Prayer in C.R.P.No.3088 of 2010 : Civil Revision Petition filed under Article 227 of Constitution of India against the order of the E.A.No.8 of 2008 in E.P.No.24 of 2007 in the M.A.C.T.O.P.No.244 of 1996, which is passed on 05.08.2010, on the file of the II-Additional District Judge at Pondicherry.
Prayer in C.R.P.No.3056 of 2010 : Civil Revision Petition filed under
Article 227 of Constitution of India against the order of the I.A.No.1175 of 2008 in the M.A.C.T.O.P.No.244 of 1996, which is passed on 05.08.2010, on the file of the II-Additional District Judge at Pondicherry.
These Civil Revision Petitions filed against the orders made in E.A.No.8 of 2008 in E.P.No.24 of 2007 in the M.A.C.T.O.P.No.244 of 1996 and in I.A.No.1175 of 2008 in the M.A.C.T.O.P.No.244 of 1996, which are passed on 05.08.2010, on the file of the II-Additional District Judge at Pondicherry.
2. Issue involved in both the civil revision petitions are one and the same and therefore, they are disposed of by this common order.
3. Petitioner in both the civil revision petitions is the first respondent, respondents 1 to 7 are the petitioners and the 8th respondent is the 2nd respondent in M.A.C.T.O.P.No.244 of 1996. The respondents 1 to 7 filed the said claim petition, claiming a sum of Rs.7,60,000/- for the death of one Ramachandiran, in the accident that occurred on 11.10.1995. According to the respondents 1 to 7, the said deceased Ramanchandiran was driving a Tyre cart loaded with Straw on that day. At the time, the driver drove the bus bearing registration No.PYT 1944 belonging to the petitioner insured with the 8th respondent, in a rash and negligent manner and dashed against the Tyre cart. Due to that the Tyre cart over-turned and the said Ramachandiran sustained grievous injuries and subsequently, he died on the same day at 7.30 A.M.
4. In the accident, the Tyre cart was totally damaged both the bullocks sustained severe injuries, one died on the same day i.e.11.10.1995 and other one died on the next day. Therefore, the respondents 1 to 7 filed a claim petition, claiming a sum of Rs.7,60,000/-. The summons in M.A.C.T.O.P.No.244 of 1996 was served on the petitioner, he did not appear and contest the M.A.C.T.O.P.
5. The 8th respondent / Insurance Company contested the M.A.C.T.O.P. and award was passed on 07.01.2005, against the petitioner, directing him to pay a sum of Rs.2,26,000/- as compensation to the respondents 1 to 7. The petitioner did not deposit the said amount as directed by the Tribunal. The respondents 1 to 7 filed E.P.No.24 of 2007 in M.A.C.T.O.P.No.244 of 1996, against the petitioner. Notice was served on the petitioner in Execution Petition, petitioner entered appearance through an Advocate and subsequently, he did not appear.
6. The learned Judge in the Execution Court, posted the Execution Petition for payment. At that stage, the petitioner filed I.A.1175 of 2008 in M.A.C.T.O.P.No.244 of 1996 for condoning the delay of 1176 days in filing the petition to set aside the ex-parte award. He also filed E.A.No.8 of 2008 in E.P 24 of 2007 to condone the delay in filing the counter in Execution Petition and to permit him to defend the same.
7. According to the petitioner, he is not the owner of the vehicle, but his wife's brother, one Krishnamoorthy is the owner of the vehicle and the petitioner is only looking after the accounts of said Krishnamoorthy. On receipt of summons in the M.A.C.T.O.P, he informed the said Krishnamoorthy about the same, who asked him to hand over the summons in the M.A.C.T.O.P. and informed him that he would take care of the M.A.C.T.O.P. But, he failed to conduct the same and an ex-parte award was passed. Only when the notice in E.P.No.24 of 2007 was served on the petitioner, he came to know about the ex-parte award. Again after receiving the notice in the Execution Petition, he informed his wife's brother Krishnamoorthy about the notice received in the Execution Petition. His brother-in-law informed him that he would take care of the Execution Petition and subsequently, he informed the petitioner that he cannot defend the case. In view of the above fact that the petitioner is not the owner of the vehicle and his wife's brother Krishnamoorthy, who is the owner of the vehicle informed him that he would conduct the case, but failed to do so and an ex-parte award has been passed, the petitioner prayed for allowing the I.A.No.1175 of 2008 to condone the delay in filing the petition to set aside the ex-parte award and E.A.No.8 of 2008 to condone the delay in filing the counter in Execution Petition and to defend the same.
