Ajayakumar v. Rejina

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940** **OP (MAC).No. 141 of 2018** **AGAINST THE ORDER DATED 22.09.2018 IN I.A.NOS.1682 & 1683 OF 2017 IN OPMV 192/2013 of MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **PETITIONER/RESPONDENT:** **AJAYAKUMAR AGED 42 YEARS S/O UNNIKRISHNAN, SREE SADANAM, KARALAKAM WARD, ALAPPUZHA.** **BY ADVS. DR.V.N.SANKARJEE SMT.ARYA BALACHANDRAN SMT.M.SUSEELA SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SRI.S.SIDHARDHAN SRI.SUDHAKARAN V. SRI.V.N.MADHUSUDANAN** ## **RESPONDENT :** **REJINA AGED 38 YEARS W/O SHABU, KUNNEPADAM COLONY, NORTH ARYAD P.O., WARD NO.11, MANNANCHERY, ALAPPUZHA-688 538.** **BY ADVS. SRI.A.R.DILEEP SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.J.JOE PAUL** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (MAC).No. 141 of 2018** **2** ## **JUDGMENT** The petitioner was arrayed as the sole respondent in O.P.(MV)No.192 of 2013 on the file of the Motor Accidents Claims Tribunal, Alappuzha, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the respondent herein, who sustained injuries in a motor accident, which occurred on 30.11.2010, involving a motorcycle bearing registration No.KL-04/S-3414 owned and ridden by the petitioner. Despite service of notice, the petitioner did not enter appearance before the Tribunal. Hence, the Tribunal passed Ext.P3 ex-parte award dated 16.01.2017 awarding a total compensation of Rs.64,860/- together with interest at the rate of 9% per annum from the date of petition, i.e., 21.03.2013, till realisation with proportionate cost, payable by the petitioner herein. 2. The petitioner filed I.A.No.1682 of 2017 in O.P. (MV)No.192 of 2018 seeking an order to set aside Ext.P3 ex-parte award. The said interlocutory application, which **OP (MAC).No. 141 of 2018** **3** is placed on record as Ext.P5, was accompanied by I.A.No.1683 of 2017, which is placed on record as Ext.P6, for condonation of delay of 125 days in filing the former application. The Tribunal passed Ext.P8 order dated 10.08.2018 in I.A.No.1683 of 2017, whereby the said interlocutory application for condonation of delay was allowed on condition of the petitioner herein depositing half of the award amount as per Ext.P3 exparte decree, within two weeks. It was made clear that on default, the said interlocutory application will stand dismissed with cost. Consequently, the Tribunal passed Ext.P7 order dated 10.08.2018 in I.A.No.1682 of 2017 filed for setting aside Ext.P2 award, posting the matter to 30.08.2018 to report deposit of cost. Since the petitioner failed to comply with the condition stipulated in Ext.P8 order, the Tribunal by Exts.P9 and P10 orders dated 10.08.2018 dismissed I.A.No.1682 of 2017 and I.A.No.1683 of 2017. Feeling aggrieved by Exts.P7 to P10 orders, the petitioner has filed this original petition, **OP (MAC).No. 141 of 2018** **4** invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside those orders and directing the Tribunal to conduct trial of O.P.(MV)No.192 of 2013 in accordance with law, after making the insurer a party and affording the petitioner an opportunity to file written statement and to lead evidence. 3. On 12.12.2018, when this original petition came up for admission, this Court admitted the matter on file. Urgent notice by speed post was ordered to the respondent, returnable within three weeks. 4. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 5. The sole issue that arises for consideration in this original petition is as to whether any interference is warranted on Exts.P7 to P10 orders of the Tribunal on the interlocutory applications filed in O.P.(MV)No.192 of 2013 for setting aside Ext.P3 award dated 16.01.2017 and also to condone the delay of 125 days in filing the **OP (MAC).No. 141 of 2018** **5** former application. 6. By Ext.P8 order dated 10.08.2018, I.A.No.1683 of 2017 filed by the petitioner seeking condonation of delay of 125 days in filing I.A.No.1682 of 2017 to set aside Ext.P3 ex-parte award in O.P.(MV)No.192 of 2013 was allowed on condition that the petitioner shall deposit half of the award amount as per the said award, within two weeks. Based on the said order, consequential order was passed on I.A.No.1682 of 2017, vide Ext.P7 order. As the petitioner failed to comply with the condition stipulated in Ext.P8 order, both interlocutory applications were dismissed for default by Exts.P9 and P10 orders dated 22.09.2018. 7. As per Ext.P3 award, the Tribunal awarded a total compensation of Rs.64,860/- to the respondent claimant together with interest and cost and the condition stipulated by the Tribunal in Ext.P8 order to condone the delay of 125 days in filing I.A.No.1682 of 2017 is to deposit half of the award amount as per **OP (MAC).No. 141 of 2018** **6** Ext.P3 ex-parte award. 