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2010 DIGILAW 775 (GAU)

National Insurance Co. Ltd. v. F. Lalvena

2010-09-29

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. This revision petition is filed under Article 227 of the Constitution by the Petitioner National Insurance Company Ltd. who was the opposite party in MACT Case No. 23 of 2007 and applicant in Miscellaneous Application No. 5 of 2008 arising out of the aforesaid MACT case challenging the order dated 9.9.2009 passed by the learned Member-cum-Presiding Officer, Motor Accident Claims Tribunal, Aizawl, Mizoram ("the Tribunal') in aforesaid Miscellaneous Application No. 5 of 2008 whereby and there under the learned Tribunal rejected the application of the Petitioner herein filed under Order 9, Rule 13 of the Code of Civil Procedure, 1908 ('the Code') for setting aside the ex parte judgment and award dated 20.11.2007 passed by the- learned Tribunal in MACT Case No. 23 of 2007 awarding a compensation of Rs. 1,75,000 to be paid to the Respondent herein by the Petitioner insurance company with simple interest @ 9% per annum from the date of filing the claim petition till realization from the Petitioner herein. 2. Heard Mrs. Melon Dawngliani, learned Counsel appearing for the Petitioner insurance company and Mr. S. Pradhan, learned Counsel appearing for the Respondent. 3. The facts loading to filing of the present revision petition in a nutshell, are that the Respondent heroin filed a petition before the learned Tribunal under Section 163A of the Motor Vehicles Act, 1988 ('the Act of 1988') claiming compensation for death of his son Lalrinkima in a vehicular accident on 20.11.2006 at the place between Selling and Thingsulthliah white he and his deceased son were proceeding towards. Thingsulthliah from Selling in a Motor Cycle (Hero Honda) bearing registration No. MZ-01D/2632 belongs to him being driven by his deceased son due to slippery of road. Deceased Lalrinkima got injury in various ports of his body and ultimately succumbed to the injuries at hospital. The said petition was registered as MACT case No. 23 of 2007. Due to absence of the learned Counsel of the O.P. insurance company, Petitioner herein, on 2/3 consecutive fixed dates in the learned Tribunal, the learned Tribunal proceeded with the claim of the Respondent herein ex parte and accordingly passed the judgment and award dated 20.11.2007 directing the O.P. insurance company to pay a compensation of Rs. 1,75,000 to the claimant, Respondent herein as stated supra. 1,75,000 to the claimant, Respondent herein as stated supra. Being aggrieved by the said ex parte judgment and award, the Petitioner filed an application under Order 9, Rule 13 of the Code before the learned Tribunal for setting aside the said ex parte judgment and award wherein the Petitioner also explained the reasons for delay caused in filing such application without filing any independent petition under Section 5 of the Limitation Act and the said application was registered as Miscellaneous Application No. 5 of 2008. The learned Tribunal rejected the said application vide impugned order dated 9.9.2009 being time barred. Hence, the instant revision petition. 4. Mrs. Helen while urging for setting aside the order dated 9.9.2009 would contend that the learned Tribunal while rejecting the prayer for condonation of delay and setting aside the ex parte award failed to consider the aspect that the petition filed by the Petitioner under Order 9, Rule 13 of the Code was a composite petition both for condonation of delay as well as for setting aside the order of ex parte award. She submitted that the learned Counsel for the O.P. insurance company though appeared before the learned Tribunal on 3.5.2007, but the learned Counsel has been shown as absent and on 5.6.2007, the learned Counsel could not appear before the learned Tribunal as she was at Kolkata for medical check up. She further submitted that the delay in filing the application under Order 9, Rule 13 of the Code caused due to the official procedure that has to be followed and complied with before filing such application before the Tribunal and not only that the ex parte judgment and award dated 20.11.2007 was received by the learned Counsel for the O.P. insurance company only on 7.12.2007 and thereafter, the said judgment was sent to the Regional Office of the petition insurance company at Guwahati from where the legal opinion was sought for and after receiving the information and approval from the Regional Office, the file was placed before the Divisional Office at Silchar which in turn sent the same to the Branch Office at Aizawl. By the time it reached back the Aizawl Branch with final decision it was already met April 2008. By the time it reached back the Aizawl Branch with final decision it was already met April 2008. Thereafter also it took some time to engage a counsel and the entire delay was being caused due to unavoidable circumstances and it was not an intentional one, rather due to bureaucratic method of process. She, therefore, submitted that the learned Tribunal ought to have condoned the delay and set aside the ex parte award passed against the Petitioner insurance company. She finally submitted that the learned Tribunal should not go for hyper-technicality instead of doing the substantial justice. 