Bangalore District Court
Mr. Syed Samiulla vs Smt.Chandrakala on 2 April, 2019
BEFORE THE MOTOR ACCIDENTS CLAIMS
TRIBUNAL & V ADDL. JUDGE
Court of Small Causes, Mayo Hall Unit, Bengaluru.
(SCCH.20)
Dated this the 2nd day of April, 2019
Present: Smt. A.G.SHILPA, B.A., LL.B.,
V Addl. Small Causes Judge &
XXIV A.C.M.M., Member, M.A.C.T.,
Bengaluru.
Misc. No.201/2017
in
MVC No.4866/2007
PETITIONERS: Mr. Syed Samiulla,
Aged about 45 years
R/a. No.2BC-303,
1st Main Road, 2nd Cross,
East of NGEF layout,
Kasturi Nagar
Bangalore -560 016.
(By Pleader Sri.ASR, Adv.)
-Vs-
RESPONDENT: 1. Smt.Chandrakala,
Aged about 34 years
W/o late Shantharaja
2. Domini
D/o. late Shantaraja
Aged about 15 years
SCCH-20 2 Misc 201/2017
Since minor rep. by his mother and
natural guardian the respondent
No.1 herein,
Both are residing at
Nagamma compound
Kondanahalli, RM Nagar,
Bangalore -560 016.
3. The New India Assurance Co.
Ltd.,
5 Floor, Vokkaligara Bhavan,
th
Hudson Circle,
Bangalore - 560 027.
(R-1&R-2:By Pleader Sri.MDN,Adv.)
(R-3 : By Pleader Sri SR, Adv.)
*****
JUDGMENT
The Petitioner filed this petition U/O 9 Rule 13 r/w Sec. 151 of CPC praying to this tribunal to set aside the exparte judgement and award dtd: 4/1/2013 passed in MVC No: 4866/2017.
2. Brief facts of petition is as follows:
It is submitted that the respondent No.1 & 2 filed petition for compensation for the death of Mr Shantharaj S/o Nagarajappa, in a road traffic accident occurred on SCCH-20 3 Misc 201/2017 4/6/2007 and it was their case but deceased was driving on Autorickshaw and lorry had parked in the middle of the road without indicator due to which the auto rickshaw driver dashed against the iron rod of the lorry and suffered grievous injuries and he died on the way to hospital.
It is further submitted that the tribunal issued notice to the respondent therein and petitioner as 1st respondent herein was recorded in the order sheet as served with the notice. The Insurance company contested his file written statement and this tribunal was pleased to allow the petition in part and granted compensation of Rs.4,50,000/- with interest at 6% p.a. fastening the liability on petitioner and based on evidence held the respondent insurance company was not liable in view of contending that vehicle involved in the accident has no authorization to ply the vehicle.
It is further submitted that the respondents 1 & 2 filed execution 2556/2016 before this tribunal to execute SCCH-20 4 Misc 201/2017 the judgment and award, accordingly they took substitute service by way of affixture and same was stated to be served on the petitioner, thereby executing court issued attachment warrant of moveable to the petitioner address and the Dhr along with court officials approached on 7/7/2017 , at the office of petitioner and threatening that he has collected Rs.50,000/- from him. Only then the petitioner got to know the exparte judgment and award passed by this tribunal in MVC 4866/2007.
It is submitted that petitioner was not served with notice in MVC proceedings and he was not at all residing in the address shown in the cause title. The respondents by providing wrong address and colluding with postal authorities got the notice shara "as served on him". In execution proceedings the cause notice issued through RPAD to the same address returned unserved and respondent 1 & 2 are taken substitute service by way of affixture .SCCH-20 5 Misc 201/2017
It is further submitted as on the date of accident the insurance and permit for the vehicle involved was valid and it was inforced, but the authorization fee to the State Government was not paid , that itself does not absolve the insurance company to escape from liability. Further it is not fundamental violation of insurance policy. Therefore, it is prayed to allow the petition.
