t { :,,,-,, IN THE HIGH COURT OF JUDICATURE AT BILASPUR fCHHATTISGARHl Writ Petition (Art.227» No. ^*^ / 2006 PETITIONER (APPLICANT) in court below .^' ^ .^<. €^ ..$•>•' ^^> ?^^ •^'~~'" ^/.^' " . • ' Versus RESPONDENTS (NON- APPLICANTS) in court below b^ l^- Yugal Kishore Taraarakar, S/o Shri Akshay Tamarakar, aged about 30 years, Occupation- Unemployed, , R/o Taraerpara, Dhamdha, Tahsil- Dhamdha, District: Durg, Chhattisgarh. 1. Raju Khan Alias Hidyatullaha Klian, S/o Not known to the Petitioner R/o Village- Kanhera, Tehsil- Bematara, Presnetly R/o Yillage- Ahirwara Chati Shikat, Poliee Station- Durg Nandini, District Durg, Chhattisgarh. 2. The Orien.ta.l Ins'urance Company Limited, T'h.rough [ its iwld.'. K •^^^^/s^ ^^KSS^^^^!' ^SIiiii: ^^:^^" ^; ^ ^VC^ w',F-'J .1° r5-' Branch Manager, Branch- Durg, Malviya Nagar, District: Durg, Chhattisgarh. 3. Ram Sharan, S/o .Shyamratan Thetwar, aged about 60 years, R/o Village- Dhamdha, Police Station- Dhamdha, Tahsil- Dhamdha, District- Durg, Chhattisgarh. 4. Sati Bai, Widow of Ram Narayan Alias Ram Kumar, aged 20 years, R/o Dhamdha, District- Durg, Chhattisgarh. 5. Smt. Keja Bai, W/o Ram Sharan Yadav, aged about 55 years, R/o Dhamdha, Tahsil- Dhamdha, District- Durg, Chhattisgarh. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA. ig") s": E.i •B. K- HBI:iu ^l^'.^, M^', '^ KWS sini Bfl Sf iS '!^'^ tSSSS'-..^-' •^ HLGKCOURTOFCHHATT1SGARH AT BILASPUR Sinole Bench: HpriLble^ShrUustice Prashant Kumar Mishra Writ Petition (227) No.2675j>f2Q08 Petitioner Respondents versus Yugal Kishore Tamarakar Raju KharTalias Hidyatullaha Khan and others Present: Shri Malay Kumar Shrivastava, counsel forthe petitioner. Shri Sudhir Kumar Agrawal, counselforrespondent No.2. No one appears for other respondents. WritPetLtiorL imder Aj-ticle_227 of_the_ ConstLtu_tLorLofJrLdia ORAL ORDER (Passed on 22nd March, 2010) Heard on admission. 2. In a claim petition under Section 166 of the Motor Vehicles Act, 1988, preferred by respondentsNo.3 to5 herein, the petitioner was proceeded ex parte and thereafter the award was passed on 7-2-2002 (Annexure P-3). In the said award, the claimants were held to be entitled to a compensation of Rs.1,14.500/- together with interest at the rate of 9% from the date of submission of claim petition. It was also directed in the award that the insurance company, i.e., the non- claimant No.4/respondent No.2 herein shall pay the amount and thereaftef it can recover the amount from the owner, i.e., the present petitioner. This was directed on the basis of a finding that on the date of accident, the driver of the offending vehicle was not having a valid driving licence and as such it was a case of breach of policy conditions. sh ft 1.'! 's7- u % :^"^'^'^ :iE5». 1j ^ ^ '•:•••>-.^-y .ff ^.^•'^" .. Q^ 3. On 8-7-2003, the insurance company/respondent No.2 moved an application for execution, i.e., for recovery of the amount from the present petitioner. According to the petitioner, he came to know about the ex parte order for the first time on 9-12-2003 and thereafter on 16- 12-2003 he moved an application underorder 9 Rule 13 ofthe Code of Civil Procedure, 1908 along with an applicatien under Section 5 ofthe Limitation Act. Respondent No.2/insurance company submitted its reply to the application and asserted that the petitioner has not been able to demonstrate a sufficient or gpod cayse fpr explaining the delay in moving the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908, therefore, the delay in filing the application should not be condoned. 4. The learned executing Court/Claims Tribunal has rejected the petitioner's application under Section 5 of the Limitation Act for condonation of delay in moving the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 and as a consequence, the said application under Order 9 Rule 13 ofthe Code of Civil Procedure, 1908 has also been dismissed. 