Bangalore District Court
And His Counsel Is Not Mala Fide vs No.1 To 3 Filed A Memo Alleging That on 1 March, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 1st day of March, 2017.
PRESENT: SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
MISC.PETITION.NO.118/2015
IN
M.V.C.No.6102/2011
M/s. Checkmate Security Services (P) ..... PETITIONER
Ltd.,
A company incorporated under the
provisions of the Companies Act, 1956,
Having its office at;
No.152, 4th Main, 100 Feet Road,
Defence, Colony, Indiranagar,
Bengaluru,
Karnataka - 560 0038.
Represented by its Assistant General
Manager Sqn Ldr M. Balachandran (Rtd.)
(By Sri. Ajay Shankar Rao, Adv.,)
V/s
1. Mr. Alla Bakash (Aka Bakash), ..... RESPONDENTS
S/o. Late Abdul Rasheed,
Aged 28 years.
2. Mrs. Salma,
D/o. Late Abdul Rasheed,
Aged 25 years.
3. Mrs. Armin (Aka Mazeeba),
D/o. Late Abdul Rasheed,
2 MISC.PET.NO.118/2015
(SCCH-7)
Aged 22 years.
4. Mrs. Ayesha,
D/o. Late Abdul Rasheed,
Aged 20 years.
Respondents No.1 to 4 are residing at;
14, Central Street,
Neelasandra,
Bengaluru.
5. New India Assuance Co.,
No.2-B, Unity Building Annex,
Mission Road,
Bengaluru - 27.
(R-1 to R-4 By Smt. Gayathri
Ravishankar, Adv.,)
(R-5 By Sri. C. Shankara Reddy, Adv.,)
ORDER
The Petitioner has filed the present petition as against the Respondents No.1 to 5 under Order 9 Rule 13 of C.P.C., praying to set-aside the Judgment and Award dated 01.06.2013 passed by this Tribunal in M.V.C.No.6102/2011 and to grant it an opportunity to contest the said petition.
2. The brief averments of the Petitioner's case are as follows;
a) It is the Respondent No.2 in the M.V.C.No.6102/2011 filed by the Respondents No.1 to 3 before this Hon'ble Court. The Respondent No.4 is the Insurer of it and is arrayed as the Respondent No.1 in the MVC petition. It appears that, the said M.V.C. petition has been filed on 13.10.2011 claiming 3 MISC.PET.NO.118/2015 (SCCH-7) compensation of INR 15,00,000/- for alleged injuries and thereafter, death sustained by the Respondents' No.1 to 3 mother.
b) It is a reputed Company committed to provide comprehensive solutions for varied physical and electronic security, fire, safety and facility management needs of clients by continuously evolving processes and train professionals towards creating a safe and secure environment. It provides essential services, like, security services to ATMs', replenishment of money to ATM machines, doorstep banking services, security services to Banks and Government Office in Bangalore and other cities.
c) From the year 2002 to 2007, it was operating its Office from No.11, 9th Main Road, 3rd Block, Jayanagar, Opposite Syndicate Bank, Bengaluru - 01. Thereafter, from the year 2010, it shifted its Office and was operating its Office at No.1191, 'Sri Sai Darshan', 13th Main Road, HAL II Stage, Opposite Post Office, Indiranagar, Bangalore - 08 till 02.08.2011. Subsequently, its Company once again shifted its Office from the said mentioned address to the address mentioned in the cause title and is operating from the address mentioned in the cause title from 03.08.2011 to till date.
d) When the matter stood thus, it was suddenly shocked to receive summons from this Hon'ble Court in Ex.No.369/2014 filed by the Respondents No.1 to 3. Thereafter, it engaged its Counsel and appeared in the said matter and procured the certified copy of the Execution Petition. On perusing the Execution petition, it was shocked to see that, there had been a decree passed by this Hon'ble Court in M.V.C.No.6102/2011as against it. It did not have any knowledge of these proceedings. Since it did 4 MISC.PET.NO.118/2015 (SCCH-7) not have a copy of the papers in the M.V.C. petition and other relevant documents produced in the said case, it immediately procured the certified copies of the records in the said petition. Upon obtaining the certified copies and inspecting the papers, it found out that, it had been placed exparte in the said proceedings as no one had appeared on their behalf and Judgment and Decree was passed against it.