3. Hereafter the parties will be referred by their ranks in this petition.
4. After registration of the present petition, notice has been issued to the respondent No.1 to 3 and the same was served on them. They have appeared before the Tribunal and Respondent No.1 & 2 filed their objection. The 3rd respondent also filed objection through his counsel.
5. The Brief facts of the objection filed by Respondent No.1 & 2 are as follows:
They have categorically denied the petition averment s and took contention that notice was served upon the petition by RPAD to the given address to the cause title SCCH-20 6 Misc 201/2017 in MVC proceedings. It is the same address mentioned insurance policy and RC book of petitioners truck , vehicle involved in this accident. Even other wise the insurer of the petition vehicle also sent a notice with respect to involvement of the vehicle in accident after receiving notice from this tribunal in MVC proceedings No: 4866/2007, though petitioner received it he did not reply nor represented before the tribunal in original proceedings. Therefore, it is prayed to dismiss this petition.
6. The 3rd Respondent filed written objection specifically denying the petition averments and submitted that the notice was issued by the insurance company, after filing of claim petition in MVC No: 4866/2007 against the petition which was served upon the petitioner but he did not reply to their notice , which clearly goes to show that the petitioner was aware of the MVC proceedings. Sufficient grounds are not made out the set SCCH-20 7 Misc 201/2017 aside the judgment and award . Therefore, it is prayed to dismiss the petition with cost.
07. In order to prove the case of petitioner, he got examined as P.W.1 and got marked document at Ex.P.1. The respondents 1 to 3 did not adduced any oral or documentary evidence.
08. Heard the arguments on both side.
09. In view of the above pleadings and objections, the following points that arise for my consideration:
1. Whether the petitioner has made out reasonable grounds to set aside the judgment and award dated: 4/1/2013 in MVC No: 4866/2007?
2. What order?
10. My answer to the above points are as under:
Point No.1 In the Affirmative
Point No.2 As per final order
for the following:
SCCH-20 8 Misc 201/2017
REASONS
11. Point No.1:- As already observed above, the petitioner filed this petition to set aside the judgment and award dtd: 4/1/2012 in MVC No: 4866/2007.
12. The petitioner as PW1 filed his evidence affidavit in lieu of examination in chief reiterating petition averments. The Ex.P.1 is the Policy, Ex.P.2 Absolute sale deed, Ex.P.3 Election Identity card for address proof and Ex.P.4 notarized copy of Registration Certificate of establishment for business.
13. The petitioner in MVC proceedings neither appeared nor filed his written statement. The order sheet on the file of MVC 4866/2007 till last date is not produced. However, it is beyond dispute that in original proceedings the notice was issued to the petitioner and the RPAD returned served and acknowledged upon the petitioner. However, the petitioner contention is address given in MVC proceedings was wrong and notice got to SCCH-20 9 Misc 201/2017 be served on wrong address. On perusal of Ex.P.1 Policy , the petitioner has entered his address as "No.228, East of NGEF layout, Kasturi Nagara, 1st Cross, 2nd Main, Bangalore - 560016 and office address 5th floor, Vakaligara Bhavana, Hudson Circle, Bangalore - 560027. As per Ex.P.2 Sale Deed, the address of the petitioner is Sayed Samiulla S/o Syed Mahaboob, R/o No: 2, HM-143- 2nd Main Road, Kasturi Nagara, Bangalore. Ex.P.3 Election Identity Card issued in respect to his address No.2, BC, 304, 3rd E Main road, NGEF Layout, Kasturi Nagara, 2nd Cross, FCI Gowdown, Vijanpura, Bangalore
- 560 016. As per Ex.P.4 the office address of petitioner is No.28, RM Nagara Main, Opposite to TATA Steel Yard, DV Nagar Post, Bangalore - 560 016.