8. In _**M/s.Peeves Enterprises and another v. Muhammed Ashraf (2015 (3) KHC 981)**_ a Division Bench of this Court held that, in an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 the court has to find out whether the erring party has made out sufficient cause for setting aside the ex-parte decree. When no negligence or inaction is imputable to the erring party and the absence was not malafide or intentional, discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs but any such condition shall not be too onerous. In the said decision the condition requiring deposit of 25% of the decree amount was held to be highly onerous and unsustainable. Paragraphs 14 to 17 of the said decision read thus: _14. In_ _**G.P. Srivastava** v._ _**R.K. Raizada and others (2000 (3) SCC 54)** , the Apex Court held that the word “was prevented by any sufficient cause from appearing”_ **OP (MAC).No. 141 of 2018** **7** _occurring in Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The Apex Court held further that where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. Para.7 of the judgment in_ _**G.P. Srivastava's case** (supra) reads thus:_ - _“7. Under Order 9, Rule 13, C.P.C. an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties_ **OP (MAC).No. 141 of 2018** **8** _particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.”_ _15. In_ _**Vijay Kumar Madan and others** v._ _**R. N. Gupta Technical Education Society and others** ,_ _**(2002 (5) SCC 30)** interpreting the provisions in Order IX Rule 7 of the CPC, the Apex Court held that terms imposed by the court on the defendant assigning good cause for previous non-appearance should not be too onerous or vague nor should they have the effect of prejudging the_ **OP (MAC).No. 141 of 2018** **9** _controversy involved and automatically decreeing the suit even though the ex parte order is set aside. The Apex Court held further that, costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. Paragraphs 7 and 8 of the judgment in_ _**Vijay Kumar Madan's case** (supra) read thus:_ _“7. Power in the Court to impose costs and to put the defendant-applicant on terms is spelled out from the expression "Upon such terms as the Court directs as to costs or otherwise". It is settled with the decision of this Court in Arjun Singh vs. Mohinder Kumar and Ors., AIR 1964 SC 993, that on an adjourned hearing, in spite of the Court having proceeded, ex parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and re-open the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearings into biparte. While exercising power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the_ **OP (MAC).No. 141 of 2018** **10** _garb of exercising power of placing upon terms make an order which probably the Court may not have made in the suit itself. As pointed out in the case of Arjun Singh (supra), the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation._ _8. Costs should be so assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by relegating back the proceedings to an earlier stage. The terms which the Court may direct may take care of the time or mode of proceedings required to be taken pursuant to the order under Rule 7. For example, keeping in view the conduct of the defendantapplicant, the Court may direct that though the ex-parte proceedings are being set aside, the defendant must file the written statement within an appointed time or recall for cross-examination at his own cost and expenses the witnesses examined in his absence or that the defendant shall be allowed not more than one opportunity of adducing his evidence and so on. How the terms are to be devised and made a part of the order would depend on the facts and circumstances of a given case. In short, the Court cannot exercise its power to put the defendant/applicant on such terms as may have the effect of pre-judging the controversy involved in the suit and virtually decreeing the suit though ex-parte order has been set aside or to put the parties on such terms as may be too_ **OP (MAC).No. 141 of 2018** **11** _onerous. .......... ........”