e) Upon verification of the petition papers and the order sheet, it is seen that, the Respondents No.1 to 3 had provided the address of it as No.11, 9th Main Road, 3rd Block, Jayanagar, Opposite Syndicate Bank, Bengaluru - 01, which was the older address of it. Further, it is seen that, on 12.01.2012, the summons to it is returned with an endorsement stating 'left address' and the Respondents No.1 to 3 was directed to take fresh steps and the matter was adjourned to 28.01.2012 for the Written Statement of 4th Respondent and for the fresh steps for service of summons to it. Thereafter, it is seen that, on 28.01.2012, without providing its correct address, the Respondents No.1 to 3 filed an application under Order 5 Rule 20 of Code of Civil Procedure, 1908 for substituted service by way of newspaper publication in a newspaper called 'Hosa Diganta' and the said application was allowed on the very same day and the matter was adjourned to 28.02.2012. On 28.02.2012 the Respondents No.1 to 3 filed a memo alleging that, the notice has been issued in 'Hosa Digantha' News-paper dated 10.02.2012 and thereafter, it was called out, absent and the matter appears to have been adjourned to 01.03.2012. On 01.03.2012, the Hon'ble Court noted the absence of it and placed it exparte. As seen above, MVC petition is filed providing the old/wrong address of it. Thereafter, it is seen that, the summons has returned with an endorsement 'left address' and 5 MISC.PET.NO.118/2015 (SCCH-7) the matter was adjourned to 28.01.2015 for taking steps for service of summons. Though the Respondents were to provide its new/correct address, they chose not to do so and simply filed an application for substituted service by way of newspaper publication in a newspaper called 'Hosa Digantha' and the said application was allowed on the very same day and the matter was adjourned to 28.02.2012. On 28.02.2012, the Respondents No.1 to 3 filed a memo alleging that, the notice has been issued in 'Hosa Diganta' newspaper dated 10.02.2012 and thereafter, it was called out, absent and the matter appears to have been adjourned to 01.03.2012, on which day, it was placed exparte. First of all, the address of it mentioned for service is incorrect as stated above and the summons had returned with an address 'left address'. The Respondents No.1 to 3 did not make any effort to find out the correct address of it. Secondly, the said mentioned newspaper is not a widely circulated newspaper. The word daily newspaper appearing in the provision Order 5 Rule 20 of the Code of Civil Procedure, 1908, should be understood to mean not only a newspaper, which is circulated on all days of the week, but, it should be a newspaper of repute, which is published as a morning edition with general acceptance to the satisfaction of the Court since the readership of certain papers even though published daily is an exception to the normal practice of reading a newspaper. The purpose of publication is that, all concerned should see it, but, if published is permitted in certain evening editions and in newspaper, which are not seriously taken, the object and purpose would not be served except for complying with an empty formality, which only leads to multiplicity of proceedings. Hence, it is clear that, the service of summons to it was not sufficient and for this reason, it could not be present and defend the case.
6 MISC.PET.NO.118/2015(SCCH-7)
f) It remained unrepresented in the said petition due to the circumstances narrated above, which were not due to any default or negligence attributable to it. It has a good case on merits in the petition and it has been prevented from defending his cause due to the said referred bonafide reasons.
g) If the said Judgment and Decree, which came to be passed Exparte is not set-aside, it will suffer irreparable loss and injury, which cannot be compensated in terms of money or its worth. If the Judgment and Decree is not set-aside, the cause of justice will suffer, in so far as, it would be made liable to a large and an unwarranted claim.
h) It has not filed any other petition on this cause of action. It having coming to know of the impugned Judgment and Decree only on 30.03.2015, when it produced the copy of the Execution Petition and learnt that, M.V.C. Petition bearing No.6102/2011 was filed.
i) The petition is in time. Hence, prayed to allow this miscellaneous petition.
