IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.No.28553/2012 (GM-AC) BETWEEN:
1. Sri Gangahanumaiah S/o. Honne Gowda, Aged about 45 years, R/o. Galagepalya Village, Galaga Post – 572 216, Kasaba Hobli, Gubbi Taluk, Tumkur District (By Sri V.B.Siddaramaiah, Advocate) AND:
1. Sri B.G.Govindaraju S/o. Doddagangaiah, Aged about 43 years, R/o. Bommanahalli Village, Urdigere Hobli – 572 104, Tumkur Taluk and District 2. The ICICI Lombard General Insurance Co. Ltd., Prestige Corriche, No.62/1, Richmond Road, Near ICICI Towers, Bengaluru – 560 025 ... Petitioner Rep. by its Manager Address for service.
The ICICI Lombard General Insurance Co. Ltd., No: 89, SVR Complex, Madivala Road, Bengaluru – 560 068 Rep. by its Manager 3. The L & T Finance Ltd., No.201, 2nd Floor, 6-3-1085, Rajbhavan Road, Hyderabad – 500 002 Andhra Pradesh ... Respondents (By Sri A.M.Venkatesh, Advocate for R2; R1 and R3 are served but unrepresented) This writ petition is filed under Articles 226 and 227 of Constitution of India praying to set aside the order dated 09.07.2012 passed in Misc. No.54/2011, filed by the petitioner under Order IX Rule 13 CPC., passed by the Court of Fast Track Court-I, Tumkur vide Annexure – C.
This writ petition coming on for Orders, this day, the Court made the following:
O R D E R The present writ petition is filed for issue of writ of certiorari to quash the order dated 09.07.2012 dismissing the Miscellaneous Petition filed by the petitioner in Misc. No.54/2011 under Order IX Rule 13 of CPC before the Fast Track Court-I, Tumkur.
2. Respondent No.1, Sri B.G.Govindaraju filed M.V.C. No.591/2007 claiming compensation against the present petitioner before the Fast Track Court-I & Addl. MACT., Tumkur (for short, ‘Tribunal’). The present petitioner was placed ex parte. After contest by other respondent, the Tribunal by its judgment and award dated 24.12.2010 allowed the petition in part and directed respondent No.1- petitioner herein to pay global compensation of Rs.20,000/- to the claimant with interest at the rate of 6% per annum from date of petition till realization of entire amount and also directed to deposit the amount within the period of two months from the date of award. The claim against respondent No.2-insurance company came to be dismissed.
3. Thereafter the present petitioner filed Miscellaneous Petition No.54/2011 under Order IX Rule 13 of CPC to set aside the ex parte judgment and award dated 24.12.2010 passed by the Tribunal in M.V.C.No.591/2007. The petitioner has stated in his petition that number of cases were filed arising under the same accident and entrusted the matter to the learned Advocate by believing him and handed over the papers, whether petition was filed and contested or not is not known to the petitioner, however, by the order of Tribunal petitioner came to know that he was placed as ex parte. Therefore, petitioner has filed Miscellaneous petition. The said Miscellaneous petition was opposed by the respondent No.2. Notice was served to the claimant, but he has remained absent and was placed ex parte. Though Insurance company has entered appearance, it has not choosen to file its objections. The Fast Track Court-I, Tumkur, considering the entire material on record, by the impugned order dated 09.07.2012 dismissed the petition. Hence the present writ petition is filed.
4. I have heard learned counsel for the parties to the lis.
5. Sri V.B.Siddaramaiah, learned counsel for the petitioner contended that the impugned order passed by the Fast Track Court-I, Tumkur dismissing the Miscellaneous petition is erroneous and contrary to law and is liable to be quashed. He would further contend that the Fast Track Court-I has failed to appreciate that the petitioner is shown as ex parte in the judgment and the petitioner being the owner of the vehicle has insured his vehicle with respondent No.2-Insurance Company. Even though vehicle is insured, respondent No.2 has taken a specific plea that vehicle is not insured. In that circumstance, the dismissal of Miscellaneous Petition is not justifiable. He would further contend that the Court below has failed to appreciate that the vehicle was purchased on the loan given by respondent No.3. The respondent No.3 has paid premium amount of Rs.8,000/- directly to respondent No.2, without giving the money to petitioner, by telling that respondent No.3 is the corporate agent for respondent No.2. The RC book shows that vehicle is hypothecated to respondent No.3. Usually finance company will not give loan to any vehicle without having insurance to the vehicle. The said aspect is not considered by the Fast Track Court-I, Tumkur. Therefore, he sought for setting aside the order passed by the Fast Track Court-I, Tumkur and allow this writ petition.
