MAGADRI SATYANARAYANA Vs. B JAYARAMARAO

JUDGEMENT

(1.) THE appellant is the claimant. The Tribunal below dismissed the Original Petition against all the respondents viz., the 1st respondent owner of the vehicle, the driver 2nd respondent and the Insurance Company, 3rd respondent. In this appeal unfortunately respondents 1 and 2 i.e., the owner and the Driver have not been impleaded stating that they are not necessary parties, as they remained ex parte in the Lower Court. Notice is only taken out to the 3rd respondent Insurance Company which was served. When I pointed out how a decree can be considered on merits in the absence of the insured the 1st respondent owner of the vehicle, the learned counsel for the appellant placed reliance on O. 41, R. 14(4), C.P.C. and contended that since they remained ex -party in the tribunal below it is not necessary to take out notices to them. Therefore, the appeal can be considered on merits as against the Insurance Company and the matter be remanded to the tribunal for reconsideration afresh. I find no force in this connection. Order 41 Rule 14(4), C.P.C. postulates that "Notwithstanding anything to the contrary contained in sub -rule (1) it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the appellate court, unless he has appeared and filed an address for the service in the Court of First instance or has appeared in the appeal." This clearly postulates that if the person is impleaded for the first time then notice is necessary. Otherwise if the persons are impleaded in the tribunal below in the incidental proceedings viz., interlocutory orders notice need not be taken out by operation of sub -rule (4), R. 14, of O.41, C.P.C. The language used is non obstante clause. Sub -rule (1) of Rule 14 of Order 41 postulates in mandatory language thus : 'Notice shall be sent by the appellate court to the court from whose decree the appeal is preferred, and shall be served on the respondent or on his Pleader in the appellate court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.' Thereby sub -rule (1) of R. 14 of Order 41, C.P.C. mandates to service the notice on the respondent through the court below unless it is excluded by operation of sub -rule (4) of Rule 14, of Order 41, C.P.C. As stated earlier sub -rule (4) is used to the incidental proceedings viz., interlocutory orders but not in the main appeal. Thereby though the owner remained ex parte in the tribunal below still the claimants or the person seeking relief in this court the appellant is not absolved or its/his duty to taking out notice to the affected parties, the owner or the Insurance Company and impleading them. Since the claimant has not taken out any notice and has been expressly stating that the owner is not a necessary party, this court cannot go into the merits as against the insurance company since the liability of the Insurance Company is joint and several as against the owner. Unless there is a decree and a finding binding on the insured viz., the owner, the insurance company cannot be made liable. Under these circumstances I hold that the absence of notice militates against the appellant for asking any relief on merits. The appeal is dismissed as the order of the tribunal has become final as against the owner, but in the circumstances without costs.