Delhi High Court
The Oriental Insurance Co. Ltd. vs Baijnath Dass & Ors. on 6 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 3rd January, 2011
Pronounced on: 6th February, 2012
+ MAC.APP. 529/2005
THE ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pratik Datta, Adv.
versus
BAIJNATH DASS & ORS. .... Respondents
Through: Mr. B. P. Sharma, Adv. for R-4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
C.M. APPL. No.10963/2012 (for recalling of Order dated
20.04.2007) & C.M. APPL. No.10964/2012 (for stay)
1. The Applicant (the fourth Respondent) prays for setting aside of
the order dated 20.04.2007 and for rehearing of the Appeal on
merits on the ground that the Applicant was getting treatment
for brain tumor in Delhi and could not receive any notice issued
by this Court. He was unaware of the Court proceedings. It is
averred that in another matter (relating to this very accident in
respect of other Claimants) a first Appeal was filed by the
Applicant and the Appellant appeared as a Respondent in the
Appeals No.113 and 121/2005. It is stated that the grounds
taken by the Appellant in MAC. APP. No.259/2005 (the Appeal
in which the C.M. APPL. has been filed) are afterthought.
These have not been substantiated by any evidence. It is stated
that the Applicant could not appear before the Court on account
of non-receipt of notice by him and due to shifting of his
residence to Delhi in order to obtain treatment for the brain
tumor.
2. The Application is opposed by the Respondent (the Appellant in
Appeal No.529/2005 decided on 20.04.2007). It is denied that
the Applicant was not served with the notice of Appeal. It is
averred that even if it is assumed that the Applicant received
any treatment, the same was only in the year 2010, as could be
gathered from the documents filed along with the Application.
It is pleaded that no cause has been shown for the Applicant's
absence after service of notice of the Appeal and on the date of
hearing when the order dated 20.04.2007 came to be passed.
3. A Claim Petition bearing No.320/2003 titled Baijnath Das &
Anr. v. Jai Dev Singh & Ors. came to be decided by the Claims
Tribunal by an order dated 19.03.2005 whereby a compensation
of ` 5,02,500/- was awarded in favour of the Claimants
(Respondents No.1 and 2 in MAC. APP. No.529/2005). One of
the grounds taken by the Non-Applicant (the Oriental Insurance
Co. Ltd.) was that the Cover Note in respect of the vehicle
No.UP-06-3233 was issued after the accident and date of
coverage was anti dated by its Development Officer. Action
was taken against the Development Officer in accordance with
the General Insurance (CDA) Rules, 1979 and a penalty of
reduction in basic pay to the lowest stage in the time scale of
pay and recovery of ` 1,00,000/- was imposed upon him. Since,
this defence was not taken into consideration by Claims
Tribunal, the Appeal (MAC. APP. No.529/2005) was filed for
setting aside of the order dated 19.03.2005 passed by the Claims
Tribunal.
4. By an order dated 20.04.2007 (subject matter of this
Application), the recovery rights were granted to the Non-
Applicant on the ground that no liability could be fixed on the
Insurance Company on the basis of a Cover Note or a policy
from the Insurance Company obtained by fraud. This Court by
order dated 20.04.2007 observed that since the Insurance
Company had already satisfied the claims of some other
Claimants arising out of this very accident, the Insurance
Company cannot discriminate the Claimants concerned in the
Appeal and thus while making the Non-Applicant (the Insurer)
to pay the award amount, recovery rights were granted against
the Applicant.
5. This was only to give the background. The merits of the case,
however, are not relevant for the disposal of the present
Application, which is simply on the ground that the Appellant
was prevented to appear at the hearing of the Appeal on account
of sufficient cause. Rule 21 of Order XLI of Code of Civil
Procedure is extracted hereunder: -
"21. Re-hearing on application of respondent
against whom ex parte decree made - Where an
appeal is heard ex parte and judgment is
pronounced against the respondent, he may apply
to the Appellate Court to re-hear the appeal; and,
if he satisfies the Court that the notice was not duly
served or that he was prevented by sufficient cause
from appearing when the appeal was called on for
hearing, the Court shall re-hear the appeal on
such terms as to costs or otherwise as it thinks fit
to impose upon him."
6. This Appeal was instituted in July, 2005 and came up for
hearing before the Court for the first time on 08.07.2005. The
notices were issued repeatedly for service of Respondent No.4
i.e. the present Applicant. A perusal of the Court record shows
that a notice was personally delivered upon the Applicant on
01.09.2005 for his appearance in the Court on 29.09.2005. The
notice was received by him under his own signatures at village
Paidul, District Pauri Garhwal, Uttarakhand. Since, this notice
was served through the Process Server of the District Court,
Pauri Garhwal, an endorsement in respect of the service was
made and notice duly served was returned to this Court. Since,
the notice was not returned by 29.09.2005 another notice was
sent for the Applicant's appearance for 02.12.2005. This notice
was again personally served upon the Applicant on 16.11.2005.
Another notice for appearance of the Applicant before the Court
on 17.04.2006 was also served. The matter came to be listed
before the Court on 04.05.2006 when the Court noticed the
absence of Respondents No.3 & 4 (despite service).
7. It is important to note that successive notices were served upon
the Applicant for his appearance before the Court. He preferred
not to appear in person or through an Advocate in spite of due
service. So far as the Applicant's service is concerned, he
cannot have any grudge that he was not served personally.
8. Now coming to the Applicant's plea that he was suffering from
brain tumor and, therefore, was not in a position to attend the
Court. Very surprisingly the Application is completely silent as
to when the Applicant suffered from the disease or in other
words when he had difficulty because of this disease. Para 2 of
the Application is extracted hereunder: -
"2. That the present applicant/ respondent was
getting treatment for brain tumor in Delhi and
could not get any notices issued by the Hon'ble
Court and consequently due to his medical
condition was unaware of the proceedings
conducted by this Hon'ble Court the medical
papers of the applicants are filed as Annexure R-1
(Colly)."
9. The Applicant has placed on record photostat copies of the
treatment papers running into 25 pages. All these papers pertain
to the year 2010. The Applicant's treatment in 2010 could not
have prevented him from appearing in the Court in the year
2005 to 2007 when the Notices were repeatedly served on him
and when the MAC. APP. No.529/2005 came to be disposed of
by an order dated 20.04.2007. It may be noted that even after
filing the instant Application (C.M. APPL. No.10963/2012) the
Applicant was not very vigilant. None appeared on his behalf
on 17.01.2012 and a default Notice had to be issued to the
Applicant's counsel.
10. The Applicant has failed to show that he was not served with
the Notice. As stated earlier the record clearly depicts that he
was personally served with the notice of the Appeal not only
once but thrice. There is no averment that he was prevented by
sufficient cause to appear before the Court since the service of
the notice in the year 2005/ 2006 and then at the time of hearing
of the Appeal.
11. The Application is frivolous; the same is accordingly dismissed.
12. In view of the above, C.M. APPL. No.10964/2012 also stands
disposed of.
13. No costs.
(G.P. MITTAL)
JUDGE
FEBRUARY 6, 2012
hs