3. In response to the notices, the Respondents No.1 to 4 have appeared before this Tribunal through their Learned Counsel. But, inspite of giving sufficient opportunities, the Respondents No.1 to 4 have not filed objections.
4. In response to the notice, the Respondent No.5 has appeared before this Tribunal through its Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent No.5 had not filed objections. Later, as per the Order dated 7 MISC.PET.NO.118/2015 (SCCH-7) 01.08.2015 passed on I.A.No.II, the objections filed by the Respondent No.5 is taken on file.
5. The Respondent No.5 inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) At the out-set, the said petition filed by the Petitioner is not maintainable either in law or on facts.
b) The present Misc. Petition is not maintainable before the Hon'ble Court and the same is liable to be rejected on this ground alone.
c) Filing of the present Misc. Petition arises only misrepresentation at the Court and if there are any frauds in the case. Infact, there is no any such misrepresentation or any fraud in M.V.C.No.6102/2011 before this Hon'ble Court. Hence, on this ground also the present petition is liable to be rejected.
d) The Petitioner has not made out any case for setting aside the Judgment and Award passed by this Hon'ble Court. The reasons assigned in the petition as if they are not aware of the award is neither responsible nor amounts to sufficient cause to set-aside the Judgment and Award after lapse of about two years. It is only due to the in action of the Petitioner as they are well aware that, they have no case on merits, they have allowed the case to be awarded. Hence, prayed to dismiss the petition with exemplary costs.
6. In order to prove its case, the Petitioner has examined its authorized signatory as P.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.P.1 to 8 MISC.PET.NO.118/2015 (SCCH-7) Ex.P.12. On the other hand, the Respondent No.5 has not adduced any evidence on its behalf.
7. Heard the arguments.
8. In support of the submission, the Learned Counsel appearing for the Petitioner Sri. Ajay Shankar Rao has placed reliance upon the decisions reported in,
i) ILR 2007 KAR 3912 (Sri Venkatesh V/s. Sri. P. Subbaiah and Another), wherein, it is observed that, CODE OF CIVIL PROCEDURE, 1908 -
ORDER IX RULE 13-setting aside decree exparte against Defendant - petition under - dismissal of appealed against under Order 43 Rule 1(d) - improper procedure adapted for service of summons in the original suit - allowing the application filed under Order V Rule 20(1A) - Ordering paper publication - HELD, If paper publication is permitted in certain evening editions and in newspapers which are not seriously taken, the object and purpose would not be served except for complying with an empty formality which only leads to multiplicity of proceedings- FURTHER HELD, the word daily newspaper appearing in the provision should be understood to mean not only a newspaper which is circulated on all days of the week but, it should be a newspaper of repute which is published as a morning edition with general acceptance to the satisfaction of the Court - ON FACTS, HELD, the news paper in which it is published is not in consonance with the contents of Order V Rule 20(1A) and that, there was a procedural lapse which has resulted in lack of knowledge of date of hearing - Judgment and decree is set aside and direction to limit 9 MISC.PET.NO.118/2015 (SCCH-7) the enquiry only to the extent of the right available to the appellant.
ii) AIR 1998 KERALA 360 (Jamu Kurian V/s. Siby and Another), wherein, it is observed that, Divorce Act (4 of 1869), S.50 (Proviso) Service of petition - powers of Court -
Service by paper publication - Can be ordered when Court is satisfied that, personal service not possible.
Family Courts (Kerala) Rules, R.12.
Civil P.C. (5 of 1908) O.5, R.20.
