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2008 DIGILAW 1363 (MP)

Harisingh v. Kallobai

2008-11-21

S.K.GANGELE

body2008
ORDER 1. Appellants have filed this appeal against the order dated 14.2.2006 passed by Additional District Judge, Ganj-Basoda, district Vidisha in MJC No: 03/05 rejecting the application filed by appellants under Order 9 Rule 13 CPC for setting aside exparte award passed under the provisions of Motor Vehicles Act. 2. Claimants-respondents, Kallobai, Dularibai and Guddi filed a claim application for compensation before the claims Tribunal pleading that deceased Kamal Singh had been travelling in a tractor-trolley on 14.5.2004. The tractor was bearing registration No. MP-40-M-9110 and the trolley was bearing registration No. MP-40-M-9111. The aforesaid tractor-trolley owned by Harisingh and it was being driven by Ganeshram at the relevant time. Due to rash and negligent driving of the tractor by Ganeshram the trolley turned turtle and Kamalsingh fell down from the trolley and died in the accident. A report of the accident was lodged at the police station and an offence was registered. Subsequently, the Widow and daughters of the deceased filed a claim application before the Claims Tribunal. On 29.7.2004 the Claims Tribunal issued notice on the aforesaid Claim-application to non-applicants. The Non-applicants, who were driver and owner of the offending vehicle, refused to take notice. Hence, they were proceeded exparte by the Claims Tribunal vide order dated 25.10.2004. The Claims Tribunal passed an award of Rs. 1,89,500/- on 3.1.2005. 3. After passing of the award appellants filed an application under Order 9 Rule 13 CPC for setting aside the exparte award. They pleaded that no summons were served on them and they came to know about passing of the award on 4.3.2005 when the respondents tried to forfeit the tractor. In support of the application appellant Ganeshram examined himself and stated that he had not recieved any notice from postman and with the collusion with postman notice was sent back. Harisingh also examined himself and he stated the same fact that one Governdhan with the collusion with postman has affixed a false thumb impression and returned back the summons. On behalf of respondents Goverdhan and Baijnath have been examined before the Court. They stated that notices were served on the appellants. 4. The trial Court rejected the application of the appellants on the ground that notices were sent to them by registered AID post and there is an endorsement of postman that the respondents refused to take notice. On behalf of respondents Goverdhan and Baijnath have been examined before the Court. They stated that notices were served on the appellants. 4. The trial Court rejected the application of the appellants on the ground that notices were sent to them by registered AID post and there is an endorsement of postman that the respondents refused to take notice. Apart from this, Harising in his evidence admitted that he had knowledge about the case and also tried to compromise the matter. 5. Learned counsel for appellants has submitted that no notice was served on the appellants. The exparte award is illegal and the Claimants deliberately with the connivance of the postman sent the notices back with endorsement with regard to refusal of notices. Contrary to this, learned counsel for respondents has submitted that there was a proper service of summons. The appellants deliberately refused to take notice. Apart from this, from the evidence of appellant, Harising, it is clear that he 'had knowledge of the case. 6. From the record of the Claims Tribunal it is clear that registered AID post notices were sent to the appellants for service and those notices have been returned back with the endorsement that appellants refused to take notice (Lene Se Inkar). Thereafter, Claims Tribunal proceeded expart against the appellants vide order dated 25.10.2004. Apart from this, appellant, Harising, in para 5 of his evidence in cross-examination admitted that Gajrajsingh resides in his village and he knew him. Kallibai's maternal village is at Vidoniya. He had gone to maternal place of Kallibai and he told Kallibai to enter into compromise with Ganeshram and Ganeshram was ready to give Rs. 50,000/- to Kallibai. Kallibai is the widow of deceased Kamalsingh. Ganeshram, as per the report, had been driving the tractor at the relevant time. From the aforesaid evidence, it is clear that appellant Harising had knowledge about the pendency of the claim case. 7. Hon'ble the Supreme Court in Puwada Ventateswara Rao v. Chidamana Venkata Ramana [ (1976) 3 SCR 551 ] has held as under with regard to presumption in case notices were received with noting of postman that "refused to take notice" : "The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produced the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us." 8. Rule 240 of the Motor Vehicles Rules, 1994 prescribes procedure to be followed by the Claims Tribunal in holding inquires. Under the aforesaid Rule the provisions of Order 5 Rule 9 CPC have been made applicable with regard to inquiry under the Motor Vehicles Act of claim cases. Order 5 Rule 9 CPC prescribes the procedure for delivery of summons and service of summons. There was amendment in the aforesaid Rule by Code of Civil Procedure (Amendment) Act, 2002. It was made effective w.e.f. 1.7.2002. After the amendment the provisions are as under: "9. Delivery of summons by Court. -- (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, there he is such an officer, the summons may be sent to him in such manner as the Court may direct. . (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, there he is such an officer, the summons may be sent to him in such manner as the Court may direct. . (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court: Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff." 9. It is clear from the aforesaid provision that the Court can serve the notice by registered AID post at the address' of the defendant. In the present case, the summons were sent for service to the appellants by registered AID post at their addresses. They refused to take the summons. There are endorsements of postman on the summons of refusal to take notice. Looking to the evidence of Harising, appellant, this Court from the conduct of Harisingh himself, presume that there was service of notice on appellants and appellants deliberately did not appear before the Claims Tribunal. In such circumstances, in my opinion, the learned lower Court has not committed any error in rejecting the application filed by the appellants for setting aside the exparte award under Order 9 Rule 13 CFC. 10. Consequently, I do not find any merit in this appeal. It is hereby dismissed. No order as to cost.