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Himachal Pradesh High Court · body

2016 DIGILAW 301 (HP)

Pawan Kumar Khosla v. Chhindo

2016-03-19

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. This judgment shall dispose of both the petitions arising out of an order similar in nature. 2. Petitioner Pawan Kumar, herein was respondent No.1 in MAC Petition No.26 of 2006 and MAC Petition No.27 of 2006 filed by the respondents herein (claimants-petitioners before Learned Motor Accident Claims Tribunal below) for award of compensation on the death of one Rakesh Kumar and Som Nath @ Somi in Motor Vehicles accident. The petitioner is owner of the vehicle involved in the accident. The petitioner, despite service failed to put in appearance before learned Motor Accident Claims Tribunal, hence was proceeded against ex-parte in both the Claim Petitions. The Claim Petitions were tried in his absence and the awards Annexure-P1 in the Claim Petitions were passed. The claimants-respondents have been awarded compensation together with interest. The awards have to be satisfied by the petitioner. Of course, it is the insurer-respondent, who has to deposit the award amount first with a right to recover the same from the owner of the vehicle i.e. petitioner. 3. On coming to know that ex-parte award has been passed by learned Motor Accident Claims Tribunal, the petitioner has filed separate applications in both the petitions under Order 9 Rule 13 of the Code of Civil Procedure with a prayer to set-aside the ex-parte award. Since the applications were time barred, therefore, separate applications under Section 5 of the Limitation Act have also been filed with a prayer to condone the delay so occurred. It is in the application under Order 9 Rule 13 of the Code of Civil Procedure and under Section 5 of the Limitation Act, the learned Motor Accident Claims Tribunal below has passed the following order on 22.7.2015:- “This application for condonation of delay in moving application for setting aside ex-parte award will be considered subject to deposit of awarded amount. Be deposited within two weeks, failing which, this petition will be deemed to have been dismissed. Put up on 5.8.2015.” 4. The orders are Annexure P-6 and Annexure P-3 to these petitions. 5. Mr. N.K. Thakur, learned Sr. Advocate, assisted by Mr. Be deposited within two weeks, failing which, this petition will be deemed to have been dismissed. Put up on 5.8.2015.” 4. The orders are Annexure P-6 and Annexure P-3 to these petitions. 5. Mr. N.K. Thakur, learned Sr. Advocate, assisted by Mr. Rahul Verma, Advocate, has canvassed that the stage to impose condition qua the deposit of the awarded amount or a portion thereof could have come only after the application under Section 5 of the Limitation Act considered and allowed and the application under Order 9 Rule 13 CPC taken on board for consideration. Mr. Thakur, learned Sr. Advocate, has placed reliance on the judgment of Apex Court to support the arguments so addressed. 6. It is seen that the deposit of the awarded amount is a condition precedent to hear the application filed under Section 5 of the Limitation Act for condonation of delay. Whether any such condition could have been imposed is a question brought to this Court in these petitions. On behalf of the petitioners, reliance has been placed on the judgment of the Apex Court in M/s GMG Engineering Industries & others Vs. M/s ISSA Green Power Solution & others; AIR 2015 SC 2675 . This judgment reads as follows:- 8. It is well settled that the expression ‘sufficient cause’ is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bona-fide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence. 9. While exercising the discretion for setting aside the ex-parte decrees or condoning the delay in filing the application to set aside the ex-parte decrees, the Court is competent to direct the defendants to pay a portion of the decretal amount or the cost. The true test is to see whether the applicant has acted with due diligence. 9. While exercising the discretion for setting aside the ex-parte decrees or condoning the delay in filing the application to set aside the ex-parte decrees, the Court is competent to direct the defendants to pay a portion of the decretal amount or the cost. In Tea Auction Limited v. Grace Hill Tea Industry and another, (2006) 12 S.C.C. 104 : (2006) 9 SCALE 223 , this Court has held as under: “15…A discretionary jurisdiction has been conferred upon the Court passing an order for setting aside an ex-parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also on other attending facts and circumstances. It may also consider the question as to whether the defendant should be put on terms. The court, indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, the appellate Court would have power to interfere therewith…….” 10. In Vijay Kumar Madan and Others v. R.N. Gupta Technical Education Society and others, (2002) 4 S.C.C. 30 : ( AIR 2002 SC 2082 ), this Court has held as under: “8. Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7. ………the court cannot exercise its power to put the defendant-applicant on such terms as may have the effect of prejudging the controversy involved in the suit and virtually decreeing the suit though ex-parte order has been set aside or to put the parties on such terms as may be too onerous………The condition in the order of the trial court having been set aside by the High Court, we are inclined to sustain the order of the High Court but subject to certain modification. In our opinion the High Court was justified in setting aside the condition imposed by the trial court in its order which was too onerous, also vague, uncertain and suffering form want of clarity. The order of the High Court to the extent of setting aside the ex-parte proceedings and directing the expeditious trial of the suit has to be sustained as it serves the ends of justice……..” 11. In the present case, while the trial court has exercised the discretion to condone the delay in filing the applications to set aside the ex-parte decrees, in our view, the trial court should not have imposed such an unreasonable and onerous condition of depositing the entire suit claim of Rs. 1,50,00,000/- and Rs. 10,00,000/- respectively in the suits when the issues are yet to be decided on merits. While considering the revision, the High Court should have kept in view that the parties are yet to go for trial and the appellants ought to have been afforded the opportunity to contest the suits on merits. When the S.L.Ps came up for admission on 1.8.2013, this Court passed the conditional order that subject to deposit a sum of Rs. 50,00,000/- before the trial court, notice shall be issued to the respondents. In compliance with the order dated 1.8.2013, the appellants have deposited Rs. 50,00,000/- before the trial Court. Since the appellants have satisfactorily explained the reasons for the delay and with a view to provide an opportunity to the appellants to contest the suit, the impugned order is liable to be set aside. 7. On behalf of respondent-insurer, it is urged that the condition to deposit the awarded amount can even be imposed while considering the application under Section 5 of Limitation Act. Also that the learned Motor Accident Claims Tribunal below has not committed any illegality and irregularity while directing the petitioner-insured to deposit the entire awarded amount before the application under Section 5 of the Limitation Act is taken up for consideration. I am afraid that such a plea is available to respondent-insurer that too, at a stage when application under Order 9 Rule 13 is not on board being time barred. As a matter of fact, the point in issue is squarely covered by the judgment of the Apex Court in M/s GMG Engineering Industries and others Vs. I am afraid that such a plea is available to respondent-insurer that too, at a stage when application under Order 9 Rule 13 is not on board being time barred. As a matter of fact, the point in issue is squarely covered by the judgment of the Apex Court in M/s GMG Engineering Industries and others Vs. M/s ISSA green power solution and others (supra); because in that case also the condition to deposit the entire decretal amount was imposed at a stage when the application under Section 5 of the Limitation Act was yet to be allowed and the application under Order 9 Rule 13 CPC filed with the prayer to set aside the ex-parte decree taken on board. There is no logic in imposing such a condition at a stage when delay as occurred in filing the application for setting aside the ex-parte award has not yet been condoned. The question that the ex-parte award is to be set-aside or not will arise only when the application filed for setting aside the same is taken on board. In that eventuality also, such an unreasonable condition to deposit the entire awarded amount cannot be imposed in view of the ratio of the judgment of the Apex Court supra. Of course, the petitioner-insurer can be directed to deposit some reasonable amount. Therefore, the impugned order is not only harsh and oppressive but illegal also. The same is accordingly quashed and set-aside. There shall be a direction to Learned Motor Accident Claims Tribunal to consider the application under Section 5 of the Limitation Act first and in the event of sufficient cause is found to have shown by the petitioner-insured the delay condoned and the application under Order 9 Rule 13 CPC filed with a prayer to set-aside ex-parte award is taken on board. The question qua deposit of the awarded amount or a portion thereof by the petitioner-insured be considered in the light of the observations hereinabove and also the ratio of the judgment of the Apex Court in its judgment rendered in M/s GMG Engineering and others (supra). 8. Both these petitions stand allowed and accordingly disposed of. An authenticated copy of this judgment be sent to learned Motor Accident Claims Tribunal for compliance.