It cannot be said that, the Court dealing with the proceedings under the Divorce Act, has no power to order service of notice by publication. But, the caution that, is made is that, the service should be effected by personal service and only when the Court is satisfied that, personal service is not possible, then, service by publication should be ordered. Furthermore the family Courts have been expressly given the power to order substituted service under R.12 of the Family Courts (Kerala) Rules. Hence, such a procedure would be available for the proceedings under the Divorce Act in the Family Court.
iii) AIR 2000 Supreme Court 1221 (G.P. Srivastava V/s. R.K. Raizada and Others), wherein, it is observed that, Civil P.C. (5 of 1908), O.9 R.13 - Setting aside exparte eviction decree - "Sufficient cause" for non-appearance - Newphew of counsel died in road accident on date of hearing - appellant himself being sick and not in town on account of employment and 10 MISC.PET.NO.118/2015 (SCCH-7) illness - Fact that, medical certificate was obtained by appellant from private and not from a Government Doctor - No ground to reject plea of sickness - Absence of Appellant and his counsel is not mala fide or intentional - Particularly when, reasonable defence is put by appellant and application is made within statutory period
- Litigation prolonged for about 17 years - To meet ends of justice appellant allowed to prove his case within reasonable time.
9. Now, the Points that arise for my consideration are as follows;
POINTS
1. Whether the Petitioner has made out sufficient and reasonable grounds to set-aside the Judgment and Award dated 01.06.2013 passed in M.V.C.No.6102/2011 and restore the said petition, as prayed for?
2. What Order?
10. My answers to the above Points are as follows;
Point No.1 : In the Negative,
Point No.2 : As per final Order,
for the following;
REASONS
11. POINT NO.1 :- The Petitioner has filed the present
petition as against the Respondents No.1 to 5 under Order 9 Rule 13 of C.P.C., praying to set-aside the Judgment and Award dated 11 MISC.PET.NO.118/2015 (SCCH-7) 01.06.2013 passed by this Tribunal in M.V.C..No.6102/2011 and to grant it an opportunity to contest the said petition.
12. The P.W.1 has stated in his examination-in-chief that, he is an authorized signatory of the Petitioner and aware of the facts and circumstances of the present case and he is competent and authorized to file this affidavit. The Petitioner has produced Ex.P.12 Authorisation Letter. It is mentioned in Ex.P.12 Authorization Letter that, the P.W.1 has been authorized by the Petitioner to sign all pleadings, including, plaint copy, affidavit, vakalathnama, caveat, etc., to be filed in the present petition before this Tribunal. Nowhere it is mentioned in Ex.P.12 Authorization Letter by its authorized signatory of the Petitioner that, the P.W.1 is also authorized to give evidence on its behalf in the present petition. In this regard, the P.W.1 in his cross- examination has clearly admitted that, Ex.P.12 Authorization Letter authorized him to file the present petition only. From this material evidence, it is made crystal clear that, the P.W.1 has been authorized by the Petitioner through Ex.P.12 Authorization Letter only to sign the pleadings, affidavit, vakalathnama, caveat, etc., in the present petition and not authorized him to give evidence on behalf of the Petitioner in the present petition to consider its case, which is filed as against the Respondents. Further, the P.W.1 is not a signatory of the petition. The P.W.1 has voluntarily stated in his cross-examination that, the Petitioner Company has given Power of Attorney. To consider the same, no authenticated document is produced by the Petitioner. In this regard, he has further clearly stated that, he has not produced the said Power of Attorney or authorization. Hence, the evidence of P.W.1 cannot be looked into for consideration of the case made out by the Petitioner in the present petition as against the Respondents.
12 MISC.PET.NO.118/2015(SCCH-7)
13. It is pertinent to note here that, even the Petitioner has not examined any witness on its behalf in the present petition. Further, the Petitioner has not examined the signatory of the petition to consider its case as against the Respondents. From this, it appears that, no acceptable material evidence is forthcoming on behalf of the Petitioner to consider its specific case as against the Respondents in the present petition.