6. Per contra, Sri A.M.Venkatesh, learned counsel for respondent No.2-Insurance Company sought to justify the impugned order passed by the Fast Track Court-I, Tumkur in dismissing the Miscellaneous petition and contended that though the petitioner had filed Misc. No.54/2011 to set aside the judgment and award dated 24.12.2010 passed in M.V.C.No.591/2007, the petitioner has neither stepped into witness box nor filed an affidavit stating the reasons for his non-appearance on the date of hearing in M.V.C.No.591/2007, wherein he was placed ex parte. The petitioner has not made out any ground to set aside the judgment and award passed by Tribunal. Therefore, he sought for dismissal of the writ petition.
7. Having heard learned counsel for the parties, it is an undisputed fact that petitioner-respondent No.1 herein had filed M.V.C.No.591/2007 claiming compensation on account of the road accident that occurred on 07.11.2006. The present petitioner was placed ex parte before the Tribunal. The Tribunal after considering the evidence of PW1 and on perusal of Exs.P1 to 4, passed the judgment and award dated 24.12.2010 allowing the petition and directed the petitioner herein to pay global compensation of Rs.20,000/- to the claimant with interest at the rate of 6% per annum from date of petition till realization of entire amount. The claim made against the insurance company by the claimant came to be dismissed. The said judgment and award passed by the Tribunal has reached its finality. It is also not in dispute that the present petitioner had thereafter filed Misc. No.54/2011 under Order IX Rule 13 of CPC to set aside the exparte judgment and award passed by the Tribunal in M.V.C.No.591/2007. But the petitioner has not challenged the order placing him exparte during the pendency of the petition.
8. By careful reading of the Miscellaneous petition filed by the petitioner herein, it is clear that number of cases were filed arising on the said petitioner’s accident and the matter was entrusted to learned Advocate by believing him by handing over the papers whether petition was filed and contested or not known to the petitioner. After obtaining the certified copy it reveals that the petitioner was placed exparte. Therefore, the Miscellaneous petition came to be filed. In the entire petition the petitioner has not stated the reason for his absence, which had resulted in passing an exparte order by the Tribunal in MVC No.591/2007. Apart from that, when the petitioner filed Misc. No.54/2011 it is his duty to appraise the Court how he was placed exparte and what is the reason for setting aside the order. The Fast Track Court-I, Tumkur considering the entire material on record and recorded a finding that the petitioner in support of his contentions, has not stepped into witness box and deposed before the Court. He has not filed affidavit stating the reasons for his non-appearance on the date of hearing in MVC No.591/2007. Though the said case was pending about 4 years in the Court, the petitioner would have appeared and filed appearance and not filed Miscellaneous petition for setting aside exparte judgment. The Miscellaneous petition came to be filed only after the award came to be passed.
9. The Fast Track Court-I, Tumkur considering the entire material on record has recorded the findings that:-
“it appears, petitioner wanted to say in para No.5 that he instructed an advocate to appear on his behalf and advocate failed to appear in the said case though all the papers were handed over. Therefore, there was no representation on behalf of petitioner. It is not disclosed by petitioner that what action he had taken against the advocate who was instructed to appear on his behalf and advocate failed to appear in the said case though all the papers were handed over. Therefore, there was no representation on behalf of petitioner. At least had he given any notice to said advocate calling upon him as to why he has not appeared in the said case on his behalf when he was so instructed. No action was taken against the concerned advocate, if really said advocate has not appeared. It appears, petitioner thought that if some allegations are made against his advocate, for not appearing on behalf of the client Court may take lenient view and allow his application. Therefore, blindly allegations made against his advocate without even disclosing the name of said advocate or steps taken against the said advocate for negligence of the duty. It clearly shows that petitioner himself was negligent while prosecuting the matter. It is further recorded that it is not the duty of the Court to search for a policy of insurance in the house of petitioner and thereafter on the basis of said policy, pass orders. He was summoned by the Court to appear in the MVC case. Summons was duly served on him. He was negligent in participating in the Court proceedings. He was not appeared and submitted copy of insurance policy during trial so as to enable Court to pass suitable orders. Conduct of the petitioner shows that for his benefit, he made careless allegations against counsel as well as the Court. Under those circumstances, the petitioner does not deserve any sympathy to set aside the exparte award passed against the petitioner that too after taking of four years time for disposal of the said MVC No.591/2007.”
10. On careful perusal of the entire material on record, the petitioner was not prevented, either from conducting M.V.C.No.591/2007 or Misc. No.54/2011, but absolutely no reasons are assigned for his absence and even he has not stepped into witness box in Fast Track Court-I, Tumkur nor filed any affidavit assigning reasons for his non- appearance and there are no sufficient reasons to set aside the exparte judgment. Therefore, the Fast Track Court has justified in dismissing the application.
11. The petitioner has not made out any ground to interfere with the impugned order passed by the Fast Track Court-I, Tumkur in exercise of power under Articles 226 and 227 of Constitution of India.
Accordingly, writ petition is dismissed.
This order is confined only to the impugned order passed in Misc.No.54/2011.
Sd/- JUDGE KPS