5. Mr. Pradhan raised the question of maintainability of he instant revision petition under Article 227of the Constitution on the ground that against an order of rejection of an application under Order 9, Rule 13 of the Code, an appeal under Order 43, Rule 1 of the Code, hence no petition under Article227 of the Constitution is maintainable. He contended that the learned Tribunal did not commit any wrong rejecting the petition of the present Petitioner filed under Order 9, Rule 13 of the Code for setting aside the ex parte award as admittedly the said petition was filed after the period of limitation and no separate petition for condoning the delay was filed. His final contention was that unless the delay is condoned, the learned Tribunal cannot take up the hearing of the application filed under Order 9, Rule 13 of the Code on merit and as admittedly there was no such application in the instant case, the learned Tribunal has rightly rejected the application of the Petitioner herein filed under Order 9, Rule 13 of the Code. 6. It is the admitted position that the Petitioner who was the O.P. before the learned Tribunal filed an application under Order 9, Rule 13 of the Code for setting aside the order of ex parte award passed by the learned Tribunal. Hence, to appreciate the submissions of the learned Counsel for the parties and also for proper examination of the impugned order, it is necessity to reproduce Order 9, Rule 13 of the Code. Accordingly, the same is reproduced herein below: 13. Hence, to appreciate the submissions of the learned Counsel for the parties and also for proper examination of the impugned order, it is necessity to reproduce Order 9, Rule 13 of the Code. Accordingly, the same is reproduced herein below: 13. Setting aside decree ex parte against Defendant: 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 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: Provided that where the decree is of such d nature that if cannot be set aside as against such Defendant only it may be set aside as against all or any of the other Defendants also: Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an 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. Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the Appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. 7. In view of the aforesaid submissions of the learned Counsel for the parties and on perusal of the impugned order dated 9.9.2009 as well as the provisions of Order 9, Rule 13 of the Code, according to this Court, the following questions arise for decision in the instant revision petition: Firstly, when an appeal lies against the order on an application for setting aside the ex parte order of decree or award whether a revision petition under Article 227 of the Constitution lies, particularly when the ex parte order is passed in a motor accident claim petition. Secondly, whether a court can consider an application filed under Order 9, Rule 13 of the Code for setting aside the order of ex parte decree/award filed beyond the period of limitation without separate application for condonation of delay though the delay has been explained in the application to setting aside the order of ex parte decree. 8. Upon going through the provision of Order 43, Rule 1 of the Code, it is crystal clear that against the order of rejection of an application under Order 9, Rule 13, an appeal lies under Order 43, Rule1 of the Code. Hence, the submission of Mr. Pradhan has some force. But at the same time if we go through Section 169 of the Act of 1988, it would be evident that the legislative discussed therein the procedure and power of the claims tribunal and particularly it is stated "in holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit" and not only that the Claims Tribunal has also been given all the powers of the civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed and the claims tribunal shall be deemed to be civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure. 9. From the aforesaid provisions of the Act of 1988, it is clear that thought the Legislature said that the learned tribunal has some power of the civil court, but it did not specifically state what procedure should be followed by the learned tribunal while deciding an application filed by the aggrieved party for setting aside an ex parte awards, rather in Sub-section (1) of Section 169, the Legislature prescribed for following summary procedure as it (tribunal) thinks fit meaning thereby what procedure should be followed in a claim petition is left with the learned Tribunal. 10. 10. In view of the above, this Court is of considered opinion that it cannot be straightway said that the appeal is the only remedy for impugning the order of rejection of an application for setting aside the ex parte award passed in a motor accident claim case. There is no doubt that in a civil suit or appeal if an ex parte decree is passed and for setting aside such a decree an application under Order 9, Rule 13 of the Code is filed and ultimately such prayer is rejected then an appeal lies under Order 43, Rule 1 of the Code, but a procedure prescribed for civil suit cannot be equated with a procedure before the Tribunal like Motor Accident Claims Tribunal as no such specific procedure is prescribed. Therefore, according to this Court, the order rejecting an application for setting aside an ex parte decree/award in a motor accident claim case can be challenged under Article 227 of the Constitution. Hence, the question No. 1 is answered in the affirmative. 11. To answer the second question, the court has to first look into whether the application filed by the present Petitioner is an application for setting aside the ex parte order of award by the learned Tribunal or it is a composite application wherein delay has been explained for the purpose of condoning the same and also to set aside the ex parte order of award. In the instant case, the Petitioner admittedly in its petition under Order 9, Rule 13 of the Code explained the delay caused in filing such application for setting aside the order of ex parte award and at the same time, also prayed for setting aside the ex parte order of award passed on 20.11.2007 by the learned Tribunal. Therefore, it cannot be said that the said application was only an application for setting aside the order of ex parte award, rather it was a composite petition. When in the application for setting aside the ex parte award the Petitioner explained the delay in filing such application without making any prayer for condonation of delay, the learned Tribunal has to presume that such explanation was for condonation of delay and not for any other purpose. When in the application for setting aside the ex parte award the Petitioner explained the delay in filing such application without making any prayer for condonation of delay, the learned Tribunal has to presume that such explanation was for condonation of delay and not for any other purpose. Therefore, the learned Tribunal should have considered the same keeping in mind that a justice seeker has approached the court for substantial justice and not to defeat justice with the help of a sword of technicality. 