14. It is not in dispute that, the Respondents No.1 to 4 had filed a claim petition in M.V.C.No.6102/2011 before this Tribunal as against the Respondent No.5 and the Petitioner, which was disposed off on merits on 01.06.2013 by holding that, the present Petitioner is liable to pay total compensation of Rupees 3,77,000/- with interest at the rate of 6% p.a., from the date of petition till payment to the Respondents No.1 to 4 and it was partly allowed with costs as against the present Petitioner and it is dismissed as against the Respondent No.5 on the grounds that, at the time of accident, the driver of the offending vehicle was not having driving licence and as such, the Respondent No.5, who was the Insurance Company is exonerated from indemnifying the Petitioner and the Petitioner was a registered owner of the offending Jeep, who is liable to pay compensation and interest to the Respondents No.1 to 4. In this regard, the Petitioner has produced Ex.P.1 Certified copy of Petition of M.V.C.No.6102/2011, Ex.P.2 Certified copy of Order Sheet of Ex. Petition No.369/2014, Ex.P.3 Certified copy of Petition of Ex. Petition No.369/2014, Ex.P.4 Certified copy of Judgment dated 01.06.2013 passed in M.V.C.No.6102/2011, Ex.P.5 Certified copy of Award dated 01.06.2013 passed in M.V.C.No.6102/2011 and Ex.P.6 Certified copy of Order Sheet of M.V.C.No.6102/2011.
13 MISC.PET.NO.118/2015(SCCH-7)
15. It is also not in dispute that, based on the said Judgment and Award dated 01.06.2013 passed by this Tribunal in M.V.C.No.6102/2011, the Respondents No.1 to 4 have filed Execution Case No.369/2014 as against the Petitioner, which is pending for consideration and disposal before this Tribunal, wherein, the Respondents No.1 to 4 have claimed Rupees 4,30,780/- from the Petitioner. In this regard, the Petitioner has produced Ex.P.2 Certified copy of Order Sheet of Ex. Petition No.369/2014 and Ex.P.3 Certified copy of Petition of Ex. Petition No.369/2014.
16. It is also not in dispute that, the said M.V.C.No.6102/2011 was filed by the Respondents No.1 to 4 as against the Petitioner and the Respondent No.5 on 13.10.2011.
17. Now by filing the present petition, the Petitioner has prayed to set-aside the said Judgment and Award dated 01.06.2013 passed by this Tribunal in M.V.C.No.6102/2011 and to grant an opportunity to contest the said petition, based on the grounds that, "From the year 2002 to 2007, it was operating its Office from No.11, 9th Main Road, 3rd Block, Jayanagar, Opposite Syndicate Bank, Bengaluru - 01. Thereafter, from the year 2010, it shifted its Office and was operating its Office at No.1191, 'Sri Sai Darshan', 13th Main Road, HAL II Stage, Opposite Post Office, Indiranagar, Bangalore - 08 till 02.08.2011. Subsequently, its Company once again shifted its Office from the said mentioned address to the address mentioned in the cause title and is operating from the address mentioned 14 MISC.PET.NO.118/2015 (SCCH-7) in the cause title from 03.08.2011 to till date. When the matter stood thus, it was suddenly shocked to receive summons from this Hon'ble Court in Ex.No.369/2014 filed by the Respondents No.1 to 3. Thereafter, it engaged its Counsel and appeared in the said matter and procured the certified copy of the Execution Petition. On perusing the Execution petition, it was shocked to see that, there had been a decree passed by this Hon'ble Court in M.V.C.No.6102/2011as against it. It did not have any knowledge of these proceedings. Since it did not have a copy of the papers in the M.V.C. petition and other relevant documents produced in the said case, it immediately procured the certified copies of the records in the said petition. Upon obtaining the certified copies and inspecting the papers, it found out that, it had been placed exparte in the said proceedings as no one had appeared on their behalf and Judgment and Decree was passed against it. Upon verification of the petition papers and the order sheet, it is seen that, the Respondents No.1 to 3 had provided the address of it as No.11, 9th Main Road, 3rd Block, Jayanagar, Opposite Syndicate Bank, Bengaluru - 01, which was the older address of it. Further, it is seen that, on 12.01.2012, the summons to it is returned with an endorsement stating 'left address' and the Respondents No.1 to 3 was directed to take fresh steps and the matter was adjourned to 28.01.2012 for the Written Statement of 4th Respondent and for the fresh steps for service of summons to it. Thereafter, it is seen that, on 28.01.2012, without providing its correct address, the Respondents No.1 