The Union Of India And Anr. ... vs Sri Santosh Sarkar
2021 Latest Caselaw 837 Tri

                  HIGH COURT OF TRIPURA
                        AGARTALA
                        MAC App. 17 of 2021
1.The Union of India and Anr. Represented by the Inspector General,
HQ TRA, FTR, BSF, Salbagan, Agartala, Tripura.

2.The Commandant, 50Bn. BSF, Ambassa, District - Dhalai, (Owner
of the vehicle vide No.- TR-04-1203(Mini Bus).
                                               -----Appellant(s)

                               Versus

1.Sri Santosh Sarkar S/O - Late Surendra Sarkar, Resident of
Joynagar, Nabadiganta Lane, P.S.- West Agartala, District - West
Tripura.
2.Sri Sukanta Sutradhar, S/O.- Subhas Sutradhar, Of Bardowali
(near Pratap Sangha), P.S.- West Agartala, District - West Tripura,
(Owner cum Driver of the vehicle vide No. TR-01-G-0782(Auto
Van).
                                               -----Respondent(s)

                           BEFORE
     HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
For the Appellant (s)     : Mr. Biswanath Majumder, CGSC.

For the Respondent(s)     : Mr. S.Lodh, Adv.
                            Mr. S.Bhattacharjee, Adv.
                            Mr. B.Saha, Adv.

Date of argument          : 20.08.2021
Date of Judgment          : 03.09.2021
Whether fit for reporting: No.

                            ORDER

This appeal has been filed under Section 173(1) of the

Motor Vehicles Act, 1988 against the award dated 07.05.2015

passed by the Motor Accident Claims Tribunal No.3 West Tripura,

Agartala in TS (MAC) 371 of 2009 awarding compensation of a sum

of Rs.2,23,434/- along with 8% annual interest thereon to the

original claimant respondent who received injury in a road traffic

accident occurred on 17.01.2005 in which vehicle of the appellant

was involved.

[2] Factual background of the case is as under:

Original claimant (respondent No.3 herein) was a dealer

of poultry chicks. On 17.01.2005, he was carrying poultry chicks in

an auto rickshaw bearing registration No.TR-01-0782 from Agartala

to Bishalgarh. When his vehicle reached BSF gate No.01 at

Gokulpur, the mini bus of the appellant bearing registration No.TR

04 1203 hit the auto rickshaw of the claimant respondent from the

opposite direction. Since the offending vehicle was being driven at a

very high speed, the claimant respondent and the driver of the auto

rickshaw received fatal injuries from the collision and they were

immediately taken to GBP hospital at Agartala where he received

treatment as an indoor patient and on the following day he was taken

to Kolkata for treatment. He received treatment in Woodland

Medical Centre in Kolkata from 18.01.2005 to 30.01.2005. Even

after his discharge from the said hospital, claimant respondent

MAC App 17 of 2021

visited the hospital several times for follow up treatment. According

to the claimant respondent, he was only 23 years old when the

accident took place. He used to earn Rs.7000/- from his business. As

a result of the accident, he lost his earning capacity. He, therefore,

filed the petition under Section 166 MV Act at the Tribunal claiming

compensation of a sum of Rs.24,38,000/-.

[3] The appellants did not turn up before the Tribunal to

contest the case. Respondent Auto driver who initially appeared did

not also file any written reply to the claim of the original claimant

despite receiving notice. The Tribunal, therefore, heard the matter

ex-parte against all the 03 respondents and awarded Rs.2,23,434/-

along with 8% annual interest thereon from the date of presentation

of the claim till disbursement.

[4] The appellants have challenged the award on limited

grounds. The memo of appeal would show that appellant has no

grievance with the amount of compensation awarded by the

Tribunal. According to the appellants, Tribunal decided the matter ex

parte without serving any notice on them. After the matter was heard

ex-parte and the award was passed, the claimant filed a petition at

the Tribunal for execution of the decree which was registered as

Civil Misc. 52 of 2016. The appellants came to know about the MAC App 17 of 2021

award of the Tribunal only after the notice was served on them in

said Civil Misc. 52 of 2016. Appellants immediately stepped into

action for setting aside the ex parte order by filing a petition under

order IX Rule XIII CPC at the Tribunal which was registered as

Civil Misc. 98 of 2016. The Tribunal rejected the said petition of the

appellants filed under order IX Rule XIII on merit by an elaborate

order dated 26.02.2021 passed in case No. Civil Misc. 98 of 2016

which reads as under:

"Learned Addl. CGSC Mr. S. S. Dutta appearing for the petitioner is present.

Learned advocate Mr. S. C. Sen appearing for the OP No. 1 is also present.

Learned advocate Mr. B. Saha appearing for the OP No. 2 is also present.

I have heard both the sides on 02.01.2021.

Perused the record.

