Naresh Kumar vs United India Insurance Company ...
2021 Latest Caselaw 1795 j&K

                                                         Sr. No. 44

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                       Pronounced on : 31.12.2021
                                             CONC No. 42/2011
                                            IA No. 27/2013

Naresh Kumar                                          ....Petitioner(s)



                     Through: Mr. R.K.Bhatia, Advocate.
                Vs


United India Insurance Company Ltd.                      .....Respondent(s)
and others

                     Through: Mr. Vishnu Gupta, Advocate for R-1.
                              Mr. Sunil Sethi, Sr. Advocate with
                              Mr. Dhiraj Choudhary and Mr. Navyug
                              Sethi, Advocates for R-2 & 3.

Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                ORDER

1. Applicant, Naresh Kumar has filed the appeal against the Award

passed by the Motor Accident Claims Tribunal, Jammu vide dated

27.06.2009. Along with the appeal, he has also filed an

application for condonation of delay of more than 506 days in

filing the appeal. It is submitted in the application that he was not

aware of filing of any claim petition against him as no notice was

served upon the appellant in the claim petition.

2. The respondents herein filed application for recovery of amount

against the appellant as the liability was fastened upon the

applicant and respondent Nos. 2 & 3. The Tribunal passed an

order for seizure of shop of brother of appellant and the shop was

seized on 23rd January, 2011. The appellant engaged a counsel

who informed him about the passing of award by the Tribunal

IA No. 27/2013

against him. The delay in filing the appeal is not intentional is

what is pleaded in the application.

3. The objections to the application have been filed by the

respondent-Insurance Company as well as respondent Nos. 2 & 3

jointly. The Insurance Company in its objections has submitted

that the petitioner was duly served through the agency of the

District Court and despite service failed to appear before the

Tribunal. There is no sufficient cause for delay in filing the

appeal. The appeal having been filed after three years from the

date of passing of the award without any sufficient cause the

application is required to be dismissed.

4. The respondent Nos. 2 & 3 have submitted that the applicant-

Naresh Kumar had participated in the proceedings after due

notice. There is no sufficient cause for allowing the application.

5. The scanned record of the Tribunal is also before the court.

6. Learned counsel appearing for the applicant has argued that

summons were not served upon the applicant-Naresh Kumar

during the pendency of the claim petition before the Tribunal and

the applicant came to know of the passing of the award only after

the execution proceedings came to be filed and the shop was

sealed. There is no deliberate delay in filing the appeal thereafter.

7. Learned counsels for the respondents submit that no sufficient

cause is shown by the applicant in not filing the appeal within

IA No. 27/2013

time. The applicant was duly served but never cared to appear

before the Tribunal to contest the claim petition. It is also argued

that the appeal filed is itself not maintainable as the applicant-

appellant has not deposited the requisite amount as envisaged

under Section 173 of the Motor Vehicles Act.

8. The only ground taken in the application filed for condonation of

delay is that the applicant herein was not served during the

pendency of the claim petition before the Tribunal. The perusal of

the record proceedings of the Tribunal reveals that the summons

were issued to the applicant herein Naresh Kumar through

registered post but were received back with the report unclaimed

or incomplete address. The notice was thereafter issued to the

applicant-Naresh Kumar through Process Serving Agency of the

District Court, Jammu. As per the report of the process server, the

notice was duly served upon the applicant on 16.10.2004. The

signatures of said Naresh Kumar also appear on the back of the

summons issued by the Tribunal. The signatures of the applicant

on the summons when apparently compared with the pleadings

filed before this court with the naked eye the same appear to be

the same. It cannot be said that the applicant was not served

during the pendency of the claim petition before the Tribunal. It is

not the case of the applicant in the present application as well as

in the appeal filed along with the present application that he was

IA No. 27/2013

not at all served but submits that he cannot be said to be served as

the complete address was not mentioned in claim petition and

copy of the claim petition was not annexed with the summons.

The court is of the view that the plea raised is specious and needs

rejection. In a proceeding of the present nature every irregularity

occurring in the summons even if it is there cannot be the only

reason to set aside the proceedings initiated against him. May be

the applicant adopted callous attitude in the claim proceedings

laboring under the impression that the award, if any, is to be

passed in favour of the claimants only the insurance company

shall be liable for the same.

9. The authorities produced by the learned counsel for the appellant

do not help the applicant in the present application. 1995 Legal

Eagle 1032 has been decided by the Hon'ble Apex Court keeping

in view the peculiar facts of the case. In 1990 KLJ 260 the

Hon'ble High Court dealt with the issue of service of the

summons under O 5 CPC taking into consideration the factum of

the report of the process server that the defendant refused to

accept the summons.

10. The learned counsel has also taken plea of Rule 316 framed under

the Motor Vehicles Act wherein it is stated that if the Tribunal is

to proceed with the case then the Tribunal is required to send to

the owner and the driver of the vehicle copy of the application

IA No. 27/2013

together with the notice on the date on which the Tribunal shall

dispose of the application. The Court is of the view that the plea

of the applicant herein cannot sustain in the facts and

circumstances of the case as emanating from the record of the

Tribunal.

11. The Court is of the view that the plea taken by the applicant is an

afterthought and does not support the case of the appellant.

12. The learned counsels appearing for the respondents have argued

that the appeal itself is not maintainable as the applicant has not

deposited the requisite amount as mandated in Section 173 (1) of

The Motor Vehicles Act, 1988.

13. The learned counsel for the applicant herein, however, submits

that the applicant was not required to deposit the amount unless

the court entertains the appeal and directs the applicant to deposit

the amount as per the requirement of the aforesaid Section. He has

relied upon the judgment of the learned Single Judge reported in

2008 ACJ 1912 titled Kabla Singh v. Kailash Kumari and others.

However, the answer to the aforesaid plea of the respondents is

found in the judgment of Division Bench of this Court reported in

1999 KLJ 758 titled United India Insurance Company Limited v.

Mohd. Maqbool Reshi wherein the Division Bench held the

appeal to be not maintainable as the appellant had not deposited

the amount in terms of sub-section (1) of Section 173 of the Act

IA No. 27/2013

while filing the appeal. The court had also taken note of the fact

that the appeal filed by the appellant before the Single Bench was

time barred as is the case here. The judgment of the Division

Bench applies on all fours in the present case.

14. The Court is of the considered opinion that the appeal is not

maintainable as the applicant herein failed to deposit the amount

as required in terms of Section 173 (1) of the Act. Otherwise too,

the court has not found that the applicant-appellant has made out a

case for condonation of delay in filing the appeal.

15. In the light of the discussion made above, the application filed for

condonation of delay is dismissed. Consequently, the appeal filed

along with the application also stands dismissed.

(Puneet Gupta) Judge Jammu 31.12.2021 Pawan Chopra

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

PAWAN CHOPRA 2021.12.31 16:18 I attest to the accuracy and integrity of this document