to 3 filed an application under Order 5 Rule 20 of Code of Civil Procedure, 1908 15 MISC.PET.NO.118/2015 (SCCH-7) for substituted service by way of newspaper publication in a newspaper called 'Hosa Diganta' and the said application was allowed on the very same day and the matter was adjourned to 28.02.2012. On 28.02.2012 the Respondents No.1 to 3 filed a memo alleging that, the notice has been issued in 'Hosa Digantha' News-paper dated 10.02.2012 and thereafter, it was called out, absent and the matter appears to have been adjourned to 01.03.2012. On 01.03.2012, the Hon'ble Court noted the absence of it and placed it exparte. As seen above, MVC petition is filed providing the old/wrong address of it. Thereafter, it is seen that, the summons has returned with an endorsement 'left address' and the matter was adjourned to 28.01.2015 for taking steps for service of summons. Though the Respondents were to provide its new/correct address, they chose not to do so and simply filed an application for substituted service by way of newspaper publication in a newspaper called 'Hosa Digantha' and the said application was allowed on the very same day and the matter was adjourned to 28.02.2012. On 28.02.2012, the Respondents No.1 to 3 filed a memo alleging that, the notice has been issued in 'Hosa Diganta' newspaper dated 10.02.2012 and thereafter, it was called out, absent and the matter appears to have been adjourned to 01.03.2012, on which day, it was placed exparte. First of all, the address of it mentioned for service is incorrect as stated above and the summons had returned with an address 'left address'. The Respondents No.1 to 3 did not make any effort to find out the correct address of it. Secondly, the said mentioned newspaper is not a widely circulated 16 MISC.PET.NO.118/2015 (SCCH-7) newspaper. The word daily newspaper appearing in the provision Order 5 Rule 20 of the Code of Civil Procedure, 1908, should be understood to mean not only a newspaper, which is circulated on all days of the week, but, it should be a newspaper of repute, which is published as a morning edition with general acceptance to the satisfaction of the Court since the readership of certain papers even though published daily is an exception to the normal practice of reading a newspaper. The purpose of publication is that, all concerned should see it, but, if published is permitted in certain evening editions and in newspaper, which are not seriously taken, the object and purpose would not be served except for complying with an empty formality, which only leads to multiplicity of proceedings. Hence, it is clear that, the service of summons to it was not sufficient and for this reason, it could not be present and defend the case. It remained unrepresented in the said petition due to the circumstances narrated above, which were not due to any default or negligence attributable to it. It has a good case on merits in the petition and it has been prevented from defending his cause due to the said referred bonafide reasons. If the said Judgment and Decree, which came to be passed Exparte is not set-aside, it will suffer irreparable loss and injury, which cannot be compensated in terms of money or its worth. If the Judgment and Decree is not set-aside, the cause of justice will suffer, in so far as, it would be made liable to a large and an unwarranted claim."
17 MISC.PET.NO.118/2015(SCCH-7)
18. To consider its case, the Petitioner has produced Ex.P.7 Attested copy of Registration Certificate dated 01.02.2010 along with Annexure, Ex.P.8 Attested copy of License issued by Police Department dated 01.04.2011, Ex.P.9 Attested copy of Letter dated 25.09.2013, Ex.P.10 Attested copy of Letter dated 21.09.2011 and Ex.P.11 Attested copy of Letter dated 21.09.2011.
19. The above said documents, which are marked at Ex.P.7 to Ex.P.11 clearly disclosed that, the Petitioner was not residing and carrying on its business in the address shown in the cause title of the petition in M.V.C.No.6102/2011, i.e., Checkmate Services Pvt. Ltd., (DM 2686605), No.11, 9th Main Road, 3rd Block, Jayanagar, Opp. Syndicate Bank, Bengaluru - 560 001. Further, the present Respondents No.1 to 4 had taken steps as against the Petitioner in M.V.C.No.6102/2011 through paper publication in the newspaper Hosa Digantha. According to the Petitioner, the said newspaper Hosa Digantha was not widely circulated in the locality of the said address. Further, according to the Petitioner, earlier notice issued to it by the Respondents No.1 to 4 was returned with an endorsement "left address".