Brief facts leading to this case is that on 17.01.2008 at about 9.30 hours the OP NO. 1 herein was proceeding towards Bishalgarh by a auto van bearing registration No. TR01-G-0782 carrying poultry chicks and on the way when the auto van reached near the BSF gate, Gokulpur on Agartala-

Bishalgarh road at that time one mini bus bearing registration No. TR04-1203 (maintained by the Commandant, 50 BN BSF, Ambassa, Dhalai) coming at a high speed from the opposite direction

herein has suffered severe injuries and as such he undergone treatment at Agartala as well as at Kolkata. Due to the injuries suffered on account of said accident, the OP No. 1 herein as claimant petitioner has filed a claim petition u/s 166 of the MV Act seeking compensation vide TS (MAC) 371 MAC App 17 of 2021

of 2009. The claim of the OP No. 1 resulted in award dated 07.05.2015 passed by MAC Tribunal No-3, Agartala whereby the petitioner herein were directed to pay an amount of Rs. 2,23,434/- to the OP No. 1 as compensation along with 8% interest per annum thereon from the date of filing the claim petition till the date of realization failing which the amount shall carry 10% interest per annum thereon.

At a later stage said award has been put in execution vide Civil Misc. 52 of 2016. On receipt of notice in connection with said execution proceeding the petitioners claim to have come to know about the aforesaid award. According to the petitioner they never received any notice in connection with the said claim petition and as such could not filed any statement in defence but the case was heard exparte against them. The petitioner therefore, stated that said exparte award may be set aside in terms of the provision of order IX rule 13 CPC.

The facts needed to be mentioned here that 492 days delay which was caused in filing the case at hand was condoned vide order dated 03.01.2018 made in connected Misc. (Condo) 69 of 2016.

With a view to decide the case at the outset we have a reference to the provision of Rule 13 to order IX CPC which enables a party to apply for setting aside an exparte order but the party has to fulfill the following conditions: (I) That, summon was not duly served; (ii) That he was prevented by any sufficient cause from appearing when the suit was called for hearing. Irregularities in causing service of summon, however, cannot be taken as a ground for setting aside the exparte order. The petitioners herein claim to have no notice of the filing and pendency of the claim petition vide TS (MAC) 371 of 2009. This circumstances leads us to have a reference to the record of said MAC case which was already placed with the record of this case. The order dated 02.01.2011 runs as under:

"The claimant petitioner today has submitted one letter issued by First Flight Couriers Limited, Sukantala Road, Agartala which speaks about the service of notice to the Op Nos. 1 and 2 (petitioners

MAC App 17 of 2021

herein) on 09.03.2011 but none appears on behalf of OP Nos. 1 and 2.

However, time is allowed to OP Nos. 1 and 2 for their appearance..........."

In this connection we have also gone through the letter of said Courier service which was communicated by the Courier Authority to Learned advocate for the OP No. 1 herein on the letter being issued to them by learned advocate for the OP No. 1. The letter as aforesaid clarifies that the notice was delivered to the petitioners herein on 09.03.2011.

Keeping in view the letter of Courier service and the order dated 02.12.2011, the aforesaid claim case was ordered to run exparte against the petitioners herein. So in view of the order dated 02.12.2011 it cannot be said that the notice was not duly served upon the petitioners herein. In this view of the matter I am of the opinion that the application under consideration has no merit and accordingly, stands rejected.

This Misc. case accordingly, stands disposed of on contest.

Enter the result."

[5] Tribunal thereafter proceeded to execute the decree. In

these circumstances, the appellant challenged the award of the

Tribunal mainly on the ground that Tribunal passed the award ex

parte without serving any notice on the appellant and the order of the

Tribunal declining to set aside the ex parte order was unfounded and

erroneous.

[6] As discussed, the appellant has not challenged the

amount of compensation awarded by the Tribunal. The appellants

have not also denied the accident. Involvement of their vehicle in MAC App 17 of 2021

the said accident is not also denied by the appellants. In these

circumstances, it would be unjust to remand back the case to the

Tribunal for fresh trial particularly when the Tribunal heard the

matter ex-parte after recording a specific finding that notice was duly

served on the appellant through courier service. Such findings of the

Tribunal are based on the report of the courier agency.

[7] Contention of the counsel of the appellants that the

insurer of the auto rickshaw in which the injured claimant was

travelling should also have been saddled with liability of paying

compensation to the claimant is not acceptable because on

appreciation of evidence, the Tribunal had arrived at the conclusion

that the accident occurred as a result of rash and negligent driving of

the offending vehicle of the appellants.

[8] In view of what is discussed above, I find no reason to

interfere with the award of the Tribunal. Resultantly, the appeal

stands dismissed.

[9] Counsel of the appellants have submitted that pursuant

to order dated 06.08.2021 of this court, appellants have deposited the

entire amount of compensation along with accrued interest thereon

as per the award and the said amount is lying with the concerned

MAC Tribunal at Agartala. The concerned Tribunal is directed to MAC App 17 of 2021

disburse the amount in favour of claimant respondent No.01 within a

period of 3 weeks from today.

[10] In terms of the above, the appeal stands disposed of.

Interim application(s), if any, shall also stand disposed

of.

Return the LC record.

JUDGE

Saikat Sarma, PA

MAC App 17 of 2021