14. The aforesaid address denote one and the same , even otherwise the sale deed dtd: 15/2/2007 is earlier to the proposal and declaration made for the policy to the vehicle involved in the accident. The proposal and declaration in vehicle policy is Ex.P.1 dtd: SCCH-20 10 Misc 201/2017
19/2/2007 . The insurance company issued policy to the vehicle involved to the same address of petitioner in MVC case. It is an admitted fact that petitioner himself provided the address shown in the policy. The petitioner did not provide evidence, the entire order sheet and proceedings papers in MVC.
15.However, in the Execution No: 2256/2016 the petitioner was issued with cause notice to the same address, it returned unserved as no such person residing in address. The notice was again taken by substitute service by way of affixture on the ground petitioner was avoiding appearance before execution court. Subsequent to the affixture, petitioner being absent on the date fixed for his hearing, attachment warrant of moveable was issued against him to the same address. The petitioner is found to have signed on the back of the warrant undertaking to make payment and deposit before the SCCH-20 11 Misc 201/2017 tribunal. The said warrants are issued upon the petitioner to the same address.
16. The judgment and award against the petitioner is one of an exparte. It is also pertinent to note is the petitioner in Ex.No: 2256/2016 had filed an application u/o 21 Rule 29 of CPC praying to stay execution proceedings pending final decision of Misc.No: 201/2017 before the court seeking for restoration of petition in MVC No: 4866/2007. After hearing the petitioner in execution this tribunal observed that the petitioner has right to take defense in MVC proceedings, but at the same time to do equity and see the 1st respondent, a 34 year old women, she lost her husband in an road traffic accident on 4/6/2007, definitely she lost life security and if execution proceedings is stayed she may suffer vagrancy and under order 21 Rule 26 of CPC, it was found appropriate to direct the petitioner to furnish security by depositing the entire amount to the court in order to stay SCCH-20 12 Misc 201/2017 the execution. Thereby, an order was passed on 29/7/2017 in execution- 2256/2016 allowing the application of the petitioner under order 21 Rule 29 of CPC and directed the petitioner to deposit an amount of Rs.4,07,000/- in the above case. The petitioner until today did not comply with the order, he did not deposit the required security amount in the above case or execution. Therefore, it becomes clear from the conduct of the petitioner that intention behind, he is aggrieved by an order of exparte judgment and award, he is not willing to make payment and require the tribunal to hear him for determining the liability, whatsoever to pay compensation to the respondent 1 & 2. The petition is filed now to contest as pleaded but Susceptibility to pay compensation to 1st and 2nd respondent. The judgment and award in MVC No: 4866/2007 dtd: 4/1/2013 held petitioner was solely liable to pay compensation amount on the ground that vehicle involved was used for commercial purpose without permit and he violated the SCCH-20 13 Misc 201/2017 terms and conditions of the policy. Accident occurred on 4/6/2007 and authorization to vehicle was valid from 13/3/2006 to 16/3/2007. As seen from the evidence , the petitioner had paid permit fee and penalty after the accident. Thereby, this tribunal held vehicle had no permit at the time of accident and petitioner cannot be permitted to ply the vehicle without paying authorization fee and penalty. Even the fee and penalty is paid after the accident it cannot be given an retrospective effect Therefore, petitioner was held solely liable to pay compensation amount.
17. Admittedly in this petition he claim that authorization fee for permit was not paid to State Government as on the date of accident. The petitioner learned counsel argue that the Regional Transport Office representative examined in MVC 4866/2007 had in fact deposed that vehicle involved had national permit registered at Nagaland on 16/3/2007 and petitioner was authorized to ply the vehicle at six more states including SCCH-20 14 Misc 201/2017 Karnataka. The authorization expired on 16/3/2007. On 7/6/2007 the petitioner paid tax and penalty and updated period of authorization from: 14/3/2007 to 13/3/2008 and it was valid up to 16/3/2011.