5. Learned counsel for respondent No.2 has raised a preliminary objection about maintainability of the writ petition on the ground that in view of existence of alternative remedy in form of filing of an appeal unSer Order 43 Rule 1(d) of the Code of Civil Procedure, 1908, the present petition under Article 227 of the Constitution of India is not maintainable. 'K*sk ^ '% •»1 -I \^ 6. Contesting the preliminary objection of respondent No.2 and supporting his case on merits, learned counsel for the petitioner argued that the present petition is maintainable because under the Chhattisgarh Motor Vehicles Rules, certain provisions of the Code of Civil Procedure, 1908 have been made applicable under Rule 240 thereof and under the said rute, the provisions of Ord^r 43 of the Code of Civil Procedure, 1908 has not been made applicable. He submits that the law in this regard has been settled by a Single Bench judgment of High Court of Madhya Pradesh in Ram Shiromani Mishra vs. Shiv Mohan Singh and another, AIR 1997 MP 202. He also submits that the petitioner has explained thfe delay in moving the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 and the learned Court below ought to have entertained his application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 on merits. He also submits that in fact the said application under Section 5 of the Limitation Act was moved by way of abundant precaution though in view of the judgment rendered by the High Cpurt of Madhya Pradesh in Ram Shiromani Mishra vs. Shlv Mohan Singh and another (supra) such application need not be moved as in the said judgment, it has been held that Article 123 of the Limitation Act wilt not be applicable in cases before the Claims Tribunal by virtue ofthe provisions contained in Rule 240 of the Chhattisgarh Motor Vehicles Rules. 7. Learned counsel for respondent No.2 submits that the argument raised by learned counsel for the petitioner has absolutely no legs to stand because by implication when provisions of Order 9 Rule 13 of ' the Code of Civil Procedure, 1908 are applicable, fhe corresponding + 0 ^•i ^l ^ % .'y ^ 'V '>7 provision contained in Order 43 Rule 1 of the Code of Civil Procedure, 1908 would also be applicable. He submits that when an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 is maintainable, there has to be some period of limitation fixed for moving the said application and as such the Court below is justified in rejecting the petitioner's application under Section 5 of the Limitation Act. 8. Having heard learned counsel for the parties and after perusing the record, this Court is satisfied that the petitioner has made out a case for interference in this petition under Article 227 of the Constitution of India 9. In Ram Shiromani Mishra vs. Shiv Mohan Singh and another (supra), the High Court of Madhya Pradesh, after examining the scheme of Chhattisgarh Motor Vehicles Rules, the provisions of Order 9 Rule 13 as also of Order 43 of the Code of Civil Procedure, 1908, has held that though provisions of Order 9 have been made applicable in proceedings before the Claims Tribunal, the provisions contained in Order 43 of the Code of Civil Procedure, 1908 have not been made applicable. It has been held therein that a particular provision of the Code of Civil Procedure, 1908, which has been excluded from being applied in course of trial of a claim petition, cannot be made applicable by implication. Paragraphs 10 and 13 of Ram Shiromani Mishra vs. Shiy.Mohan Singh and another (supra) read thus: "10. The Rule 240 of 'the Rules' expressly states, untess otherwise provided in the Act or in those Rules, no orders of the First Schedule of C.P.C. shall be applicable other than those mentioned in the list. The intention of the Rule t';Il^-!1—--.. Making Authority is explicit. It did not want to burden tKe? procedure of Claims Tribunal with allthe provisions of First Schedule of C.P.C. Therefore, only a ehosen Tew orders have been mentioned in Rule 240 of 'the Rules'. Once this aspect of the Rule 240 is borne in mind, it would be crystal clear that the Rule Making Authorityomitted application of Order 43, Rule 1 of C.P.C. to the cases under Claims Tribunal. The omission deliberate or otherwise has to be respected. There is no other provision of Motor Vehicles Act, 1988 (hereinafter called 'the Act' for short) or the Rules which makes Order 43 of C.P.C. applicable. Section 4(1) of C.P.C. reads asunder: "4. Savings.