Karnataka High Court
Smt Nirmala vs Iffco-Tokkio General Insurance Co. Ltd on 30 June, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.41652/2019 (GM-AC)
BETWEEN:
1. SMT. NIRMALA
W/O RAJAPPA
AGED ABOUT 54 YEARS
2. SRI.RAJAPPA
SINCE DEAD BY HIS LR'S
2(A) SMT. DHANALAKSHMI
D/O LATE RAJAPPA
W/O CHANDRAPPA
AGED ABOUT 47 YEARS
R/AT SULUBELE ROAD
NEAR BRIGHT SCHOOL
VIVEKANDANAGARA
HOSKOTE-560 114.
2(B) SMT. AMARAVATHI
D/O LATE RAJAPPA
W/O RAMACHANDRAN
AGED ABOUT 45 YEARS
R/AT NO.1/345
UDDANAPALLI, KRISHNAGIRI
TAMIL NADU -635119.
2(C) R RAMAMURTHY
S/O LATE RAJAPPA
AGED ABOUT 43 YEARS
2
2(D) R NAGARAJ
D/O LATE RAJAPPA
AGED ABOUT 40 YEARS
2(E) R DEVARAJU
D/O LATE RAJAPPA
AGED ABOUT 37 YEARS
LRS 2(C) TO 2 (E) ARE R/AT
KAMMAVARIPETE
HOSKOTE-562 114
BENGALURU RURAL DISTRICT-562114.
...PETITIONERS
(BY SRI CHANDAN S RAO, ADV.)
AND:
1. IFFCO-TOKKIO GENERAL INSURANCE CO.
LTD.,
STRATEGIL BUSINESS UNIT,
3RD FLOOR, 3RD BLOCK, KSCMS BLDG.,
NO.8, CUNNINGHAM ROAD,
BENGALURU-560 052.
2. L.M.KRISHNA
S/O L.D.MUNIYAPPA,
AGED ABOUT 27 YEARS,
R/AT NO.23, LAKKONDAHALLY,
HOSKOTE TALUK-562 114.
3. SMT.VENKATALAKSHMAMMA
AGED ABOUT 57 YEARS
4. SRI.VENKATESH
AGED ABOUT 39 YEARS
R/AT NO.1/38, ALLURE VILLAGE,
PARANDAPALLI POST,
3
HOSUR TALUK,
KRISHNAGIRI DISTRICT
TAMIL NADU-635 109
...RESPONDENTS
(BY SRI PRADEEP B, ADV. FOR R1
SRI D NAGARAJA REDDY, ADV. FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 20.08.2019 PASSED BY XXII ADDL SCJ IN
MVC 5218/16 (SCCH-24) THEREBY ALLOWING I.A.NO.5
(PRODUCED AS ANNEXURE-M) AND AWARD COSTS OF THIS
PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court under Article 227 of the Constitution of India, praying to set aside the order dated 20.08.2019 passed by the XXII Additional Small Causes Judge in MVC No.5218/2016 allowing I.A.No.5 filed by respondent Nos.3 and 4 to get themselves impleaded as additional respondents in MVC No.5218/2016.
2. Heard learned counsel Sri.Chandan S Rao for petitioners and learned counsel Sri.Nagaraja Reddy, for respondent Nos.3 and 4 as well as Sri.B.Pradeep, learned 4 counsel for respondent No.1. Perused the writ petition papers.
3. Petitioners claiming to be the sister and brother-in-law of deceased Honnurappa have filed this petition praying to set aside the order dated 20.08.2019 passed by XXII Additional Small Cause Judge in MVC No.5218/16, allowing I.A.No.5 (produced as Annexure-M). During the pendency of the writ petition, the second petitioner who is the brother-in-law of deceased Honnurappa died and his legal representatives have come on record.
4. Petitioner No.1 and her husband being sister and brother-in-law of deceased Honnurappa filed MVC No.5218/2016 claiming compensation for the accidental death of deceased Honnurappa. Respondent Nos.3 and 4 claiming to be wife and son of deceased Honnurappa also filed MVC No.2748/2016.
5. A memo dated 06.06.2018 was filed in MVC No.2748/2016 to withdraw the claim petition. Accordingly, 5 by order dated 06.06.2018, MVC No.2748/2016 was dismissed as withdrawn. Thereafter, an application to recall the order dated 06.06.2018 in MVC No.2748/2016 was filed. Subsequently, the said application was dismissed as not pressed, with liberty to move or file impleading application in MVC No.5218/2016.
6. O.S.No.95/1993 for partition was filed by one Muniswamappa, the father of first petitioner as well as deceased Honnurappa. The said suit came to be decreed on 31.01.2005. An application for impleading by respondent Nos.3 and 4 was filed in FDP No.20/2005 and the said application was allowed. Challenging the said order allowing the impleading application, the petitioners herein approached this Court in W.P.Nos.75-76/2013. This Court, by order dated 22.01.2014 allowed the writ petition and remanded the matter to the FDP Court, with a direction to permit the petitioners herein to file objections to the L.R. application and thereafter to determine whether respondent Nos.3 and 4 are 6 the legal representatives of deceased Honnurappa or not. In the said FDP also, memo dated 11.06.2018 was filed by respondent Nos.3 and 4 to withdraw the impleading application. Accordingly, by order dated 11.06.2018 impleading application in FDP was dismissed as withdrawn. It is submitted that the application is filed to recall the said order, which is pending even today.
