BABU K.U. v. Pradeep and Oriental Insurance Co. Ltd. and Limesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941 OP (MAC).No. 1354 of 2012** **AGAINST THE ORDER IN I.A.No.1076 OF 2011 IN O.P.(MV)No.325 OF 2006 DATED 05.11.2011** & **ORDER IN I.A.NOS.1188 OF 2011 AND 1189 OF 2011 IN OPMV 325 OF 2006 DATED 21.11.2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THODUPUZHA.** ## **PETITIONER:** **BABU K.U., AGED 37 YEARS,S/O.ULAHANNAN, KULATHINKAL HOUSE, KESAVAMUNI KARA,IDUKKI VILLAGE, IDUKKI.** **BY ADVS. SRI.JOICE GEORGE SRI.LIJI.J.VADAKEDOM** ## **RESPONDENTS:** **1 PRADEEP, KEECHARIL HOUSE, IDUKKI COLONY.P.O., IDUKKI-685602.** **2 THE ORIENTAL INSURANCE CO.LTD REPRESENTED BY ITS BRANCH MANAGER, THODUPUZHA-685584.** **3 LIMESH, S/O.SURENDRAN, KOZHANETHU HOUSE, MARIYAPURAM,IDUKKI-685602.** ## **BY SRI.VPK.PANICKER** **SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 03.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (MAC).No.1354 of 2012** -2- ## **JUDGMENT** The petitioner, who is the claimant in O.P.(MV)No.325 of 2006 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Exts.P8 and P8(a) orders in I.A.No.1189 of 2011 and I.A.No.1188 of 2011 in O.P.(MV) No.325 of 2006 dated 21.11.2011 and a direction to the Tribunal to consider and pass orders on merits in Exts.P7 and P7(a) interlocutory applications. The petitioner has also sought for an order directing the Tribunal to allow Exts.P7 and P7(a) applications. The additional relief sought for in this original petition is an order to set aside Ext.P6 order dated 05.11.2011 of the Tribunal in I.A.No.1076 of 2011 in O.P. (MV)No.325 of 2006 [wrongly stated as Ext.P5 in relief No. (d)]. 2. On 12.04.2012, when this original petition came up for admission, this Court admitted the matter on file. Urgent notice was ordered to respondents 1 and 3, **OP (MAC).No.1354 of 2012** -3- returnable in ten days. The learned counsel took notice for the 2[nd] respondent. 3. Heard the learned counsel for the petitioner and also the learned counsel for the 2[nd] respondent insurer. Despite service of notice, none appears for respondents 1 and 3. 4. The sole issue that arises for consideration in this original petition is as to whether any interference is warranted on Exts.P8 and P8(a) orders passed by the Tribunal. 5. The pleadings and materials on record would show that the petitioner filed O.P.(MV) No.325 of 2006 claiming compensation on account of the injuries sustained in a motor accident, which occurred on 28.04.2005, involving a vehicle, which was owned by the 1[st] respondent, insured with the 2[nd] respondent and driven by the 3[rd] respondent. In Ext.P1 claim petition, the petitioner claimed a total compensation of Rs.1,90,000/-. The 2[nd] respondent insurer filed a written statement, opposing the reliefs **OP (MAC).No.1354 of 2012** -4- sought for in the claim petition. On 18.08.2011, when the claim petition was taken up for consideration, the petitioner was absent and he has not taken steps to serve notice on the 3[rd] respondent, despite the order dated 27.07.2011. Hence the original petition was dismissed by Ext.P3 award dated 18.08.2011. 6. The petitioner filed I.A.No.1076 of 2011 in O.P. (MV) No.325 of 2006 seeking an order to restore that claim petition, by setting aside Ext.P3 award dated 18.08.2011. The said interlocutory application was accompanied by I.A. No.1077 of 2011 seeking an order to condone the delay of 21 days. Copy of the aforesaid interlocutory applications are placed on record as Exts.P4 and P4(a) respectively, in this original petition. I.A.No.1078 of 2011 is an application filed under the provisions of Order IX Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 and I.A. No.1076 of 2011 is one filed under Section 5 of the Limitation Act, 1963. 7. By Ext.P5 order dated 05.11.2011, the Tribunal **OP (MAC).No.1354 of 2012** -5- allowed I.A. No.1077 of 2011, as there was no objection by the 2[nd] respondent insurer; thereby condoning the delay of 21 days in filing I.A. No.1078 of 2011. However, by Ext.P6 order dated 05.11.2011, the Tribunal dismissed I.A. No.1076 of 2011, stating that, O.P.(MV) No.325 of 2006 was dismissed on 18.08.2011 since the petitioner failed to take step for service of notice on the 3[rd] respondent as per orders dated 24.05.2011, 10.06.2011 and 27.07.2011. Ext.P3 order was passed under Order IX Rule 5(1) of the Code of Civil Procedure, which is not liable to be set aside under Order IX Rule 9 of the Code. 8. After Ext.P6 order of the Tribunal in I.A.No.1076 of 2011, the petitioner filed I.A.No.1189 of 2011 under order IX Rule 6, read with Section 151 of the Code of Civil Procedure, seeking an order to set aside Ext.P3 order dated 18.08.2011 in O.P.