residential address of the appellant''s father, it is

quite, likely that the appellant must have been fully aware of the proceedings before the Claims Tribunal. Sub-rule (2) of O.5, R. 20, C. P. C.

provides that substituted service effected by order of the court shall be effected as personal service. It is ''due service'', within the meaning of O. 9,

R. 13 (2) and of Art. 123 of the Limitation Act. The need for effecting substituted service is a matter primarily for the trial court to consider and the

appellate court has no jurisdiction to consider whether the order of the trial court is based on sufficient grounds. The appellate court has only to see

whether the order for substituted service was issued according to law and the trial court was satisfied that the conditions of the rule are fulfilled. As

the summons was issued by the Claims Tribunal to the residential address of the appellant''s father, and as the appellant was evading service of the

summons, there was every justification for the trial court ordering substituted service and the substituted service effected is in accordance with law

and has to be upheld. As substituted service effected by order of the Court has the same effect as personal service, the learned single Judge of this

court was perfectly justified in coming to the conclusion that there was no valid reason for setting aside the ex parte order.

The learned counsel for the respondents contended that O. 9, C. P. C will apply to the proceedings, before the Tribunal and according to O. 9,

R. 13, C. P. C. the petitioner (appellant herein) should have made an application for condonation of the delay in filing the application to set, aside

the ex parte award within a period of 30 days, and not having done so the application and the appeal arising there from are not maintainable. It is

unnecessary to consider this contention of the learned counsel for the respondents as the appeal is dismissed on the other ground.

In the result, the appeal is dismissed, but in the circumstances, without costs.

Appeal dismissed.