Andhra HC (Pre-Telangana)
Magadri Satyanarayana vs B. Jayaramarao And Ors. on 24 January, 1987
Equivalent citations: [1990]68COMPCAS411(AP)
JUDGMENT K. Ramaswamy, J.
1. The appellant is the claimant. The Tribunal below dismissed the original petition against all the respondents, viz., the first respondent, owner of the vehicle, the driver,the second respondent and the insurance company the third respondent. In the appeal, unfortunately, respondents No. 1 and 2, i.e., the owner and the driver have not been impleaded starting that they are not necessary parties, as they had remained ex parte in the lower court, Notice is taken out only to the third respondent insurance company which was served. When I pointed out that a decree cannot be considered on merits in the absence of the insured, the first respondent, owner of the vehicle, learned counsel for the appellant placed reliance on Order 41, rule 14(4), Civil Procedure Code, and contended that since they had remained ex parte in the Tribunal below, it is not necessary to send notice to them. Therefore, the appeal can be considered on merits as against the insurance company and the matter be remanded to the Tribunal for consideration afresh. I find no force in this contention. Order 41,rule 14(4), Civil Procedure Code, postulates that "notwithstanding any thing to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the appellant court, unless he has appeared and filed an address for the service in the court of first instance or has appeared in the appeal." This clearly postulates that if the person is impleaded for the first time, then notice is necessary. Otherwise, if the persons are impleaded in the Tribunal below in the incidental proceedings, viz., interlocutory orders, notice need not be taken out by operation of sub-rule (4), rule 14 of Order 41, Civil Procedure Code. The language used is a non-obstante clause. Sub-rule (1) of rule 14 of Order 41 postulates in mandatory language thus : 'Notice shall be sent by the appellate court to the court from whose decree the appeal is preferred and shall be served on the respondent or on his pleader in the appellate court in the manner provided for the service on a defendant of a summon to appear and answer; and all the provisions applicable to such summons, and proceedings with reference to the service three of, shall apply to the service of such notice. "There by sub-rule (1) of rule 14 of Order 41, Civil Procedure Code, mandates service of notice on the respondent through the court below unless it is excluded by operation of sub-rule (4) of rule 14 of Order 41, Civil Procedure Code. As stated earlier, sub-rule (4) is used in the incidental proceedings, viz., interlocutory orders, but not in the main appeal. There by, though the owner remained ex parte in the Tribunal below, still the claimants or the person seeking relief in this court, the appellant, is not absolved of its/his duty to take out notice to the affected parties, the owner or the insurance company and impleading them. Since the claimant has not taken out any has been expressly stating that the owner is not a necessary party, this court cannot go into the merits as against the insurance company since the liability of the insurance company is joint and several with the owner. Unless there is a decree and a finding binding on the insured, viz., the owner, the insurance company cannot be made liable. Under these circumstances, I hold that the absence of notice militates against the appellant for asking any relief on merits. The appeal is dismissed as the order of the tribunal has become final as against the owner, but, in the circumstances, without costs.