(MV)No.325 of 2006. The said interlocutory application was accompanied by I.A.No.1188 of 2011 seeking an order to condone the delay of 49 days in filing the former application. The Tribunal by Ext.P8 order **OP (MAC).No.1354 of 2012** -6- dated 21.11.2011 dismissed I.A.No.1189 of 2011, as not maintainable, as I.A.No.1076 of 2011 filed for this purpose has already been dismissed by Ext.P6 order dated 05.11.2011. For the very same reason, the Tribunal by Ext.P8(a) order dated 21.11.2018 rejected I.A.No.1188 of 2011 filed by the petitioner for condonation of delay. 9. In **Sreedevi Vilasom Chitty Fund, Karunagappilly and another v. Labour Court, Kollam and another [2015 (3) KHC 877]** , this Court held that quoting of a wrong provision of law will not disentitle the party to the relief sought for in that application. When the legal requirement under Rule 23 of the Kerala Industrial Disputes Rules, 1957 for a belated application to set aside an ex-parte decision is only to state sufficient cause for extending the time limit of 15 days for making such an application, along with sufficient cause for setting aside the ex-parte decision, quoting of a wrong provision of law, i.e., Order IX Rule 13 of the Code of Civil Procedure in the interlocutory application will not in any manner deprive the **OP (MAC).No.1354 of 2012** -7- Labour Court its powers to grant relief, which that Court is empowered to grant under Rule 23 of the said Rules. Therefore, once the affidavit accompanying the application contains sufficient cause for setting aside the ex-parte decision and also for extending the time limit of 15 days for making such an application, the Labour Court should adjudicate the said application treating as one filed under Rule 23 of the Rules. 10. Viewed in the light of the law laid down in the decision referred to _supra_ , the Tribunal cannot dismiss I.A. No.1076 of 2011 on account of quoting of a wrong provision of law. As already noticed, I.A. No.1076 of 2011 is one filed by the petitioner invoking Order IX Rule 9, read with Section 151 of the Code of Civil Procedure. 11. In **Sudha Chandrasekharan K. v. Sasikala and others [2012 (3) KHC 697]** , in the context of Order IX Rule 5 of the Code of Civil Procedure, this Court held that the court has inherent power under Section 151 of the Code to restore the suit which was dismissed under Order IX Rule **OP (MAC).No.1354 of 2012** -8- ## 5 of the Code. Paragraphs 9 and 11 of the said decision read thus; “9. An application was made by the plaintiffs for restoration of the suit within thirty days from the date of dismissal. The court below thought that in the interests of justice, it was necessary to allow the application. The question is whether the Court has jurisdiction to entertain and allow such an application. Rule 5 does not provide that an application for restoration can be maintained by the plaintiffs. In the case of dismissal of the suit under Rule 2 or Rule 3 of Order IX of the Code of Civil Procedure, Rule 4 specifically provides for two remedies to the plaintiffs: (1) to file a fresh suit, subject to the law of limitation; and (2) to file an application for setting aside the dismissal. Such a provision for making an application for setting the dismissal aside is not provided under Rule 5. On the other hand, Rule 5 only provides for a fresh suit, subject to the law of limitation. Does it mean that the Court has no power at all to restore the suit which was dismissed for default under Rule 5? I do not think that the Court is precluded from restoring a suit dismissed for default under Rule 5 of Order IX of the Code of Civil Procedure. As held in _**Salem Advocate Bar Association's case, [(2005) 6 SCC 344]**_ the period of seven days mentioned in Rule 5 is not mandatory but only directory. If so, the plaintiffs **OP (MAC).No.1354 of 2012** -9- could satisfy the Court that any of the contingencies under clauses (a) to (c) in sub-section (1) is made out, in which event, the Court need not dismiss the suit against a defendant who was not served with summons. The only purposive interpretation that could be placed is that the Court has inherent power to restore the suit which was dismissed under Rule 5 of Order IX of the Code of Civil Procedure. The provision entitling the plaintiffs to file a suit, subject to the law of limitation, is only an enabling provision and it does not exclude the inherent jurisdiction of the Court to restore a suit which was dismissed for default under Rule 5 of Order IX of the Code of Civil Procedure. In a case where the suit was instituted on the last day of limitation, if the suit is dismissed for default under Rule 5 and if it were to be held that under no circumstance an application for restoration is maintainable, it would work