Surinder Kumar vs New India Assurance Co. Ltd. and Others

Mehinder Singh Sullar, J.—The matrix of the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that initially, Manjit Kaur and her husband Khazan Singh claimant-respondent Nos. 2 and 3 (for brevity "the claimants") have instituted a petition to claim the damages caused to them on account of death of their son Ladi, in the motor accident in question. Since no body appeared on behalf of Surinder Kumar petitioner-owner and Baljit Singh proforma-respondent No. 4, driver of the offending vehicle, despite service, so, the ex parte proceedings were ordered against them by the Motor Accident Claims Tribunal (for short "the M.A.C.T."). Having completed all the caudal formalities, ultimately, the claim petition was partly accepted and an award of Rs. 1,84,500 was passed in favour of claimants by the M.A.C.T., by virtue of judgment/award dated 17.10.2003 (Annexure P1), the operative part of which is, as under:

As a result of my findings on the issues discussed above, I pass an award in favour of the claimants in a sum of Rs. 1,84,500 with costs. The amount of the compensation shall be apportioned between the claimants in equal shares. It shall be liability of Insurance Company to make the payment of the compensation within a period of two months, failing which, it shall be liable to pay the same with interest @ 12% p.a. from the date of the award. Counsels fee is assessed at Rs. 500. Memo of costs be prepared.

The Insurance Company is stated to have already deposited the entire amount of compensation. Thereafter, petitioner Surinder Kumar, owner of the offending vehicle, moved an application (Annexure F3) for setting aside the ex parte award (Annexure P1) and allowing him to contest the claim petition, inter alia, pleading that although he had engaged Mr. Satish Sharma, Advocate to contest the claim petition, but he has neither appeared nor informed him about its status.

Sequelly, the prayer of petitioner was refuted by the claimants as well as the Insurance Company. They filed their separate replies, in which, it was alleged that petitioner (owner) and driver of offending vehicle, were duly served and represented by their Counsel. Subsequently, since no body appeared on their behalf, so, ex parte proceedings were ordered against them. It was alleged that no ground, muchless cogent, for setting aside the ex parte award is made out. It will not be out of place to mention here that the claimants and Insurance Company have stoutly denied all other allegations contained in the application and prayed for its dismissal.

In the wake of respective pleadings of the parties, the M.A.C.T. framed the following issues:

(i) Whether there are sufficient grounds to set aside the award dated 17.10.2003 rendered in M.A.C.T. No. 2356 of 22.9.1998? --OPA

(ii) Whether the application is within limitation? --OPR

(iii) Relief.

The parties produced their evidence in order to substantiate their respective pleas.

Taking into consideration the evidence and material on record, the M.A.C.T. decided both the issues against the petitioner-owner and dismissed his application (Annexure P3), by way of impugned order dated 19.8.2013 (Annexure P1A).

Aggrieved thereby, the petitioner has preferred the present petition, invoking the superintendence jurisdiction of this Court under Article 227 of the Constitution of India.

After hearing the learned Counsel for the petitioner, going through the record with his valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant petition in this regard.

Ex facie, the arguments of learned Counsel that although the petitioner (owner) was duly served and had engaged his Counsel to defend the claim petition on his behalf, but subsequently, since neither any body appeared on his behalf before the M.A.C.T. nor informed him about the status of the claim petition, so, the ex parte award is liable to be set aside, are neither tenable nor the observations of Hon''ble Apex Court in cases Bhagmal and Others Vs. Kunwar Lal and Others, and Malkiat Singh and Another Vs. Joginder Singh and Others, , are at all applicable to the facts of the present case, wherein, it was observed that rules of procedure are after all handmaid of justice, if Counsel for party pleads no instructions and party is neither found careless nor negligent in defending the case, then the application for setting aside the award filed within a period of 30 days from the knowledge of decree should be accepted and the ex parte decree is liable to be set aside. Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of the petitioner in the instant controversy.

As is evident from the record that the claimants unfortunate parents, claimed the damages on account of death of their son Ladi. The petitioner-owner and driver of the offending vehicle were duly served and initially represented by their Counsel. Subsequently, as no body appeared on their behalf, therefore, ex parte proceedings were ordered against them. The application for setting aside the ex parte award was dismissed by the M.A.C.T. Order 9 Rule 13, CPC postulates that in any case, in which, a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

What cannot possibly be disputed that in the instant case, the petitioner (owner) and driver of offending vehicle were duly served. They have miserably failed to prove that they were prevented by sufficient cause from appearing in Court, which is a condition precedent for setting aside the ex parte award. As indicated hereinabove, the ex parte award (Annexure P1) was passed on 17.10.2003, whereas, the application (Annexure P3) for setting aside it was filed on 18.8.2005, that too, without an application for condonation of delay. The M.A.C.T. has directed the Insurance Company to make payment of compensation of awarded amount to the claimants. Admittedly, the award stands already satisfied by the Insurance Company and even the decree holder-claimants had already withdrawn the amount in full and final satisfaction of the award. In that eventuality, to my mind, the claimants (who are unfortunate parents of the deceased) cannot possibly be again burdened for re-trial of the case without any fault on their part.