7. Learned counsel for the petitioners would submit that respondent Nos.3 and 4 filed impleading application to get themselves impleaded as additional respondents in MVC No.5218/2016. The said application was filed under Order I Rule 10(2) of CPC stating that the petitioners are utter strangers to the deceased Honnurappa whereas respondent Nos.3 and 4 are wife and son of deceased Honnurappa. In sum and substance, they filed an application to come on record, claiming that they are legal representatives of deceased Honnurappa. The petitioners herein filed objections to the said I.A. The MVC Court, on consideration of the 7 application as well as objection, under the impugned order allowed I.A.No.5 filed for impleading and permitted respondent Nos.3 and 4 herein to come on record as respondent Nos.3 and 4 in MVC No.5218/2016, which is impugned in this writ petition.
8. Learned counsel for the petitioners would submit that the order of the trial Court allowing the impleading application filed by respondent Nos.3 and 4 is wholly erroneous and perverse. He submits that when respondent Nos.3 and 4 withdrew MVC No.2748/2016 as well as application to come on record as legal representatives in FDP No.20/2005, the MVC Court ought not to have allowed respondent Nos.3 and 4 to come on record under Order I Rule 10(2) of CPC. Learned counsel would contend that the application is filed invoking Order I Rule 10(2) of CPC and that if there is dispute on the application as to who are the legal representatives, the Tribunal ought to have followed the procedure prescribed under Order XXII Rule 5(2). No enquiry 8 as contemplated, to find out the genuineness of claim of respondent Nos.3 and 4 was conducted by the trial Court. Learned counsel would submit that respondent Nos.3 and 4 have failed to establish that they are legal representatives of deceased Honnurappa. It is submitted that to make unlawful gain, respondent Nos.3 and 4 are claiming that they are legal representatives of deceased Honnurappa.
9. Per contra, Sri.Nagaraja Reddy, learned counsel for respondent Nos.3 and 4 submits that MVC Court rightly allowed the application of respondent Nos.3 and 4 to come on record as additional respondents being legal representatives of deceased Honnurappa. Learned counsel would point out that application filed in MVC No.2748/2016 was dismissed as not pressed, with liberty to file impleading application in MVC No.5218/2016. Thus, he submits that the trial Court rightly allowed the application filed under Order I Rule 10(2) of CPC permitting respondent Nos.3 and 4 to come on record. Further, learned counsel pointed out that since the trial 9 Court had allowed the impleading application to come on record as additional respondents, an opportunity would be provided to respondent Nos.3 and 4 to prove their relationship with the deceased Honnurappa and also that an opportunity would be provided to the petitioners to cross- examine respondent Nos.3 and 4. Thus, he prays for dismissal of the writ petition.
10. The facts are not in dispute. The petitioners as well as respondent Nos.3 and 4 initially filed two separate MVCs i.e. MVC No.5218/2016 and MVC No.2748/2016 respectively claiming compensation for the accidental death of deceased Honnurappa. MVC No.2748/2016 filed by respondent Nos.3 and 4 was dismissed as not pressed, with liberty to file impleading application in MVC No.5218/2016. Admittedly, in FDP No.20/2005 arising from the decree dated 31.01.2005 in O.S.No.93/1995, the application of respondent Nos.3 and 4 to come on record as legal representatives of deceased Honnurappa was dismissed as not pressed.
10
11. The application of respondent Nos.3 and 4 in MVC No.5218/2016 even though is under Order I Rule 10(2) of CPC, it is to be considered as application under Order XXII Rule 5 of CPC, since impleading is sought on the ground that they are the legal representatives of deceased Honnurappa. The Tribunal has to first determine the question as to whether respondent Nos.3 and 4 are legal representatives of the deceased Honnurappa.
12. Order XXII Rule 5 of CPC provides for determination of question as to legal representatives. No such enquiry is held before allowing I.A. under Order I Rule 10(2) of CPC filed in MVC No.5218/2016. This Court, in W.P.Nos.75-76/2013 disposed of on 22.01.2014 arising from FDP between the petitioners and respondents has categorically held that when a question arises as to whether any person is or is not legal representative of a deceased, that question shall be determined by the Court. In the instant case, the petitioners herein have seriously disputed the claim of respondent Nos.3 11 and 4 that they are legal representatives of deceased Honnurappa. When there is serious dispute about the claim of the impleading applicants i.e., legal representatives of deceased Honnurappa, the trial Court ought to have conducted enquiry to find out or to determine the question of legal representatives. Having failed to determine the question of legal representatives as claimed by respondent Nos.3 and 4, the impugned order is liable to be set aside.
13. Hence the following order:
(a) The writ petition is allowed in part.
(b) The impugned order dated 20.08.2019 in MVC No.5218/2016 on I.A.No.5 is set aside and the matter is remanded to the trial Court to reconsider afresh I.A.No.5 and to determine the question as to whether respondent Nos.3 and 4 are legal representatives of deceased Honnurappa.
(c) The application shall be considered and decided as expeditiously as possible, not later than four months from the 12 date of receipt of a copy of this order, with the co-operation of the parties to the proceedings.
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