R VENKATACHALAM Vs. SUMATHI

JUDGEMENT

(1.) THE above Letters Patent Appeal has been filed against the order of a learned single Judge of this Court dated 28.8.1991 in C.M.A. No. 804 of 1991 whereunder the learned single Judge while confirming the order of the Motor Accidents Claims Tribunal/I Additional Subordinate Judge, Coimbatore dismissing an application filed under Order 9, Rule 13, of the Code of Civil Procedure, dismissed the appeal filed in this Court by respondents 1 and 2 in M.C.O.P. No. 263 of 1985. THE respondents herein filed M.C.O.P. No. 263 of 1985 under Section 110-A of the Motor Vehicles Act, 1939 claiming a compensation of Rs. 2,00,000/- on account of the death of Ravi @ Ravichandran, the husband of the first petitioner, father of the second petitioner and the son of petitioners 3 and 4 before the Motor Accidents Claims Tribunal who was said to have died in an accident which took place on 20.4.1985 at about 12.30 PM when he was riding in his bicycle said to have been caused by the bus bearing registration No. TNB 6336 driven by the second respondent and owned by the first respondent before the Tribunal below.

(2.) THE appellants who are respondents before the Tribunal below were said to have engaged one S. Murugesa Marthandam as their counsel and filed a counter contesting the claim. It appears the very same counsel was appearing for the third respondent before the Tribunal which is the insurance company with whom the vehicle in question was insured. THE insurance company appears to have separately filed their counter statement. THE case appears to have been included in the Special List for the month and taken up for hearing on 7.7.1989. At that time, the counsel by name Murugesa Marthadam who was appearing for the appellants was said to have made an endorsement that in spite of several reminders the appellants who were respondents 1 and 2 before the Tribunal below have not turned up, and therefore, the counsel reported no instructions. THEy were set ex parte and thereafter also the matter was called before Court several times. On the basis of such endorsement the Tribunal below after recording the evidence on the side of the claimants and also after examining R.W. 1 has passed an award for a sum of Rs. 80,750/- with interest at 12% from the date of filing the claim petition till date of payment. While so awarding the compensation, Rs. 15,000/- was directed to be payable to the mother 4th claimant before the Tribunal and the balance to be equally shared by claimants 1 and 2. THE Tribunal below also held that out of the total compensation awarded the insurance company would be liable for a sum of Rs. 50,000/- with interest proportionately due thereon and for the balance of the compensation awarded the respondents 1 and 2 appellants would be liable with interest proportionately due therefor. It appears from the materials placed before us that the insurance company has complied with the award and deposited the same representing their portion of the liability and since the appellants failed to do so, the execution proceedings were initiated and on receipt of notice in the execution proceedings the appellants filed I.A. No. 302/90 invoking the provisions contained in Order 9, Rule 13, C.P.C. to set aside the ex parte award said to have been passed against them and have the main petition disposed of on merits as far as the appellants are concerned. THE respondents/claimants filed a counter opposing the said claim. It may be noticed even at this stage that no oral evidence has been tendered while the application under O. 9, Rule 13, C.P.C. was heard and on the basis of the submissions made before the Tribunal below the application came to be dismissed by an order dated 1.8.1991. In rejecting the said application the Tribunal below assigned more than one reason. It was observed by the Tribunal below that there was no reason to doubt the genuineness or bona fides of the endorsement made by the counsel who was appearing for the appellants that they have not taken care to give instructions to conduct the case further and contest the claim and that the explanation now offered about the counsel not properly informing them of the stage of the proceedings or the dates of the hearing appears to be a false reason unbelievable from the point of the Court and therefore, does not constitute sufficient reason to set aside the award passed. In addition thereto, it was also observed by the Tribunal below that no application has been filed under Order 9, Rule 7, meaning thereby that though the appellants were set ex parte on 7.7.1989, no attempt was made by them to approach the Court by filing such application to permit them to participate in the further stage of the proceedings before the date of the actual award passed on 3.1.1989, that no application has been filed under Section 5 of the Limitation Act for condoning the delay in seeking to file an application under Order 9, Rule 13, C.P.C. and that the award having been passed also on merits there are no justifying reasons to allow the present claim of the appellants to set aside the same and re-hear the matter.

(3.) MR. K.M. Santhanagopalan, learned counsel appearing for the appellants forcefully contended that the learned single Judge was not right in coming to the conclusion that the award passed by the Court below was one under Order 17, Rule 3, C.P.C. and that in law and on facts it should have been held only that Order 17, Rule 2, CPC alone applies to the nature of the award passed in this Case and consequently the application filed under Order 9, Rule 13, CPC was well merited and justified. The learned counsel further contended that the Courts below could not have set ex parte and acted upon merely on the endorsement made by the counsel appearing for the appellants who was also appearing for the insurance company and held to some extent adverse interest and that the endorsement made by such a counsel could not be the final word for non-suiting the appellants of their claim that they have not been properly apprised of the dates of hearing and the progress of the proceedings before the Tribunal and con quaintly the Court below as also the learned single Judge ought to have taken a liberal view of the matter in order to ensure the advancement of justice. The learned counsel also contended that the counsel below appearing for the appellants could not have legitimately reported no instructions when the counter affidavit has been filed for them and the very same counsel was proceeding with the case on behalf of the insurance company, who was the third respondent before the Court below. In support of the stand taken for the appellants, the learned counsel relied upon several Judgments of this Court as also the other High Courts and the Apex Court to which reference will be made hereinafter. Per contra, the learned counsel for the respondents adopted the reasons assigned both by the learned trial Judge as also the learned single Judge and contended that every one of the reasons assigned by themselves individually and taken cumulatively was more than sufficient to justify the order of dismissal of the claim of the appellants for restoration of the proceedings for being dealt with afresh and the appellants have made out no substantial case to warrant interference in our hands.