18. Therefore, reopening of the MVC 4866/2007 would be for determination of, liability either upon petitioner or Insurance company to pay the compensation to respondents 1 & 2. When an exparte judgment and award is passed in MVC 4866/2007 dtd:
4/1/2013 , after recording the evidence of 1st and 2nd respondent, the petitioner should have shown sufficient cause with reference to the date on which he was supposed to be present. The petitioner who claimed shown address in the cause title of petition in MVC was wrong but after substitute service of affixture in Execution 2256/2016 and subsequently issuing attachment of warrant movables against him to the same address appeared before court by filing this SCCH-20 15 Misc 201/2017 petition goes to show his conduct of susceptibility to pay compensation.
The petitioner relied upon the decision of our Hon'ble Supreme Court between Oriental Insurance Co Ltd V/s. Pooja Sharma and Others, MAC.APP.836/2010 dtd: 14/8/2015 held Vehicle was driven by the person other than permit holder cannot be said to be user of transport vehicle for purpose not allowed by permit under which the vehicle was used, the claim of the insurance company has been examined in the light of above refereed legal position , I am of the considered view that the breach said to be proved against respondent 4 & 5 does not fall in the category of fundamental breach of terms and conditions, so as to entitled the insurance company to have recovery rights in the matter.
This extract is taken from National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357 at page 523, para 11 to 13 SCCH-20 16 Misc 201/2017
11. As was observed in the said case the statutory defenses which are available to the insurer to contest the claim are confined to those provided in sub-section (2) of Section
149.
12. The High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed on a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. The High Court was, therefore, not justified in holding the insurer liable.
13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be SCCH-20 17 Misc 201/2017 proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct SCCH-20 18 Misc 201/2017 realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.
Therefore, it is incumbent to allow the petitioner to contest , in the MVC No: 4866/2007. Otherwise he will be condemned unheard causing him injustice. However, for not being diligent for appear before tribunal within time, he must be saddled with cost of Rs.3000/- and it shall be paid to the legal representative deceased i.e., Respondent No.1 & 2. Therefore, I answer point No.1 in AFFIRMATIVE.
Point No.2: In view of the findings on Point No.1, I proceed to pass the following: SCCH-20 19 Misc 201/2017
ORDER This Miscellaneous petition filed by the petitioner under order 9 Rule 13 is hereby allowed with cost of Rs.3000/-, and it shall be paid to Respondent No.1.
The judgment and award dated: 4/1/2013 passed in MVC 4866/2007 is hereby set aside and restored.
The Office shall put up the case file of MVC 4866/2007 before the Court on 15/4/2019.
(Dictated to the Stenographer directly on Computer, then pronounced by me in the open Court on this the 2nd day of April, 2019).
(A.G.SHILPA) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bangalore.
SCCH-20 20 Misc 201/2017ANNEXURE Witnesses examined for petitioners:
P.W.1 Syed Samiulla Documents marked for petitioners:
Ex.P.1 Certified copy of the Insurance copy with the terms and conditions Ex.P.2 Certified copy of the absolute sale deed.
Ex.P.3 Notarized copy of ID proof
Ex.P.4 Notarized copy of registration
certificate
Witnesses examined for respondent:
-Nil-
Documents marked for respondent: Ex,R.1 Policy (A.G.SHILPA) V ASCJ & Member, MACT, Court of Small Causes, Mayo Hall Unit, Bangalore.SCCH-20 21 Misc 201/2017
02.04.2019 Judgment pronounced in the open court vide separate order :
ORDER This Miscellaneous petition filed by the petitioner under order 9 Rule 13 is hereby allowed with cost of Rs.3000/-, and it shall be paid to Respondent No.1.
The judgment and award dated:
4/1/2013 passed in MVC 4866/2007 is hereby set aside and restored.
The Office shall put up the case file of MVC 4866/2007 before the Court on 15/4/2019.
V ASCJ & 24th ACMM SCCH-20 22 Misc 201/2017 .