8. The 8th respondent filed counter and submitted that the insurance for the vehicle was standing in the name of the petitioner on the date of accident. The accident took place on 11.10.1995 at about 5.45 A.M., the petitioner took insurance for the vehicle at 4.45 P.M. on the same day. The reason given by the petitioner for not appearing before the Tribunal is not valid. The respondents 1 to 7 also filed counter and opposed the said application and submitted that on the date of accident, the vehicle was in the name of the petitioner and the same was confirmed by the letter of the 8th respondent, conforming his ownership. The case was pending for more than 12 years and at the belated stage of execution of award amount, the petitioner filed the present applications with the false averments only to delay the E.P.No.24 of 2007 and to deprive the rights of the claimants.
9. In the E.A.No.8 of 2008 also the petitioner has made the same averments. For the reasons stated in the E.A, the petitioner sought permission to file counter and defend the same. The learned Judge considering the fact that the accident taken place in the year 1995 and the petitioner having appeared in the Execution Petition and failed to defend the case, both the petitions were dismissed by order dated 05.10.2008 holding that the petitioner has not given any valid reason for condoning the delay.
10. Against the order in I.A.No.1175 of 2008 in M.A.C.T.O.P.No. 244 of 1996, the petitioner filed C.R.P.No.3056 of 2008 and order in E.A.No.8 of 2008 in E.P.No.24 of 2007, the petitioner filed C.R.P.No.3088 of 2008.
11. Heard Mr.B.Baskaran, learned counsel for the petitioner and Mr.M.A.Abdul Wehab learned counsel appearing for the respondents 1 to 7 and Mr.R.Sivakumar, learned counsel for 8th respondent and perused the materials available on record.
12. Subsequent to filing of Civil Revision Petitions, the learned counsel for the petitioner filed additional typed set of papers and submitted that, on the date of accident, the petitioner was not the owner of the vehicle and only one Kanagammal was the owner of the vehicle and insurance stood in her name. According to the petitioner, he obtained this information under Right to Information Act. Originally, the petitioner contended that his wife's brother Krishnamoorthy was the owner of the vehicle and he informed the petitioner that he would defend the M.A.C.T.O.P., again when he received notice in Execution Petition, he contacted his wife's brother Krishnamoorthy and according to the petitioner, Krishnamoorthy informed him that he would defend the Execution Petition. Only when subsequently, Krishnamoorthy refused to defend the execution petition, the petitioner filed I.A.1175 of 2008 to condone the delay in filing the petition to set aside the ex-parte award and E.A.No.8 of 2008 to condone the delay in filing the counter in Execution Petition and to defend the same.
13. Now, during hearing these civil revision petitions, the petitioner has given up his stand taken up by him before the Tribunal and has come up with the new case, that one Kanagammal was the owner of the vehicle on the date of accident. The petitioner has not given any particulars about the Kanagammal and whether he is related to kanagammal or he is the employer of Kanagammal or the kanagammal is related to the said Krishnamoorthy.
14. If really, the petitioner is not the owner and Krishnamoorthy or Kanagammal was the owner of the vehicle and there is no necessity for the petitioner to take policy in his name on the same day at 04.45 P.M. Further, if really the petitioner is not the owner of the vehicle, petitioner sworn to file affidavit before the Tribunal as well as in the EA. Considering these reasons given by the petitioner in the affidavits both filed in the I.A.No.1175 of 2008 and E.A.No.8 of 2008, it is seen that these reasons are not acceptable and not valid to condone the delay.
15. As far as, E.A.No.8 of 2008 is concerned, the petitioner after receiving the notice, entered appearance through Advocate, did not file any counter and contest the E.P.No.244 of 2007. In view of the same, Execution Petition was posted for payment. It is well settled law that application for condoning the delay must be considered liberally and length of delay is not a criteria. The Courts must see whether the parties were given acceptable and valid reason and the intention of the parties is bonafide and not malafide. The parties should not be shut down at the threshold itself and they must be given an opportunity to put forth their case on merits.
16. In the present case, the reason given by the petitioner is not valid and acceptable. The learned Judge considering all the the averments and materials available on record, dismissed both I.A.No.1175 of 2008 and E.A.No.8 of 2008, by giving cogent and valid reasons. In these circumstances, there is no illegality or irregularity warranting interference by this Court with these orders of the learned trial Judge, dated 05.10.2008.
17. In the result, these Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
01.08.2017 cgi/gsa To The II Additional District Judge Pondicherry.
V.M.VELUMANI,J.
cgi C.R.P.(NPD)Nos.3088 & 3056 of 2010 01.08.2017