Karnataka High Court
Sri.S.Ramesh vs Sri.V.Srinivasa on 21 December, 2018
Author: B.M.Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.6654 OF 2014(CPC)
BETWEEN:
SRI.S.RAMESH
SON OF K. V. MAHALINGAHA BHAT
AGED ABOUT 44 YEARS
RESIDING AT NO. 4148, 1ST FLOOR,
3RD MAIN, B BLOCK
2ND STAGE, RAJAJINAGAR
BANGALORE-560010
... APPELLANT
(BY SRI. MURTHY M. V., ADVOCATE)
AND:
1. SRI.V.SRINIVASA
SON OF K. VENKATACHALAM, MAJOR
RESIDING AT NO. 81, 1ST CROSS
4TH MAIN ROAD, K K LAYOUT
PAPAREDDY PALYA
MALLATHAHALLI
BAGALORE - 560 021.
2. UNITED INDIA INSURANCE CO. LTD.
REPRESETNED BY ITS REGIONAL MANAGER
NO. 25, SHANKAR NARAYANA BUILDING
M G ROAD, BANGALORE-560001.
2
PRESENTLY AT:
4TH AND 5TH FLOOR
KRUSHI BHAVAN
HUDSON CIRCLE, BANGALORE.
... RESPONDENTS
(BY SRI. B. C. SEETHARAMA RAO, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43
RULE 1(C) OF CPC, AGAINST THE ORDER DATED 22.04.2014, PASSED
ON MISC NO.258 OF 2012 ON THE FILE OF THE VII ADDITIONAL SMALL
CAUSES JUDGE, BANGALORE, DISMISSING THE PETITION FILED
UNDER ORDER IX RULE 4 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has impugned the order dated 22.4.2014 in Misc.No.258/2012 on the file of the Court of Small Causes, Bengaluru - (for short, 'learned Small Causes Court'). The learned Small Causes Court by the impugned order has dismissed the appellant's petition filed under Order IX Rule 4 of the Code of Civil Procedure.
2. The genesis for the present proceeding is that the claimant/appellant suffered injuries in a road accident on 20.12.2006 while he was driving his motorcycle. The appellant presented a claim petition under Section 166 of the 3 Motor Vehicles Act, 1988, asserting that the accident was caused by the driver of the goods matador vehicle owned by the respondent No.1 and insured with the respondent No.2. The claim petition was allowed by the judgment and award dated 20.09.2008 awarding compensation of Rs.3,03,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. However, insofar as obligation to pay the amount awarded, the learned MACT concluded that the claimant/appellant had failed to establish that the offending vehicle was insured with the insurance company and therefore, the insurance company would not be liable. The respondent No. 1 - the owner of the offending vehicle, who had not participated in the proceedings, filed proceedings under Order IX Rule 13 of the Code of Civil Procedure in Misc.No.144/2010 after service of notice of the execution proceedings initiated by the appellant in Execution Case No.1080/2009.
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3. The respondent No.1 contended in Misc.No.144/2010 that the offending vehicle, which was subject matter of a Hire Purchase Agreement, was indeed insured with the respondent No.2 for the period between 1.10.2006 and 30.09.2007 as the premium for such insurance covered was paid to M/s. TATA Motors Financial Limited, who held Hire Purchase Agreement. However, there was an error in mentioning the engine and chassis number in the policy.
4. The learned Small Causes Court, while allowing the aforesaid petition in Misc.No.144/2010 by the order dated 23.11.2011 setting aside the judgment and award dated 20.09.2008, and permitting the respondent No.1 to contest the claim petition, only ordered the office to put up the records in MVC No.1134/2007 without indicating the first date of hearing. After the petition was restored with the old registration number as per the order in Misc.No.144/2010, M/s. Prabhu and Srinivas Associates filed power for the 5 respondent No.1, and counsel for the respondent No.2, who was on record, sought permission to continue to represent respondent No.2. Insofar as the appellant, the Court ordered notice to the appellant and his counsel. The petition was directed to be called on 12.1.2012. Meanwhile, the office noted that the notice issued to the appellant was returned unserved as 'door locked'. The Assistant Registrar concerned re-issued notice to the appellant on 09.02.2012. Thus, there was a deviation because of this order of the Assistant Registrar concerned, and the case was not called before the learned MACT on 12.1.2012. Later, the notice issued to the appellant's counsel was also returned 'unserved' on the ground that the counsel had left the address. The learned MACT, while noticing these, dismissed the claim petition on 22.02.2012 concluding that the appellant could not succeed in the claim petition and his claim petition was a fake case.
5. Aggrieved by this order, and asserting that he was not served and he had not received notice of the petition in MVC 6 No.1134/2007 after its restoration, the appellant filed proceeding under Order IX Rule 4 of Code of Civil Procedure in Misc.No.258/2012, which is dismissed by the impugned order. The appellant examined himself as well as his advocate as PWs.1 and 2 respectively. They reiterated the petition assertions, which were essential that neither the appellant nor his advocate was served with the notice of hearing of the restored petition. However, the learned Small Causes Court rejected the petition concluding that the appellant had knowledge of the date of hearing of the restored petition but had kept quite. The learned Small Causes Court, in arriving at this conclusion, relied upon purported admitted conversation between the appellant and his counsel.
6. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2. Insofar as respondent No.1, it is noticed that notice to the respondent No.1 is dispensed with at the risk of the appellant on the submission made in that regard.
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7. The learned counsel for the appellant contended that the learned Small Causes Court has not considered the circumstances under which the restored petition was dismissed. The learned Small Causes Court, at the first instance after restoration of the petition, had adjourned the matter for appearance of the appellant on 12.1.2012 issuing notice of the restored petition, and thereafter the notice was not served on the appellant, or his counsel. Even the Assistant Registrar concerned had recorded that notice sent to the appellant was returned 'unserved' on the ground that door was locked and notice sent to his counsel was also returned as the counsel had "left the address". Nevertheless, the learned Small Causes Court rejected the petition while rendering a finding that the petition was a fake case and the appellant would not succeed in the claim petition. Therefore, the impugned order is irregular and perverse. 8
8. The learned counsel also contended that the conversation that is adverted to by the learned Small Causes Court relates to the conversation between the appellant and his counsel during the pendency of the previous petition and therefore, could not be relevant post the restoration of the petition. The learned counsel for the respondent No.1 is unable to controvert the circumstances as borne out from the record as regards the issuance of notice of the restored petition.
9. The crucial questions are, whether the appellant was served with the notice of the restored petition and whether the appellant had stayed away from the proceedings deliberately. If it is indisputable that the appellant was not served with notice of the restored petition, and neither his counsel was served, it cannot be reasonably concluded that the appellant had notice of the restored petition, especially when there is no material on record to reasonably infer the same. Further, any conversation between the appellant and 9 his counsel prior to restoration of the petition, would not indicate knowledge of the restored petition or the date of hearing subsequent to restoration. Furthermore, it would not be strange for a party to await service of notice when the first hearing date is not indicated while restoring the petition.
10. In the aforesaid circumstances, this Court is of the considered opinion that the impugned order, which is rendered without considering the above circumstances, is irregular and calls for interference. Therefore, the following order:
a) The appeal is allowed.
b) The claim petition in MVC No.1134/2007 is restored to the file of the learned MACT.
c) The appellant and respondent No.2 shall stand at notice of the first hearing date before the learned MACT on 29.1.2019 without further notice.10
d) As notice to respondent No.1 is dispensed with, fresh notice shall be issued to the respondent No.1 and the appellant shall pay/file requisites for issuance of such notice to the respondent No.1 without any default.
SD/-
JUDGE SA