20. But, based on the said grounds urged by the Petitioner in the present petition and the Petitioner was not residing in the given address as shown in the cause title of the petition in M.V.C.No.6102/2011 and the notice was issued to the Petitioner through paper publication by publishing in the newspaper of Hosa Digantha, which was not widely circulated in the said locality, the Judgment and Award dated 01.06.2013 passed by this Tribunal in M.V.C.No.6102/2011 cannot be restored, as, based on the address shown in Ex.R.2 Insurance Policy, which is marked in M.V.C.No.6102/2011, which was produced by the Respondent 18 MISC.PET.NO.118/2015 (SCCH-7) No.5 in the said petition, the Respondents No.1 to 4, who are the claimants in the said petition, had shown the address of the Petitioner in M.V.C.No.6102/2011 and the said Ex.R.2 Insurance Policy was only the document available to the Respondents No.1 to 4 at that point of time to know the address of the Petitioner. Further, it is not the case of the Petitioner that, it has intimated its changed address to the Insurance Company, i.e., Respondent No.5 and inspite of that, the Respondent No.5 has not changed its address and as such, the mistake also committed by the Respondent No.5. Further, there is nearly one year nine months delay in filing the present petition by the Petitioner, which has not been properly explained by adducing acceptable material evidence. More so, this Tribunal has already observed and come to the conclusion that, the evidence of P.W.1 cannot be looked into for consideration of the case made out by the Petitioner in the present petition to consider its case as he has not authorized to give evidence on behalf of the present Petitioner in the present petition. Further, the Respondents No.1 to 4, who were claimants in M.V.C.No.6102/2011 are the third parties to the Respondent No.5 and the Petitioner. Further, in the Judgment and Award passed in M.V.C.No.6102/2011, this Tribunal has shifted the liability to pay compensation on the Petitioner. From this, it appears that, only to avoid its liability to pay compensation to the Respondents No.1 to 4 in Ex. Petition No.369/2014, the Petitioner has filed the present petition.
21. Under the above said facts and circumstances as well as the reasons given, it can be safely held that, there is no acceptable material evidence is forthcoming on behalf of the Petitioner to consider its case as against the Respondents in the present petition and the Petitioner has not made out sufficient and 19 MISC.PET.NO.118/2015 (SCCH-7) reasonable grounds to set-aside the Judgment and Award dated 01.03.2013 passed by this Tribunal in M.V.C.No.6102/2011 and to permit it to contest the said petition. Hence, the present petition filed by the Petitioner is liable to be rejected. In view of the above said reasons, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Petitioner are not applicable to the present facts and circumstances of the case on hand. Accordingly, I answered Point No.1 in the Negative.
22. POINT NO.2 :- For the aforesaid reasons, I proceed to pass the following;
ORDER The Petition filed by the Petitioner under Order 9 Rule 13 of C.P.C. is hereby rejected.
No order as to costs.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 1st day of March, 2017.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. N. Nanjappa
20 MISC.PET.NO.118/2015
(SCCH-7)
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : Certified copy of Petition of
M.V.C.No.6102/2011
Ex.P.2 : Certified copy of Order Sheet of
Ex.Pet.No.369/2014
Ex.P.3 : Certified copy of Petition of Ex. Pet.
No.369/2014
Ex.P.4 : Certified copy of Judgment dated
01.06.2013 passed in
M.V.C.No.6102/2011
Ex.P.5 : Certified copy of Award dated
01.06.2013 passed in
M.V.C.No.6102/2011
Ex.P.6 : Certified copy of Order Sheet of
M.V.C.No.6102/2011
Ex.P.7 : True attested copy of Registration
Certificate dated 01.02.2010 along
with annexure
Ex.P.8 : True attested copy of License issued
by Police Department dated
01.04.2011
Ex.P.9 : True attested copy of Letter dated
25.09.2013
Ex.P.10 : True attested copy of Letter dated
21.09.2013
Ex.P.11 : True attested copy of Letter dated
21.09.2013
Ex.P.12 : Authorization Letter
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.