Azad Singh vs National Insurance Co. Ltd. & Ors.
2013 Latest Caselaw 486 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+          F.A.O. NO.53 OF 2013 & C.M. NOS.1866-1869 OF 2013

                                      Decided on : 1st February , 2013

AZAD SINGH                                       ...... Appellant
                    Through:   Mr. Sukhbir Singh, Advocate.

                      Versus

NATIONAL INSURANCE CO. LTD. & ORS.                ......      Respondents

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a first appeal under Order XLIII CPC against impugned

order dated 12.10.2012 passed by the learned Judge, MACT, Rohini,

Delhi, dismissing the application of the appellant herein under Order IX

Rule 13 CPC for setting aside the ex parte award dated 16.10.2002 passed

by the MACT Court.

2. Briefly stated the facts of the case are that one Surinder Singh,

husband of Daljeet Kaur and father of Daman Preet Singh and Parbhjot

Singh (respondents herein), had died in a road accident. The present

appellant was the driver, one Karambir Singh was the owner and M/s.

National Insurance Co. Ltd. was the insurer of the offending vehicle. On

account of the death of Surinder Singh, the respondent Nos.2 to 6 being

the legal heirs of the deceased, filed a petition in the court of MACT

claiming compensation. The learned Judge, MACT issued notice. So far

as the appellant herein (the driver) and the owner of the vehicle Karambir

Singh are concerned, they chose not to appear and consequently, they

were proceeded ex parte. The insurance company was the only party

which appeared before the MACT court. The learned MACT Judge

framed the following issues and permitted the parties to adduce evidence:

"I. Whether Surinder Singh died of the fatal injuries caused due to rash and negligent driving of motor cycle No.DL-9S-F-1693 on 10.12.1999 at about 3:15 pm by respondent Azad Singh?

II. Whether the respondent Azad Singh was not having valid D.L. on the date of the incident, if so, its effect?

III. To what amount of compensation if any the petitioners are entitled and from whom?

IV. Relief."

3. The learned Judge arrived at the conclusion that the death of the

deceased had taken place on account of the road accident and since the

insurance company was the insurer of the vehicle, it was fastened with

the liability to pay a sum of `2,60,000/- (after adjusting an interim

compensation of `50,000/-) with interest @ 9 per cent from the date of

the filing of the petition till the date of realization of the amount. The

insurer was also given the liberty to affect recovery of the compensation

amount from the driver (appellant herein) and the owner of the offending

vehicle.

4. The appellant herein filed an application on 5.9.2007 for setting

aside the ex parte award passed against him. It was pleaded in the said

application that he was never served with the summons in respect of the

claim petition and, therefore, he could not appear.

5. The said application of the appellant was dismissed by the learned

Judge, MACT observing that the averments made in the application dated

5.9.2007 were not supported by the record. The appellant had not only

been served but he was duly represented by one Sukhbir Singh, who had

filed vakalatnama on his behalf. The signatures of the appellant

appearing on the vakalatnama were tallying with the signatures appearing

on the application filed by the appellant under Order IX Rule 13 CPC. In

addition to this, it was noted by the learned Judge that the attendance of

the appellant was also recorded in the order sheet dated 14.2.2001

through his counsel, who had sought time for filing written statement.

The subsequent order sheets dated 24.5.2001 and 28.5.2001 also show the

attendance of the counsel for the appellant. Keeping in view this record

of judicial proceedings, the learned Judge rejected the application of the

appellant for setting aside the ex parte award by observing that it has

taken five long years for the appellant to come to the court after waking

up from long slumber to set aside the ex parte award without giving any

valid reasons and accordingly, the application was dismissed.

6. I have heard the learned counsel for the appellant, who has taken

the same plea that the appellant was not served and, therefore, was not

aware of the proceedings. I have carefully considered the submissions

and have gone through the record. An application under Order IX Rule

13 CPC will be maintainable if a party shows that either he had not been

served or that he was prevented by „sufficient cause‟ from appearing in

the court. In the instant case, the appellant‟s case is that he was not

served at all. This fact is not supported by the judicial record inasmuch

as not only the attendance of the counsel for the appellant was marked but

the attendance of the appellant himself was recorded in the order sheets of

the MACT claim petition. This has also been noted by the learned Judge

himself. That being the position, it does not lie in the mouth of the

appellant to contend that he has not been served. Section 80 of the

Evidence Act attaches presumption of correctness to the judicial

proceedings. Therefore, the correctness and genuineness of the judicial

record shows that presence of the appellant cannot be doubted. That

being the position, the plea which has been taken by the appellant is

totally false and does not deserve to be entertained. In addition to this,

assuming for a moment for the sake of argument that he was not served

even then, he has to disclose as to what was the „sufficient cause‟ which

prevented him from contesting the claim petition after he had the

knowledge about the same. In this regard also, the application of the

appellant is bereft of any details. Therefore, on this score also, the

application does not deserve to be allowed.

7. For the reasons mentioned above, the appeal of the appellant does

not have any merit and, therefore, the same is dismissed. All the interim

applications also stand dismissed.

V.K. SHALI, J.

FEBRUARY 01, 2013 'AA'