RAJESWARI Vs. DURGA BAI

JUDGEMENT

(1.) The appellant before this court is the second respondent in M. A. C. T. 0. P. No. 832 of' 1970 on the file of the Motor Accidents Claims Tribunal, Madras, filed by respondents 1 to 3 herein as petitioners. The first respondent in the O. P. is the Insurance Company. As a result of the lorry accident the first respondent's husband died on 2-8-1970 and respondents 1 to 3, along with the mother-in law of the first respondent, obtained an award for a sum of 37,440, against the appellant and the Insurance Company, on 10-2-1972. The appellant remained ex parte in the proceedings before the Tribunal, and hence the award against her was an ex parte award. The Insurance Company filed an appeal against the award, and that was dismissed. Thereafter the Insurance Company paid a sum of Rs. 20,000 as its statutory liability was limited to Rs. 20,000. Since the balance amount of Rs. 17,400 under the award was not paid by the appellant, the respondents obtained a certificate from the court to the Collector for recovery of the amount under S. 110-E of the Motor Vehicles Act. On 15-41981, the respondents advocate sent a notice to the appellant stating that coercive steps will be taken or recovery of the amount due under the award. The postal address of the appellant given in that notice was No. 25, Ist Main Road, West Shenoinagar, Madras 30. After the receipt of the notice, the appellant filed M P. 799 of 1981, before the Motor Accidents Claims Tribunal for setting aside the ex parte award. Her contention was that in the main O. P, substituted service was effected on her, showing her place of residence is No. 4. East Arasamaram St. Aminjikarai, Madras and at that time, she was residing at No. 1. First Cross St. Mehtanagar, Madras and thereafter she moved to her own house at No. 25 First Main Road, West Shenoynagar, Madras 30, and that she became aware of the ex parte order only when she received the communication from the respondents advocate, addressed to her to Shenoynagar, stating that coercive steps will be taken against her for realising the amount due under the award and within 30 days from that date, she has filed an application to set aside the award. The respondents' contention is that under Rule 18 of the Tamil Nadu Motor Accidents Claims Tribunal Rules 1961, O. 5, R. 20, C. P.C. ,is applicable to the proceedings before the Claims Tribunal and as the grounds or taking substituted service existed in this case, the substituted service effected is proper and amounts to personal service on the appellant and the application to set aside the ex parte award after more than nine years is not bona fide and is barred by limitation. The Claims Tribunal held that it is likely that both at the time of the accident as well as when the award was passed, the appellant must have been residing at No. 4 East Arasamaram St.. Madras, as given in the petition and the appellant was the owner of the lorry and if the award is set aside after a lapse of 11 years, the respondents will be put to hardship. On these findings, the Claims Tribunal dismissed the application. On appeal a learned single Judge of this court held- (a)Publication of the proceedings before the Tribunal was effected in a daily newspaper which has a wide circulation and the appellant cannot contend that she had no knowledge of the proceedings; (b) The appellant has stated earlier that she was never the owner of the vehicle and later pleaded that the vehicle was purchased in her name by her father and this will clearly go to show that she is not bona fide in her contentions. With these findings, the learned single Judge of this court dismissed the appeal. Against the order and judgment of the learned single Judge, the present Letters Patent Appeal has been filed.

(2.) The learned counsel for the appellant contended that substitute& service was effected at No. 4 East Arasamaram St. Aminjikarai, Madras, where the appellant never resided and only when he respondents issued the letter dated 15-4-1981 to her correct Shenoynagar address, she came to know about the award passed against her, and the appellant was never the owner of the lorry involved in the accident and she must be given an opportunity to establish her plea.

(3.) The learned counsel for the respondents contended that in the reply affidavit filed by the appellant in W. P. 799 of 1981 it is specifically admitted that her father purchased the lorry in her name and the address in which the substituted service was effected is the place of residence of the appellant's father as per the records maintained in the office of the Motor Vehicles Department, that the appellant must have had knowledge of the proceedings before that Claims Tribunal and the application to set aside the ex parte award after lapse of 11 years would work great hardship on the respondents and that there is no bona fides in the application filed by the appellant.