out great hardship to the plaintiff. xxx xxx xxx 11. Rule 8 of Order IX of the Code of Civil Procedure provides for dismissal of the suit when the plaintiff does not appear and the defendant appears. Rule 9 of Order IX of the Code of Civil Procedure provides that where a suit is dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But, the plaintiff may apply for an order to set the dismissal aside. If **OP (MAC).No.1354 of 2012** -10- an application under Rule 9 of Order IX of the Code of Civil Procedure is dismissed, the plaintiff may file an appeal under Rule 1(c) of Order XLIII. Similarly, if an exparte decree is passed against a defendant, Rule 13 of Order IX provides for making an application to set aside the exparte decree. Rule 1(d) of Order XLIII provides for an appeal against an order under Rule 13 of Order IX rejecting an application. Where a dismissal of the suit under Rule 2 of Order IX of the Code of Civil Procedure on the failure of the plaintiff to pay court fee or postal charges for service of summons can be set aside by filing an application under Rule 4 of Order IX of the Code of Civil Procedure, it would be very harsh to hold that the plaintiff cannot apply for restoration of the suit dismissed for default under Rule 5. True, the Legislature did not specifically provide for such a remedy in the Code of Civil Procedure. There is no specific bar also. It is well settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to. It is also well settled that the inherent jurisdiction of the Court under Section 151 of the Code of Civil Procedure cannot be exercised so as to nullify the specific provisions of the Code of Civil Procedure. Inherent power of the Court saved under Section 151 of the Code of Civil Procedure can be exercised by the Court to make such orders as may **OP (MAC).No.1354 of 2012** -11- be necessary for the ends of justice or to prevent abuse of the process of the Court. When there is a specific remedy available to a party, he has to take recourse to such remedy and he cannot resort to Section 151 of the Code of Civil Procedure. However, when there is no specific provision dealing with the subject and there is no specific bar for entertaining an application, I do not think that the Court would lack its inherent power to restore a suit which was dismissed for default under Rule 5 of Order IX of the Code of Civil Procedure.” 12. In such circumstances, this original petition is disposed of by setting aside Ext.P6 order dated 05.11.2011 of the Motor Accidents Claims Tribunal, Thodupuzha in I.A.No.1076 of 2011 in O.P.(MV) No.325 of 2006 [wrongly stated as Ext.P5 order in relief No.(d)] and the said interlocutory application is allowed as prayed for, thereby restoring O.P.(MV) No.325 of 2006 into file. 13. The Tribunal shall permit the petitioner to take out notice to the 3[rd] respondent and thereafter proceed with the matter in accordance with law. Since Ext.P6 order has already been set aside and the **OP (MAC).No.1354 of 2012** -12- claim petition is restored to file, no interference is warranted on Exts.P8 and P8(a) orders of the Tribunal in I.A.No.1189 of 2011 and I.A.No.1188 of 2011, since the reliefs sought in those interlocutory applications have become infructuous. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **OP (MAC).No.1354 of 2012** -13- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 PHOTOCOPY OF THE CLAIM PETITION IS O.P.(MV) NO.325/2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA.** - **EXHIBIT P2 PHOTOCOPY OF THE WRITTEN STATEMENT IN O.P.(MV) NO.325/2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL.** - **EXHIBIT P3 CERTIFIED COPY OF THE ORDER DATED 18.08.2011 IN O.P.(MV)NO.325/2006 BEFORE THE MACT.** - **EXHIBIT P4 PHOTOCOPY OF I.A.NO.1076/2011 IN O.P. (MV)NO.325/2006 BEFORE THE MACT, THODUPUZHA.** - **EXHIBIT P4(A) PHOTOCOPY OF THE PETITION-IA 1078/2011 TO SET ASIDE THE DISMISSAL ORDER.** - **EXHIBIT P5 PHOTOCOPY OF THE ORDER DATED 05.11.2011 IN I.A.NO.1077/2011 IN O.P.(MV)NO.325/2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 05.11.2011 IN I.A.NO.1076/2011 IN O.P.(MV)NO.325/2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA.** - **EXHIBIT P7 TRUE COPY OF I.A.NO.1189/2011 IN O.P. (MV)NO.325/2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA.** - **EXHIBIT P7(A) COPY OF THE PETITION TO CONDONE DELAY (I.A.NO.1188/2011) ACCOMPANYING I.A.NO.1189/2011.** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 21.11.2011 IN I.A.NO.1189/2011 IN O.P.(MV)NO.325/2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL.** - **EXHIBIT P8(A) TRUE COPY OF THE ORDER DATED 21.11.2011 IN I.A.NO.1188/2011 IN O.P.(MV)NO.325/2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL.** ## **RESPONDENTS' EXHIBITS: NIL**