*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+M.A.C.M.A. No.214 of 2011
% Dated 21.01.2014
Between:
# M/s United India Insurance Company Limited. ...Appellant
and
$ Survi Pochaiah and others ….Respondents ! Counsel for the Appellant : Sri E.Venugopal Reddy ^ Counsel for respondents 1 to 4 : Sri G.Anandam Counsel for respondent No5 : None Appeared < GIST:
>HEAD NOTE:
? Cases referred: -Nil-
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.214 OF 2011
JUDGMENT:
The M/s United India Insurance Company Limited-2nd respondent, in the claim petition, filed this appeal having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal–cum-I Additional Chief Judge, City Civil Court, Secunderabad, (for short, ‘Tribunal’) in M.V.O.P.No.317 of 2006 dated 30.12.2006, awarding compensation of Rs.3,12,000/-(Rupees three lakh twelve thousand only) with interest at 7.5% p.a. as against the claim of the claimants viz., father, brothers and sister of the deceased by name Survi Swaroopa out of Rs.4,00,000/-(Rupees four lakh only), in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).
2. Heard Sri E.Venugopal Reddy, the learned standing counsel for the appellant-Insurance Company. Sri G.Anandam, counsel for respondent Nos.1 to 4-claimants and the appeal against 5th respondent- owner of crime vehicle served with notice is called absent with no representation and thus taken as heard the 5th respondent for the absence to decide on merits and perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
3 . The contentions in the grounds of appeal as well as submissions during course of hearing in nutshell are that the Judgment and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case that the Tribunal erred in not giving a finding against the respondent as insurer of the crime lorry though the lorry was not covered by any insurance also as on the date of accident that took place on 20.08.2006 even from the insurance particulars mentioned in the cause title of 2nd respondent in claim petition as valid from 22.08.2007 till 22.08.2007 and that thereby to set aside the award of the Tribunal on that ground against the Insurer and also on the other grounds of the quantum is excessive, exorbitant and unsustainable and no way just.
4. Whereas, respondents 1 to 4 to the appeal contended that having suffered the ex parte decree and failed to produce any particulars it is not left open to contend that the Insurer is not liable much less by taking any mistaken mention of the dates of the validity of the policy instead of showing as on the date of the policy was in force and thereby sought for dismissal of the appeal.
5. Now the points that arise for consideration in the appeal are:
1. Whether there are any grounds to set aside the award of the Tribunal much less to interfere with the quantum of compensation or on the finding against the Insurer?
2. To what result?
POINT-1:
6. The facts are that on 20.08.2006 at about 2.30 A.M., while the deceased Sarvi Swaroopa was travelling as pillion rider along with his son from Bhuvanagiri to Kundanapalli village and when they reached near Gudur village bridge, one lorry bearing No.AP 24 U 9207, came from behind the TVS of the deceased, being driven by its driver in rash and negligent manner at high speed, dashed to the TVS of the deceased, as a result, the deceased sustained grievous injuries and while undergoing treatment in NIMS hospital, Panjagutta, she succumbed to injuries on 24.08.2006, which occurrence is covered by Ex.A.1 FIR and Ex.A.4 charge sheet. The Tribunal basing on the oral and documentary evidence on record, taking into consideration of all aspects in all awarded compensation of Rs.3,12,000/- with interest at 7.5%p.a. against respondent Nos.1 and 2 jointly and severally.
8. In fact, this matter went a checkered litigation from the facts that in the O.P. filed as No.317 of 2006 for the accident dated 20.08.2006, as can be seen from the particulars of the award of the Tribunal, the respondents i.e. so called owner and Insurer remained ex parte and the ex parte decree was passed thereby on 30.12.2006. On perusal of the ex parte decree shows from para-9 having considered oral testimony of P.Ws.1 and 2 coupled with Exs.A.1 FIR, A.4 charge sheet and Ex.A.6 MVI report, it is noticed the accident took place due to rash and negligent driving of the driver of the crime lorry and at para-11 that the 2nd respondent as Insurer is also liable to answer the claim of the claimants thereby owner and Insurer jointly and severally liable. In the award practically there are no particulars of the policy and its substance mentioned. However, the fact remains the application to set aside ex parte decree invoking Order IX Rule 13 C.P.C. filed by the Insurer, as can be seen from appeal contention of this appeal, since allowed though the particulars of the I.A. number not furnished stated ended in dismissal and against which they filed C.R.P.No.13614 of 2008. It is averred that when the summons were served in the O.P.317 of 2006 the matter was entrusted to advocate by name R.Sridhar to appear, however there was no representation in setting the Insurer ex parte and in passing the award by the Tribunal. It is further averred that the CRP was also withdrawn on 18.07.2008 by the erstwhile counsel of the Insurer and it was not intimated but for they came to know on subsequent enquiry of withdrawal without consent or reasons. It is averred that only on filing of Execution Petition by the claimants in E.P.No.22 of 2008 before the Tribunal to execute the ex parte decree they came to know and thereby filed this appeal with delay condonation application, hence, delay to condone in entertaining the appeal. From these particulars against the ex parte decree ended in dismissal revision filed that was withdrawn and the present appeal is filed.
8. Now coming to the maintainability of the appeal under the provisions of the CPC having filed application to set aside the ex parte decree and by impugning the same since dismissed, it is submitted that apart from the appeal is maintainable from dismissal of the ex parte decree by treating as rejection under Order XLIII C.P.C. as a C.M.A. to maintain the appeal, though the C.P.C. applies to the Act once there is a specific provision covered by section 173 of the MV Act which speaks against any award, appeal lies and even the award was ex parte, the remedy is by appeal under Section 173 and not by revision thereby the filing of the application under Order IX Rule 13 or its dismissal or filing revision under Section 115 of Cr.P.C. or its withdrawal no way bar. A perusal of section 173 of M.V.Act is also crystal clear being a special law which overrides the general provisions of C.P.C. to the extent covered by specific provision, the appeal lis is sustainable. However, to decide the appeal, it is bereft of particulars to appreciate the contention of the policy not covered the risk, for such a policy if in subsistence in showing as on date of accident, there was no policy filed. In fact, the claimants as respondents submit that the policy was in force and it covers the risk. It is the proper remedy left open to the appellant-Insurer, to call for Insurance particulars from the claim petition 1st respondent-owner of the vehicle, if at all, and for that they did not issue any notice to know such particulars. Thus, without which the lis cannot be possible to decide. Having regard to the above, it is a fit case by entertaining and disposing of the appeal by remanding the same to the Tribunal to restore the O.P.No. 317 of 2006 to file and keep the amount already deposited by the Insurer to the credit of the O.P. without permitting any parties, save to the extent, if any, already permitted, by investing in Fixed Deposit till fixing the liability of the Insurer, if any, by giving fresh notice to the parties with opportunity to file counter and rejoinder if any and to record evidence since the ex parte evidence on record in the absence of the respondents once the matter is remanded is of no avail. Accordingly, the Point No.1 is answered.
POINT -2:
9. Accordingly and in the result, the appeal is disposed of by setting aside the ex parte decree dated 30.12.2006 by remanding the matter to restore the O.P. before Tribunal to proceed according to law by issuing notice to the parties to appear and contest. It is need less to say the claimants as well as the Insurer appearing herein without further notice shall appear before the Tribunal on 03.04.2014 so that meanwhile the matter be reached there to fix a date.
Dr. B. SIVA SANKARA RAO, J
Date: 21-01-2014
Vvr
Note: L.R. copy to be marked yes/no
(b/o) Vvr