Karnataka High Court
Shriram General Insurance Company Ltd vs Kumari. Afrin D/O Rajesab Mulla on 29 October, 2024
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NC: 2024:KHC-D:15824
MFA No. 103679 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.103679 OF 2018 (CPC)
BETWEEN:
SHRIRAM GENERAL INSURANCE COMPANY LTD,
E-8, EPIP, RICO, INDUSTRIAL AREA,
SITAPUR, JAIPUR, STATE: RAJASTHAN.
REPRESENTED BY ITS LEGAL MANAGER,
BRANCH OFFICE, 3/4, S.V. ARCADE,
BILEKAL MAIN ROAD, BANNERUGHATTA ROAD,
IIMB POST, BANGALORE, NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI S. K. KAYAKAMATH, ADVOCATE)
AND:
1. KUMARI AFRIN D/O. RAJESAB MULLA,
AGE: 16 YEARS, OCC: STUDENT,
SINCE MINOR, REPRESENTED BY HER NARURAL FATHER
Digitally signed
RAJESAB S/O. HUSENSAB MULLA,
by SAROJA
HANGARAKI
AGE: 40 YEARS, OCC: COOLIE,
Location: High R/O: GUDUR VILLAGE, TQ: HUNAGUNDD,
Court of
Karnataka DIST: BAGALKOT - 587 101.
2. SHRIKANT S/O. NINGAPPA GOTUR,
AGE: 35 YEARS, OCC: OWNER OF THE CRUSHER
JEEP BEARING NO.KA-34/MD-9944,
R/O: KODIHAL VILLAGE, TQ: HUNAGUNDD,
DIST: BAGALKOT-587101.
...RESPONDENTS
(BY SMT. SHEBA A. KHANAPUR, ADVOCATE FOR
SRI SUNIL S. DESAI, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
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NC: 2024:KHC-D:15824
MFA No. 103679 of 2018
THIS MFA IS FILED U/S.43 RULE 1(d) OF CPC, AGAINST THE
JUDGMENT AND AWARD DATED 25.08.2018 PASSED IN MISC.
NO.10/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, HUNGUND AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The above appeal is filed by the Insurer challenging
the order dated 25.08.2018 passed in Misc.No.10/2017 by
the Court of Senior Civil Judge and JMFC, Hungund.
2. The relevant facts leading to the present appeal
are that the first respondent/claimant instituted a claim
petition in MVC No.189/2013 on the file of the Court of the
Senior Civil Judge and MACT, Hungund1 claiming
compensation for the injuries sustained in a road traffic
accident dated 11.10.2012.
Hereinafter referred to as 'Tribunal'
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3. The respondent No.2 herein who is the owner of
the insured vehicle was arrayed as respondent No.1 before
the Tribunal and appellant herein who is the Insurer of the
vehicle was arrayed as respondent No.2 before the
Tribunal in the said claim proceedings.
4. The Tribunal by its judgment and award dated
02.03.2017, allowed the claim petition and ordered that
the claimant is entitled for compensation of ₹2,05,000/-
together with interest at 8% per annum and ordered the
Insurer, the second respondent therein/appellant herein to
deposit the compensation awarded.
5. The owner of the vehicle was represented
before the Tribunal through his counsel. However, the
Insurer was placed ex-parte. Subsequently, the Insurer
preferred Misc.No.10/2017 to set aside the ex-parte
judgment and award dated 02.03.2017 passed in MVC
No.189/2013. Since the said miscellaneous petition was
filed belatedly, an application under Section 5 of the
Limitation Act was filed to condone the delay of 210 days
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in filing the miscellaneous petition. The said application as
well as Misc.No.10/2017 were dismissed vide order dated
25.08.2018. Being aggrieved, the present appeal is filed
by the Insurer.
6. This Court by order dated 24.09.2019 allowed
I.A.No.1/2019 filed in the present appeal and granted stay
of the judgment and award dated 25.08.2018 passed in
MVC No.189/2013 subject to condition that the appellant
deposits the entire award amount with interest within four
weeks before the Tribunal. Learned counsel for the
appellant, Sri.S.K.Kayakamath submits that the said order
dated 24.09.2019 has been complied with and the entire
award amount together with interest has been deposited
before the Tribunal on 19.10.2019.
7. Heard the submissions of the learned counsel,
Sri.S.K.Kayakamath for the appellant and learned counsel,
Smt.Sheba A Khanapur for respondent No.2. Respondent
No.1 is served and unrepresented.
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8. Learned counsel for the appellant contends that
the award of the Tribunal has been passed ex-parte and
the Insurer did not have an opportunity to contest the
claim proceedings. He further submits that the
miscellaneous petition as well as the application for
condonation of delay has been erroneously rejected.
Hence, he seeks for allowing of the above appeal.
9. Learned counsel for respondent No.2 places
relevant facts on record.
10. The submissions of both the learned counsels
have been considered and the material on record have
been perused.
11. Admittedly, the appellant - Insurer who was
arrayed as respondent No.2 before the Tribunal, did not
have an opportunity to contest the claim proceedings.
While considering the application for condonation of delay
filed in Misc.No.10/2017, it has been held that the
petitioner has not stated as to how they came to know of
the ex-parte judgment passed in MVC No.189/2013 and
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that no proper reasons have been assigned to condone the
delay.
12. It is forthcoming that, admittedly the appellant
has not contested the claim proceedings. The appellant
ought to have been afforded an opportunity to contest the
same. Saddling the appellant with liability without being
afforded another opportunity to contest the claim
proceedings would be erroneous.
13. In view of the aforementioned, it is expedient
that the relief sought for by the appellant in the above
appeal be granted. Hence, the following:
ORDER
i. The above appeal is allowed;
ii. The order dated 25.08.2018 passed in
Misc.No.10/2017 by the Court of the Senior Civil
Judge and JMFC, Hungund is set aside;
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iii. The application filed under Section 5 of the
Limitation Act in Misc.No.10/2017 as well as the
application in Misc.No.10/2017 on the file of the
Senior Civil Judge and JMFC, Hungund are
allowed;
iv. The judgment and award dated 02.03.2017
passed in MVC No.189/2013 on the file of the
Senior Civil Judge and MACT, Hungund is set aside
and MVC No.189/2013 is restored to file;
v. The appellant and respondent No.2 herein shall
appear before the Tribunal on 22.11.2024 without
the requirement of any further notice being issued
to the said parties in that regard, pursuant to
which the Tribunal shall conduct further
proceedings in accordance with law;
vi. The amount deposited by the appellant before the
Tribunal pursuant to the order dated 24.09.2019
passed in the present appeal, shall be kept by the
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Tribunal in a fixed deposit for a minimum period
with automatic renewal clause and shall be
subject to further orders that may be passed by
the Tribunal in MVC No.189/2013;
vii.The statutory deposit amount of ₹25,000/-
deposited by the appellant in the above appeal be
refunded to the appellant.
SD/-
(C.M. POONACHA)
JUDGE
SH
CT-ASC
