1 A.O. No.72/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO.72 OF 2011 WITH CIVIL APPLICATION NO.5440 OF 2011 Anil s/o Wamanrao Sabnis ... APPELLANT VERSUS Manohar s/o Madanlal Rathi & ors. ... RESPONDENTS ..... Shri A.D. Kasliwal, Advocate for the appellant Shri S.C. Sarda, Advocate for respondent No.1 Shri M.K. Kulkarni, Advocate for respondent No.2 ..... CORAM : S.S. SHINDE, J. DATED : 25th July, 2011. PER COURT : 1. This Appeal from Order takes exception to the order dated 29.1.2011, passed by Additional Sessions Judge-4, Aurangabad below Exh. 1 in M.A.R.J.I. No.197/2010. 2. It is the case of the appellant herein that the respondent No.1 herein filed Motor Accident Claim Petition No. 205/2006 on 11.9.2006 under Section 166 of the Motor Vehicles Act before the Motor Accident Claims Tribunal, Aurangabad on account of death of his father namely Madanlal. The said matter was proceeded against the appellant vide order dated 11.9.2006. 2 A.O. No.72/2011 As per the report of bailiff at Exhibit A, the appellant refused to accept the summons. The said matter further proceeded exparte against respondent No.3 herein and the order dated 22.9.2009 shows that respondent No.3 served through appellant as appellant refused, hence matter proceeded exparte against present respondent No.3. 3. On 12.12.2009, the respondent No.1 examined himself and other two witnesses and the Motor Accident Claims Tribunal was pleased to deliver judgment in the said Motor Accident Claim Petition No.205/2006, on 12.12.2009. 4. On 30.7.2010, the appellant and respondent No.3 were served with the notice of execution in respect of the judgment and award in Motor Accident Claim Petition No.205/2006 and on that date only the appellant and the respondent No.3 could get the knowledge of the said judgment and award. 5. The appellant and the respondent No.3 herein filed application under Order 9 Rule 13 of the Civil Procedure Code before the Motor Accident Claims Tribunal at Aurangabad. The said petition came to be registered as M.A.R.J.I. No.197/2010. At the time of filing the said petition, the appellant and the respondent No.3 moved application for grant of stay to the execution and 3 A.O. No.72/2011 operation of the judgment and award. Accordingly, stay was granted and it remained in operation till disposal of M.A.R.J.I. No. 197/2010. 6. The respondent No.1 herein, in response to the notice, appeared in the said matter. The respondent No.1 filed his say and prayed for rejection of the M.A.R.J.I. No.197/2010. 7. On 29.1.2011, the Tribunal, after hearing the parties, partly allowed the said M.A.R.J.I. and set aside the judgment and award passed in Motor Accident Claim Petition No.205/2006 qua respondent No.3 herein and rejected the application of the present appellant. Hence this Appeal from Order. 8. The matter is taken up for final hearing with the consent of the parties. The learned counsel appearing for the respondent No.1 argued the matter at length. The counsel appearing for respondent No.2 Insurance Company submits that, he has nothing to say in the present matter. 9. The learned counsel appearing for the appellant submits that though the Tribunal has concluded that the appellant herein was served through bailiff and to that effect bailiff report is there, the mandate of Order 5 Rule 19 of the Civil Procedure Code 4 A.O. No.72/2011 has not been followed. The affidavit of the bailiff is not filed or bailiff is not examined and, therefore, the said procedure under Order 5 Rule 19 of the Civil Procedure Code has not been followed. He further submitted that the exparte award was against the appellant and the respondent No.3 herein. It is exparte award and after it is set aside qua respondent No.3, necessarily it should have been set aside even in case of present appellant being indivisible award. According to the learned counsel for the appellant, unless the act of rashness and negligence is proved qua respondent No.3, there is no question of fastening any liability on the appellant who is alleged to be the owner of the vehicle. The learned counsel invited my attention to the judgment of the Supreme Court in case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla & Ors. [ 2007 (5) Supreme 370 : 2007 (8) JT 575 : 2007 (7) Scale 725 ] and in particular para 10 of the said judgment. Relying on the said paragraph, the learned counsel for the appellant would contend that, proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for entertaining application under Section 166 of the Motor Vehicles Act, therefore, the exparte award passed by the Tribunal is not sustainable. In support of his contention that the award passed by the Tribunal is indivisible and if it is set aside qua respondent No.3 herein, in that case, in case of present appellant also the said 5 A.O. No.72/2011 exparte award is required to be set aside, he pressed into service the reported judgment of this Court in case of Vasant Jaiwantrao Mahajan Vs. Tukaram Mahadhaji Patil [ 1960 BCI (0) 134 ]. So far contention of the learned counsel for the appellant that there is non compliance of Order 5 Rule 19 of the Civil Procedure Code, he placed reliance on the reported judgment of this Court in case of G.S. Ramchandran Vs. M.M. Rajadhyaksha [ 1984 Mh.L.J. 247 ]. Therefore, relying on aforesaid provisions of the Civil Procedure and pronouncements of the Hon’ble Supreme Court and this Court the learned counsel for the appellant would submit that the impugned judgment and order is liable to be set aside. 