Present writ petition has been filed by the petitioner questioning the validity of the order dated 26.7.2010 passed by the Additional District Judge Court, No. 12, Allahabad proceeded to reject the application moved on behalf of the petitioner under Order 9 Rule 13 C.P.C. for setting aside ex-parte award.
Brief background of the case is that petitioner is owner of the vehicle. Said vehicle in question was subject matter of accident on 8.5.1999 on Allahabad -Riwan Road at 2.30 P.M. with Maruti Car. Claim Petition No. 715 of 1999 was filed wherein petitioner was impleaded as opposite party. In the said proceeding so undertaken on account of non appearance of the petitioner, Motor Accident Claim Tribunal/Additional District Judge, Court no. 12, Allahabad formed opinion that in spite of service, petitioner is not appearing, passed order to proceed ex-parte. Award in question was passed on 12.9.2003. In the said award in question Insurance company was asked to make payment and liberty was given to Insurance Company to recover the said amount from the petitioner. Petitioner moved an application for recalling of the said award in question under Order 9 Rule 13 C.P.C. Objections were filed to the said application by the Insurance Company mentioning therein that petitioner was well aware of the proceeding, deliberately chosen not to appear in the proceeding. Motor Accident Claim Tribunal/Additional District Judge, Court no. 12, Allahabad thereafter, has considered the said application and has found that on three occasions by registered post summons have been sent. Envelop, which was available on record has been taken note of. On the first envelop note was made that petitioner has left the house in question and on the second envelop note has been made that in spite of repeated visit and information, petitioner is not meeting and in this regard reminder has been sent. Third envelop which has been sent by the registered post is not returned back. On account of this situation, service was presumed to be sufficient and then order has been passed rejecting the application. At this juncture present writ petition has been filed.
Learned counsel for the petitioner contended with vehemence that once note has been made by the post man and it was informed that petitioner has left the house in question then there was no occasion for the post man to again effect the service on the same address, in such a situation opinion which have been formed is incorrect opinion qua service and as such ex parte award is liable to be quashed.
After respective arguments have been advanced, on which there is no dispute that in the claim petition address of the petitioner as disclosed was Vijay Laxmi wife of Sri Brijlal Kesarwani, Resident of 888A Mutthiganj, District Allahabad. The registered notice has been sent on this very address, even before this court address which have been furnished by the petitioner is Vijay Laxmi wife of Sri Brijlal Kesarwani, Resident of 888A Mutthiganj, District Allahabad. Thus it is accepted position that residential address of the petitioner is Vijay Laxmi wife of Sri Brijlal Kesarwani, Resident of 888A Mutthiganj, District Allahabad. First endorsement on which reliance has been placed by the petitioner, is where post man had been informed that petitioner has left the house in question. Such a situation is neither here nor there once notice has been send on correct address. Said endorsement was clearly procured one. Second endorsement made by the post man shows that envelop has been sent on the correct address as given by the petitioner, and same clearly shows that repeated information was given to the petitioner and in spite of repeated visit and information furnished, petitioner was avoiding service. Third registered notice was also sent on the address which is correct. This is factual situation that notices have been sent on correct address by the registered post and report has been submitted by the post man, then Motor Accident Claim Tribunal/Additional District Judge, Court no. 12, Allahabad rightly proceeded to accept the service to be sufficient in consonance with the provisions of Section 27 of U.P. General Clauses Act as well as General Clauses Act. Once service has been held to be sufficient and petitioner has not entered appearance in the matter and matter proceeded ex-parte, then on the bald statement of fact that petitioner had no knowledge or notice, then this court cannot come to the rescue of the petitioner. Petitioner never contended that post man submitted wrong report and he should be summoned. Objective consideration has been made by the Motor Accident Claim Tribunal/Additional District Judge, Court no. 12, Allahabad and thereafter, opinion have been formed that petitioner had knowledge of proceeding and has failed to turn up in the matter.
Consequently, present writ petition is dismissed.
Dt. 06.12.2010 T.S.