_ _16. On an application filed under Order IX Rule 13 of the Code, the court has to find out whether the erring party has made out sufficient cause for setting aside the ex parte decree. When no negligence or inaction is imputable to the erring party and the absence was not malafide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous._ _17. In the case on hand, the suit was posted to 16.7.2013 for taking steps as a last chance and thereafter it was ordered to be included in the list for the first time on 1.11.2013. On 1.11.2013 and also on the subsequent posting date, i.e., 7.11.2013, there was no representation on behalf of the appellants/defendants and therefore they were set ex parte on 7.11.2013 and an ex parte decree was also passed on 22.11.2013. Immediately thereafter, within the prescribed time limit, the appellants/defendants filed I.A.No.1886 of 2013, under Order IX Rule 13 of the Code, to set aside the ex parte decree passed in O.S.No.256 of 2008. The reason stated in the affidavit accompanying the said interlocutory application is the mistake committed by the clerk attached to the office of the counsel for the appellants/defendants in correctly noting down the posting date. The respondent/plaintiff contended that the appellants/defendants and their counsel before the_ **OP (MAC).No. 141 of 2018** **12** _court below were fully aware of the listing of the case to 7.11.2013 and that they remained absent with an intention to delay the final disposal of the case. But, we are unable to draw an inference from the pleadings on record that the absence of the appellants/defendants on those days was either malafide or intentional. There is also no material to indicate that the attempt of the appellants/defendants was intended to protract the suit indefinitely. Considering the facts and circumstances of the case on hand, we find that the condition imposed by the trial court that the appellants should pay 25% of the decree amount as a pre-condition to set aside the ex parte decree for an amount of 1 Crore with 6% interest₹ from the date of suit till realisation is too onerous and the trial court ought not to have imposed such a condition for setting aside the ex parte decree and judgment.”_ 9. In the light of the law laid down in the decision referred to supra, conclusion is irresistible that the condition imposed by the Tribunal in Ext.P8 order dated 10.08.2018 for setting aside Ext.P3 ex-parte award warrants interference in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Having considered the submissions made by the learned counsel on both sides **OP (MAC).No. 141 of 2018** **13** and perusing the pleadings and materials on record, this Court finds that the impugned orders can be set aside on payment of a cost of Rs.10,000/- on the petitioner. In such circumstances, this original petition is disposed of by setting aside Exts.P7 to P10 orders of the Tribunal on payment of a cost of Rs.10,000/-, which shall be paid by the petitioner to the respondent by depositing the same before the Tribunal, within two weeks from the date of receipt of a certified copy of this judgment. On such payment, the petitioner shall file a memo before the Tribunal and thereafter, the Tribunal shall allow I.A.No.1683 of 2017, thereby condoning the delay of 125 days in filing I.A.No.1682 of 2017 for setting aside Ext.P3 ex-parte award in O.P.(MV)No.192 of 2013; and also I.A.No.1682 of 2017 filed for setting aside Ext.P3 ex-parte award. Thereafter, the claimant shall file an application to implead the insurer of the vehicle as additional respondent in O.P.(MV)No.192 of 2013 and the Tribunal shall proceed with the claim **OP (MAC).No. 141 of 2018** **14** petition and dispose of the matter, after affording a reasonable opportunity to the insurer to file written statement and contest the matter. Since the claim petition is of the year 2013, the Tribunal shall dispose of the matter, as expeditiously as possible, at any rate, within a period of four months from the date of appearance of the insurer. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/31/1 **OP (MAC).No. 141 of 2018** **15** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE CLAIM PETITION DATED 22.2.2013 IN O.P.(MV) NO.192/2013 ON THE FILE OF THE MACT, ALAPPUZHA.** - **EXHIBIT P2 TRUE COPY OF THE INSURANCE POLICY DATED 23.4.2010 ISSUED BY THE NATIONAL INSURANCE CO. LTD.** - **EXHIBIT P3 TRUE COPY OF THE EX PARTE AWARD DATED 16.1.2017 IN O.P.(MV) NO.192/2013 PASSED BY THE MACT, ALAPPUZHA.** - **EXHIBIT P4 TRUE COPY OF THE EXECUTION PETITION E.P.NO.97/2017 DATED 15.4.2017 FILED BY THE RESPONDENT IN O.P.(MV) NO.192/2013 ON THE FLE OF THE MACT, ALAPPUZHA.** - **EXHIBIT P5 TRUE COPY OF I.A.NO.1682/17 DATED 22.5.2017 FILED BY THE PETITIONER IN O.P. (MV)NO.192/2013 IN THE MACT, ALAPPUZHA.** - **EXHIBIT P6 TRUE COPY OF I.A.NO.1683/17 DATED 22.5.2017 FILED BY THE PETITIONER IN O.P. (MV) NO.192/2013 IN THE MACT, ALAPPUZHA.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 10.8.2018 IN I.A.NO.1682/17 IN O.P.(MV) NO.192/2013 PASSED BY THE MACT, ALAPPUZHA.** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 10.8.2018 IN I.A.NO.1683/17 IN O.P.(MV) NO.192/2013 PASSED BY THE MACT, ALAPPUZHA.** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 22.9.2018 IN I.A.NO.1682/17 IN O.P.(MV) NO.192/2013 PASSED BY THE MACT, ALAPPUZHA.** - **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 22.9.2018 IN I.A.NO.1683/17 IN O.P.(MV) NO.192/2013 PASSED BY THE MACT, ALAPPUZHA.**