10. The learned counsel appearing for the respondents submits that, merely because of the technicalities or merely because procedure is not followed, the decree cannot be set aside. In support of his aforestated contention, he invited my attention to second proviso of Rule 13 of Order 9 of the Civil Procedure Code and submitted that, no decree can be set aside on technical grounds. Therefore, in his submission, the appellant can be directed to deposit the amount under award. It is further submitted that, the incident in question took place in the year 2005 and the respondent Nos.1 and 2 are awaiting outcome of their application 6 A.O. No.72/2011 for long six years. He further submitted that the respondent No.3 herein was served through appellant and appellant was also served. The bailiff report is on record and the Tribunal has appreciated the report and after that, the impugned orders came to be passed. Therefore, this Court may not interfere. 11. Upon hearing learned counsel appearing for the appellant and learned counsel appearing for the respondents, I am of the opinion that the award which was passed by the Motor Accident Claims Tribunal was indivisible and when it was set aside qua respondent No.3, necessarily the same order should have been followed in case of appellant herein. Order 5 Rule 19 of the Civil Procedure Code reads as under : “19. Examination of serving officer.-- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.” 12. It is admitted position in this case that, though there is a report of the bailiff, however, the affidavit of the bailiff is not on record or the bailiff is not examined before the Tribunal. Therefore, it can be safely concluded that mandate of Order 5 Rule 19 of the 7 A.O. No.72/2011 Civil Procedure Code has not been followed and as a result, the contention of the counsel for the appellant that if that mandate is not followed, in that case, there is no service of summons on the appellant, is required to be accepted. It is further contention of the counsel for the appellant that even the summons which was allegedly issued, in that the occupation of the appellant was written as Advocate and the name of the respondent No.3 was written Abhay instead of Ameya. 13. It is not in dispute that, if there is exparte decree, the aggrieved person has remedy either to file appeal or civil suit or application under Order 9 Rule 13 of the Civil Procedure Code for setting aside the said decree. The said point is concluded by the Hon’ble Supreme Court in case of Mahesh Yadav & anr. Vs. Rajeshwar Singh & ors. [ 2008 (16) Scale 192 ]. Therefore, the appellant and respondent No.3 had rightly availed the remedy by filing application under Order 9 Rule 13 of the Civil Procedure Code for setting aside the exparte decree. The perusal of para 10 of the reported judgment in case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla & ors. (supra) would clearly spell out that, proof of rashness and negligence on the part of driver of the vehicle is sine qua non for maintaining application under Section 166 of the Motor Vehicles Act. In the instant case, by the impugned judgment and order, the award qua respondent No.3 is set aside and he is given 8 A.O. No.72/2011 opportunity to file written statement. In my opinion, taking overall view of the matter, the same order should have been followed in case of the appellant herein. 14. Therefore, that part of the order dated 29.1.2011, passed by the Additional Sessions Judge-4, Aurangabad rejecting the application of the appellant herein is quashed and set aside. The exparte order passed against the appellant in Motor Accident Claim Petition No.205/2006 is hereby quashed and set aside and said Motor Accident Claim Petition No.205/2006 is ordered to be restored to its original file and the appellant herein would be at liberty to file written statement within 15 days from today. After considering his written statement and after hearing both the sides and after recording the evidence, the Tribunal is directed to dispose of the application within three months from today. The learned counsel for the appellant assures this Court that the appellant will file written statement within two weeks from today. It is needless to mention that since the counsel for the appellant has given assurance before this Court that the appellant will file written statement within two weeks, all other formalities are not necessary. It is needless to mention that, the respondent No.3, if he has not filed written statement, in that case, Tribunal should insist for his written statement within two weeks from today. Since the original applicant, who is respondent No.1, is awaiting outcome of the 9 A.O. No.72/2011 Motor Accident Claim Petition No.205/2006, the Tribunal should make every effort and endeavour to hear and dispose of the said Motor Accident Claim Petition No.205/2006 as expeditiously as possible, within three months from today and send report to the registry of this Court about such disposal. The Appeal from Order is allowed to above extent and stands disposed of. As a consequence, Civil Application No.5440/2011 also stands disposed of. Any observations hereinbefore are prima facie and Motor Accident Claims Tribunal, without being influenced by such observations, shall decide the Motor Accident Claim Petition on its own merits in accordance with law. 15. The learned counsel appearing for the appellant and learned counsel appearing for the respondents agree before this Court that they will appear before the Tribunal on 29th July 2011. ( S.S. SHINDE, J. ) fmp/ao72.11