Therefore, the M.A.C.T. has correctly dismissed the application of petitioner (owner) for setting aside the ex parte award, by means of impugned order (Annexure P1/A), which, in substance, is as under:

In this case, it is not in dispute that the applicant/respondent No. 2 was duly served and he was represented by a Counsel. Perusal of the records suggests that on 28.3.2000, Insurance Company through its Counsel has moved an application before the Tribunal calling upon the applicant/respondent No. 2 and his driver to produce the insurance policy of the truck and the driving licence of the respondent No. 1. However, on the adjourned date i.e. 9.5.2000, neither the respondent Nos. 1 and 2 nor their Counsel had appeared and accordingly, they were proceeded against ex parte. Thereafter on 12.2.2001, the issues were framed and the matter had been adjourned for recording the evidence of the claimants and after recording the evidence of the contesting respondents, the learned Tribunal vide its order dated 17.10.2003 passed the award. Since the applicant/respondent No. 2 was absented on 9.5.2000 and thereafter several adjournments were granted till the final arguments were heard by the Tribunal, but the applicant/respondent No. 2 remained negligent in attending the case before the Tribunal. Admittedly, in other two connected claim petitions, the applicant/respondent No. 2 through his Counsel had been appeared and contested the case on merits. In this case, the Counsel who was engaged and was appearing on behalf of the applicant/respondent No. 2 in other two connected cases, was not examined by the applicant/respondent No. 2, who was in a position to explain the circumstances in which, the applicant/respondent No. 2 could not be informed but in absence of his evidence, it will be presumed that the applicant/respondent No. 2 was having knowledge about the proceedings of the case and he cannot plead ignorance about the proceedings of the case. He ought to have been diligent. There is another disturbing feature in this case. Admittedly, the limitation for filing the application for setting aside the final judgment shall be 30 days from the date of ex parte judgment and decree. If the respondent was having cause for not filing the application within a period of 30 days, the respondent ought to have filed an application u/s 5 of the Limitation Act for explaining the delay for non-filing of the application within the prescribed period of limitation. In this case, admittedly, no such application has been filed by the applicant/respondent No. 2. The application was apparently barred by time and without an application for condonation of delay, such an application is not maintainable. The applicant/respondent No. 2 filed the instant application on 18.8.2005 and the award was passed on 17.10.2003. A period of one year and ten months is not a small period. During this period, the applicant/respondent No. 2 ought to have approached to the Counsel to know the progress of the case and in absence of further explanation, after such a long period the explanation submitted by the applicant/respondent No. 2 that he became award about the decision of the case when he got received the notice of recovery from the office of Collector, Chandigarh, is appears to be after thought. An inordinate delay of one year and 10 months cannot be justified as sufficient cause. It is the case of the applicant/respondent No. 2 that he got the certified copy of the award passed in two other connected claim petitions and thereafter, he had filed two separate appeals before the Hon''ble High Court. If, this is so, then it cannot be believed that the applicant/respondent No. 2 did not Inquire from his Counsel about the status of the present case in which he was proceeded against ex parte. The applicant/respondent No. 2 was not diligent in pursuing the case and slept over the matter, therefore, could not be allowed to take advantage of his own wrong. He should have been more vigilant by visiting his Counsel at short intervals to check up the progress of the litigation.

Meaning thereby, the M.A.C.T. has examined the matter in the right perspective and has recorded the cogent grounds in this respect. Such order, containing valid reasons, cannot legally be set aside, in exercise of superintendence jurisdiction of this Court under Article 227 of the Constitution of India, unless and until, the same is perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned Counsel for petitioner, so, the impugned order (Annexure P1A) deserves to be and is hereby maintained in the obtaining circumstances of the case.

No other point, worth consideration, has either been urged or pressed by the learned Counsel for the petitioner. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition filed by the petitioner-owner is hereby dismissed as such.

Needless to mention that petitioner-owner of offending vehicle would be at liberty to avail his appropriate legal remedy.