Allowed

New India Assurance Co. Ltd. v. Sri Karegowda

Karnataka HC10 Dec 2020MFA/3399/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the dismissal of a petition under Order 9 Rule 13 CPC. It held the trial court erred in rejecting the ex-parte decree petition and condonation of delay without thorough consideration, causing a miscarriage of justice.

What did the court decide?

The impugned order set aside; MVC Misc. No.122/2007 allowed; Ex-parte award in MVC No.487/2006 set aside for fresh hearing with both parties.

New India Assurance Co. Ltd. Vs Sri Karegowda — Insurance | Karnataka HC (2020)

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M.F.A.No.3399/2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL No.3399/2013

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BETWEEN:

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New India Assurance Co. Ltd., Rep. by Divisional Manager, DO XII, Peenya, Bengaluru – 58.

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Represented by New India Assurance Co. Ltd., M.G. Road, Bengaluru - 560 001 By Manager. …Appellant (By Sri. R. Jaiprakash, Advocate)

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AND:

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Sri.Karegowda

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S/o Madiyappa, Aged about 48 years, R/at Ragimuddanahalli Village, Hebbur Hobli, Tumkur Taluk - 572 101.

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Sri.Rangaswamy S/o Siddaiah,

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M.F.A.No.3399/2013

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Aged about 48 years, Bommanahalli Village, Sririvara Post, Hebbur Hobli, No.10, 3^rd Main Road, Tumkur Taluk - 572 101. …Respondents

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(R1 & R2 - served)

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This MFA is filed under section 43(1)(d) of CPC praying to call for records in MVC Mis. No.122/2007 on the file of Principal Senior Civil Judge MACT-10, Tumkur and set aside the order dated 11.01.2013 to serve the interest of justice.

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This MFA coming on for Hearing this day, the court delivered the following:

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J U D G M E N T

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This appeal arises out of the order of Prl. Senior Civil Judge & MACT-10, Tumkur in MVC Mis. No.122/2007. By the impugned order the trial Court dismissed the petition of the appellant filed under Order 9 Rule 13 of CPC for setting aside the Judgment and award in MVC No.487/2006 passed on 26.07.2007 in favour of respondent No.1.

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M.F.A.No.3399/2013

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Respondent No.1 filed MVC No.487/2006

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before the Prl. Senior Civil Judge & MACT-10, Tumkur against 2^nd respondent and the appellant. In the said case, he contended that on 07.04.2006 at 11.30 a.m. when he was traveling in tractor-trailer bearing registration No.KA06-TA-1450/1451, the said vehicle met with an accident near Kambalalu village, due to rash and negligent driving of the vehicle by the driver and he suffered grievous injuries. He claimed that respondent No.2 was the registered owner of the vehicle and appellant was an Insurer of the said vehicle. Thus he claimed compensation.

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Since none of the respondents appeared before the Tribunal in MVC No.487/2006, the Tribunal proceeded against them exparte. By the Judgment and award dated 07.4.2006 the claim petition was partly allowed granting compensation of Rs.1,64,095/- payable by the appellant.

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The appellant filed MVC Mis. No.122/2007 against the respondents under Order 9 Rule 13 of CPC for

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M.F.A.No.3399/2013

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setting aside the exparte Judgment on the ground that the notice of MVC No.487/2006 was not duly served on it.

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There was delay in filing the petition in MVC Mis. No.122/2017. Therefore the appellant filed IA-I for condonation of delay. The trial Court took up the application for condonation of delay and the main matter in MVC Mis. No.122/2017 together for hearing.

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In support of case of the appellant, its

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employee was examined as PW.1 and Exs.P1 to P3 were marked. On behalf of the respondent no evidence was adduced.

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The appellant contended that the

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tractor/trailer which were meant for agricultural purpose, were used for carrying the passenger i.e., 1^st respondent, thereby, there was breach of provisions of M.V Act. It was contended that the driver did not possess a valid and effective license to drive the vehicle, thereby there was violation of the terms and conditions of the policy and Insurer was not liable to pay the compensation. It was

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M.F.A.No.3399/2013

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further contended that absence of the appellant before the court was for bonafide reasons and if exparte decree is not set aside and opportunity is not given to the appellant to contest the case that leads to miscarriage of justice.

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The Trial Court by impugned order rejected the petition under Order 9 Rule 13 of CPC on the ground that as per the evidence of PW1, notice in MVC 487/2006 was served, therefore the ground set up for setting aside the ex-parte decree and for condonation of delay were unacceptable.

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The learned counsel for appellant made available the copies of the petition, deposition of PW1 in MVC Mis. No.122/2017 and the award in MVC No.487/2006 for perusal of this Court. The award in MVC No.487/2006 shows that respondent No.1/ claimant himself admitted that accident took place while he was traveling in the tractor/ trailer which was meant for agricultural use.

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Secondly in the petition, the appellant herein had not claimed that the notice was not served on the

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M.F.A.No.3399/2013

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Insurance Company, but had claimed that the summons

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was not duly served. In his cross examination PW1 admitted that the notice was served. But in the chief examination he had stated that the summons was not duly served.

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Order IX Rule 13 of CPC provides to setting

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aside an exparte decree on the following two grounds:

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(1) If the defendant was not duly served.

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(2) If he was prevented for any sufficient cause from appearing before the Court when the case was called on for hearing.

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Respondent No.1 though opposed the petition

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did not enter the witness box affording an opportunity to the appellant to cross examine him regarding service of notice. The Trial Court without assigning any reason for rejecting the claim of the petitioner for condonation of delay, at one stroke, rejected the prayer to condone the delay and the petition both.

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The trial Court failed to notice that the funds

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of the Insurer/appellant herein are public funds. By rejection of the petition to set aside the exparte decree,

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M.F.A.No.3399/2013

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the Trial Court blocked the opportunity to the appellant to present its defence regarding unauthorised travelling in a vehicle meant for agricultural purpose. If accepted, the said defence saves the appellant of serious financial implication.

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For the aforesaid reasons this court is satisfied that the dismissal of the petition under impugned order has caused miscarriage of justice to the appellant. Therefore the appeal is allowed.

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The impugned order of the Tribunal is hereby set aside. MVC Misc.No.122/2007 on the file of the Principal Senior Civil Judge & MACT-10, Tumkur is hereby allowed. Ex-parte award dated 26.07.2007 in MVC No.487/2006 passed by the Tribunal is hereby set aside.

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The Tribunal shall readmit MVC No.487/2006 to the

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file and dispose of the same by giving opportunity to both the parties in accordance with law.

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LL/ VN

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Sd/JUDGE

New India Assurance Co. Ltd. v. Sri Karegowda

Case brief

What is this about?

What did the court decide?

New India Assurance Co. Ltd. v. Sri Karegowda

Case brief

What is this about?

What did the court decide?

What the court decided

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