12. Whether the court will condone the delay or not, it is within the discretion of the court, but the court is to consider why the application could not be filed in time before rejecting the application under Order 9, Rule 13 of the Code. The learned Tribunal also failed to consider that it has inherent power and such inherent power is given to it only to do substantial justice so that a justice seeker should not be ousted from the arena of the court or tribunal only on the ground of technically tyranny. 13. The learned Tribunal while passing the impugned order dated 9.9.2009 rejecting the prayer for setting aside the ex parte order dated 20.11.1997 passed in MACT Case No. 23 of 2007 stated, inter alia, as follows: Perused the main case records of MACT Case No. 23 of 2007 and it is found that ex parte order against the O.P. (present applicant) was passed on 5.7.2007, i.e., 317 days prior to the filing of present application and ex parte final judgment and award was pronounced on 20.11.2007, i.e., 182 days prior to the filling a present application. At the same time as per para 8 of the present application under consideration, the applicant was served a copy of judgment and award dated 20.11.2007 on 7.12.2007, i.e., 165 days prior to the filing or the present applicant. The Petitioner never pray for condonation of delay. It is my irresistible conclusion that the present application of the applicant is barred by limitation. In the result, the application of the applicant for setting aside ex parte order dated 20.11.2007 is dismissed. 14. The Petitioner never pray for condonation of delay. It is my irresistible conclusion that the present application of the applicant is barred by limitation. In the result, the application of the applicant for setting aside ex parte order dated 20.11.2007 is dismissed. 14. Upon going through the aforesaid findings of the learned Tribunal, it appears that the learned Tribunal rejected the aforesaid application filed under Order 9, Rule 13 of the Code only on the ground of missing the prayer for condonation of delay in the said application as the same was filed beyond the period of limitation and not on merit. It appears from the record, particularly the impugned order that the certified copy of the award dated 20.11.2007 was supplied to the Petitioner insurance company on 7.12.2007, i.e., after fifteen days from the date of award. As per Sub-section (2) of Section 168 of the Act of 1988, the learned Tribunal is duty bound to deliver copy of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. Admittedly the copy of judgment and award in question was not supplied to the Petitioner insurance company immediately after the pronouncement of the same and even not within the prescribed period under the statute. When the copy of the order/award is not given to the parties as required under the statute within the prescribed period then the limitation for filing an application for setting aside an order of ex parte award/decree should start from the date of knowledge of the ex parte decree/award and the party who is affected by the said ex parte order of award, has the right to file application for setting aside the order of ex parte award/decree within thirty days from the date of his/her knowledge and if any further period is taken for filing such application, the same has to be treated as a delay and such delay has to be explained for condonation. In the instant case, prima facie it appears that the Petitioner insurance company gave explanation for the delay caused in filing the application for setting aside the order ex parte award. In the instant case, prima facie it appears that the Petitioner insurance company gave explanation for the delay caused in filing the application for setting aside the order ex parte award. Now, whether such explanation will be accepted by the court or not for the purpose of condoning the delay is within the discretion of the court as stated supra, but the court can neither throw away not reject an application filed under Order 9, Rule 13 of the Code for setting aside the order of ex parte decree/award wherein reasons for causing delay in filing the application have been explained being the same is a composite one. 15. According to this Court, when the delay is explained in the petition under Order 9, Rule 13 of the Code, the same has to be treated as a composite petition and when a composite petition is filed, no separate application under Section 5 of the Limitation Act is needed, which the learned Tribunal failed to appreciate. Mere non-mentioning of the provision for condoning the delay in the application would not change the nature and character of the application for condonation of delay. 16. The above view of this Court finds support from the decision of the Allahabad High Court in Rajiv Lochan v. Madan Gopal Sharma, AIR 1989 All. 45 wherein it has been held as follows: ...for condonation of delay, not in all the cases, it is always necessary to move an application under Section 5 of the Limitation Act. But, if from the affidavit of a particular case, the delay is found explained fully, the court has ample power to condone the same. 17. Under the above circumstances, this Court is of the considered view that the impugned order of the learned Tribunal dated 9.9.2009 is required to be interfered with. Accordingly, the same interfered with and set aside and the case is remanded back to the learned Tribunal with a direction to treat the petition filed by the present Petitioner under Order 9, Rule 13 of the Code for setting aside the order of ex parte award as a composite petition and not to ask for any separate petition under Section 5 of the Limitation Act. This Court has refrained itself from expressing any opinion regarding the ground taken by the Petitioner in the aforesaid petition for the delay caused in filing such petition as it may influence the learned Tribunal, more so encroach the jurisdiction vested in the Tribunal. The Tribunal shall consider the application on its own merit. 18. With the above observations and directions, this revision petition is disposed of. No order as to costs.