National Insurance Co. Ltd. vs Deepa Arya And Ors.
2005 Latest Caselaw 691 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule. With the consent of the learned counsel for the parties, the petition is taken up today for final hearing.

2. This petition under Article 227 of the Constitution of India challenges the orders of the Motor Accidents Claim Tribunal (hereinafter referred to as the `Tribunal') dated 5th December 2000, 20th October, 2000 and the Award dated 17th March, 1999 and arises from a fatal accident which occurred in the year 1985 in which accident, the respondent No. 1, Smt. Deepa Arya had lost her 32 years old husband. The claim petition was filed before the MACT by the widow, Deepa Rai, respondent No. 1 along with her then minor daughter, Manisha, the respondent No. 2 in this Court. The final award was passed by the Tribunal on 17th March, 1999. On 11th May, 1999 the Tribunal was moved by the petitioner insurance company by an application under Order IX Rule 13 CPC for setting aside the ex-parte Award dated 17th March, 1999 on the ground that the petitioner company's liability was limited to the extent of Rs.50,000/- and the balance liability of Rs. 2,22,000/- could not have been imposed upon it by the impugned award dated 17th March, 1999. On 5th December, 2000 while dismissing the application under Order IX CPC, the Tribunal noted that the claim was of the year 1985 and an earlier application under Order IX for setting aside the ex-parte order and proceedings against the petitioner/Insurance company had already been dismissed for default on 25th May, 1995 that is four years prior to the present application.

3. The learned counsel for the petitioner, Ms. S.D. Raman has attempted to touch on the merits of the case which can only be done if the order dismissing the Insurance Company's plea for setting aside the award is set aside. The Tribunal noted that the conduct of the petitioner Company which has been attributed by the learned counsel appearing for the petitioner in the matter to the negligence of the erstwhile counsel who did not indicate the dates of various hearings to the petitioner. It is also pointed out that the owner of the vehicle, respondent No. 8 in these proceedings remained unrepresented before the Tribunal. The tribunal has given a reasoned order noticing the indifference of the petitioner company in proceedings before it and rightly noted that the accident occurred in 1985 and the award was passed only in 1999 and the application under Order IX Rule 13 CPC for setting aside the ex-parte award was filed only on 11th May, 1999 in spite of an earlier application under Order IX for setting aside the ex-parte order and proceedings against the petitioner/Insurance company having been dismissed in default on 25th May, 1995, i.e., four years ago. Earlier also another application for setting aside the ex-parte award had been dismissed for default on 20th October, 2000.

4. The Tribunal noted on 25th May, 1995 that none appeared for the petitioner/Insurance Company in an application under Order IX Rule 7 CPC for setting aside the ex-parte proceedings then pending against the respondents, which was dismissed for default. It has also noted on 5th December, 2000 that a separate application has been moved under Order xviii Rule 17 CPC read with Section 151 CPC on behalf of the petitioner insurance company and that application remained adjourned in spite of the reply having been filed by the claimants to the said application. The Tribunal has also noted on 5th December, 2000 that an application under Order IX Rule 13 CPC was dismissed in default on 20th October, 2000 and the present application has been moved under Order IX for setting aside the ex-parte order dated 20th October, 2000. Since the petitioner's application for setting aside the ex-parte proceedings under Order IX Rule 7 already stood dismissed on 25th May, 1995 and the application for setting aside the ex-parte award stood dismissed on 20th October, 2000, the petitioner/insurance company cannot be permitted to resurrect its case by now seeking to have the said ex-parte award set aside. The indifference of the petitioner company that had even led to an application for setting aside the ex-parte proceedings being dismissed in default in 1995 therefore makes it clear that the petitioner was not entitled to have the application filed to set aside the award said to be ex-parte against it. It is the petitioner company alone which is responsible for having an award ex-parte against it and the clock cannot be put back merely because the insurance company now wants to assert its rights at this belated stage. I cannot lose sight of the fact that the respondent No. 1, Deepa Arya was widowed and respondent No. 2, Manisha was orphaned in 1985 and even today the respondent No. 1 is not sure whether she will reap the benefit of the award dated 17th March, 1999. In this view of the matter no cause for interference has been made out with the order dismissing the application seeking to set aside the Award dated 17th March, 1999 as well as the Order 5th December, 2000 under Order IX Rule 13 CPC and the present case does not warrant interference in the discretionary jurisdiction.

5. Accordingly, none of these reasons warrant interference. Consequently the petition is dismissed. Since the petition is dismissed by affirming the order of the Tribunal dismissing the application filed by the petitioner under Order IX Rule 13, this order should not be taken as expressing any views on the issues which arose from the claim of limited liability sought to be raised by the petitioner company and such question is kept open for decision in an appropriate case. Since the respondents 3 to 6 have filed their respective affidavits in this Court disowning themselves of any interest in the awarded amount and have prayed that the awarded amount along with interest, if any, accrued be released in favor of the respondents 1 & 2, the said respondents 1 & 2 are permitted to withdraw the sum of Rs. 6,51,535/-(minus Rs.1 lacs, if already withdrawn by the respondents 1 & 2 as ordered to be withdrawn by this Court's order dated 14th February, 2001), lying deposited in this Court along with interest, if any, accrued thereon on or before 30th June, 2005 through their counsel. However, the petitioner's counsel prays that the petitioner may be given liberty to file the recovery proceedings against the respondent No. 8 pursuant to the dismissal of their application under Order IX Rule 13 CPC today. It will be open to the petitioner to resort the recovery proceedings against the respondent No. 8, Devender Nath arising from the award of the Tribunal dated 17th March, 1999 and such suit shall be decided on merits.

6. The petition stands dismissed and disposed of accordingly.