Andhra Pradesh High Court - Amravati
M/S. Oriental Insurance Company ... vs V. Thangaraj on 15 December, 2021
Bench: Kongara Vijaya Lakshmi
1
KVL, J
CRP No.903 of 2020 &
CMA No.24 of 2021
HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
Civil Revision Petition No.903 of 2020
and
Civil Miscellaneous Appeal No.24 of 2021
COMMON ORDER:
i) CRP No.903 of 2020 is filed the petitioner-Oriental Insurance
Company Limited, aggrieved by the dismissal order passed in
IA No.178 of 2019 dated 29.10.2019 in MV OP No.152 of 2018
on the file of the IX Additional District Judge, Chittoor, which
was filed to condone the delay of 110 days in filing the
petition to set aside the ex-parte decree dated 18.02.2019.
ii) CMA No.24 of 2021 is filed appellant-Oriental Insurance
Company Limited, aggrieved by the dismissal order passed in
IA No.203 of 2019 dated 29.10.2019 in the same OP, which was
filed to set aside the ex-parte decree dated 18.02.2019
As both the civil revision petition and the CMA arise between the
same parties in MV OP No.152 of 2018, both the matters are being disposed
of by this common judgment.
2. The revision petitioner/appellant is the Oriental Insurance
Company, who is the 2nd respondent in MV OP No.152 of 2018. Case of the
revision petitioner/appellant is that, the 1st respondent-claimant filed the
above OP seeking compensation and the matter was posted to 13.11.2018
for filing of their written statement; due to non receipt of the investigation
report and also manual search of the policy details of the lorry bearing
No.AP 27 TT 0559, they could not file the written statement within time in
the above OP before the Tribunal; due to non-filing of the written
statement, the Insurance Company was set ex-parte on 13.11.2018 and
after recording the evidence of the claimant, the Tribunal passed ex-parte
decree on 18.02.2019 against the Insurance Company; on coming to know of
the same, the insurance company filed IA No.178 of 2019 under Section 5 of
the Limitation Act to condone the delay of 110 days in filing the petition to
KVL, J
CRP No.903 of 2020 &
CMA No.24 of 2021
set aside the ex-parte decree dated 18.02.2019 and they also filed another
petition in IA No.203 of 2019 under Order IX Rule 13 CPC to set aside the ex-
parte decree; the Tribunal dismissed both the petitions on 29.10.2019.
Hence, the present revision and the appeal.
Mrs. A. Jayanthi, learned standing counsel for the Oriental Insurance
Company submits that the Tribunal erred in dismissing both the petitions
i.e., petition under Section 5 of the Limitation Act to condone delay in
filing the petition to set aside the ex-parte decree and the petition under
Order IX Rule 13 CPC to set aside the ex-parte decree, without giving any
opportunity to the Insurance Company. She further submits that the
Tribunal posted the matter on 13.11.2018 for filing of the written
statement and on that day, as they could not file the same, the insurance
company was set ex-parte. She further submits that as the policy
particulars were not clear, after completion of the enquiry of the files
manually, it came to know that the insurance coverage is not there to the
subject crime vehicle because the cheque given towards premium was
dishonoured and subsequently the policy was cancelled and the same was
informed by the Insurance Company vide its letter dated 06.12.2016 to the
insured and that as on the date of accident, the policy was not in existence.
She further submits that due to the above enquiry, the insurance company
could not file their written statement within 90 days and in the meanwhile,
the Tribunal passed the ex-parte decree against the Insurance Company.
She further submits that as there is prima-facie case in favour of the
revision petitioner/appellant, the insurance company filed the condone
delay petition and the petition to set aside the ex-parte decree, but the
Tribunal erred in dismissing both the petitions and hence, revision and the
appeal have to be allowed.
KVL, J
CRP No.903 of 2020 &
CMA No.24 of 2021
A perusal of the proceeding sheets in the above matters show that on
09.09.2021 this Court permitted the revision petitioner/appellant to serve
personal notice on the respondents by RPAD and file proof of service in the
Registry. Accordingly, learned counsel for the revision petitioner/appellant
filed memo vide USSR No.50872 of 2021 stating the personal notice dated
10.09.2021 sent to the respondents were served on 15.09.2021 and also
filed original postal receipts and postal acknowledgment cards received
from the respondents. In spite of the service of the notices, none appears
for the respondents and there is no representation on their behalf.
A perusal of the impugned order in IA No.178 of 2019 shows that the
counsel for the insurance company received summons on 09.08.2018 and in
spite of granting more than 90 days for filing written statement, they failed
to file the same and hence, the insurance company was set ex-parte.
Contention of the learned standing counsel for the Insurance Company is
that MV OP No.152 of 2018 was posted to 13.11.2018 for filing written
statement and on that day, as the insurance company failed to file their
written statement, insurance company was set ex-parte and subsequently,
after recording the evidence of the claimant, the Tribunal passed the ex-
parte decree on 18.02.2019 against the insurance company. It shows that
only one adjournment was given to the Insurance Company for filing the
written statement. The contention of the learned standing counsel for the
revision petitioner/appellant is that the insurance company made enquiry
of the files manually and came to know that there is no insurance coverage
to the crime vehicle because the cheque given towards premium was
dishonoured and subsequently the policy was cancelled and the said fact
was also intimated to the insured through registered post. Admittedly, the
owner of the vehicle has not filed her written statement by contesting the
matter and she was also set ex-parte in the said OP. Thus it is clear that the
Tribunal has not given sufficient opportunity to the Insurance Company to
KVL, J
CRP No.903 of 2020 &
CMA No.24 of 2021
put-forth their defence by filing their written statement along with
supporting documents and also to adduce evidence.
In view of the facts and circumstances, both the civil revision
petition and the civil miscellaneous appeal are allowed by setting aside the
impugned orders dated 29.10.2019 passed in IA Nos.178 and 203 of 2019
respectively, in MV OP No.152 of 2018 on the file of the MACT cum IX
Additional District Judge, Chittoor and accordingly, the said IAs are
allowed. No order as to costs. Miscellaneous petitions if any pending in both
the revision petition and the appeal shall stand closed.
__________________________
KONGARA VIJAYA LAKSHMI, J
Date: .12.2021
BSS
KVL, J
CRP No.903 of 2020 &
CMA No.24 of 2021
HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
Civil Revision Petition No.903 of 2020
and
Civil Miscellaneous Appeal No.24 of 2021
Date: .12.2021
BSS