—(1) Inthe absence of any specific provision to the contrary, nothing iri this Code shall be deemed to limit orotherwise affectany special or local law now in forceor any special jurisdiction or power conferred, or any special form of procedyre prescribed, by or under anyother law for the time being in force." It is clear from the aforesaid section thsit the Rules of procedure of Special Tribunal or a Court shalloverride the provisions of C.P.C. Thus the Rule 240 of 'theRules' by implication overrides the provisions of C.P.C. and makes only certain provisions in the First Schedule applicable. r 13. Ultimately, the decision of this Court is based on the express words of Rule 240 of 'the Rules' which bars application of Order43 of C.P.C. tosetting aside an ex parte awards by necessary intendment. A learned Single Judge of this Court P.R.Sharma, J: had taken a similar view in Gitabai v. General Manager, M.P. Roadways 1971 MPLJ Note132and General Manager, BhilaiSteel Project v. Steel Works Union, Bhopal, 1964 JLJ SN 98 while interpreting analogous Rule 14 of Motor Accident Claims Tribunal Rules, 1959 framed under Motor Vehicles Act, 1939." -^'wa^.sssM.iHiaVk&MbUiia '%, i^ 1 Jj '^'.t/' ^' 10. With regard to applicability of Section 5 of the Limitation Act in proceedings before the Claims Tribunal under Order 9 Rule 13 of the Code of Civil Procedure, 1908, the same judgment, i.e., Ram Shiromani Mishra vs. Shiv Mohan Singh and another (supra) has held in paragraph 19 thus: "19. ............... Thus in brief an awafd is determination of the rights and liabilities of the claimant and the insurer, owner and the driver jointly or severally for the reasons recorded in it. But it cannot be a decree because it is not a final adjudication by a Court of law expressed formally determining the rights of parties conclusively. It is a decision of Tribunal specially constituted under the Act. The award is not a decree. It follows as night the day that an ex parte award is not an ex-parte decree (sic). For this reason also, Article 123 of Limitation Act does not apply. It is well established that Limitation Act should be construed strictly as was held by Privy Council in Luchmes Suksh Roy v. Ranjit Ram Pandey, (1873) 20 Suth WR 375 PC at page 377 as follows: "It has been said that this case ought to be decided on an equitable construction and not on the strict words of the statute, but their Lordships think that Statutes of Limitation like all others ought to receive suchconstruction as the language in its plain meaning imports. Statutes of limitation are in their nature strict and inflexible enactments." It is thus clear that Limitation Act, 1963 does not apply to an application for setting aside an award given ex parte. This may appear to us an astonishing conclusion, but for the fact, the legislature or the Rule Making Authority under the Motor Vehicles Act, 1988 has omitted to provide for any limitation for filing an application for setting aside an ex \-^ parte award." ^^aa't"ss ^ Ws^s^isss^sss^s^^^^•^'•^;^!:^.^^^'^^^!^^:i ^^^^^|g^^;^ig^^^^^,^^^.i^^';^^|^^^^y^;^ ^ B9BHBB1 11. In view of the above, this Court has no hesitation in holding ttSaf the provision contained in SectionS of the Limitation Act has no application in a proceeding under Order 9 Rule 13 of the Code of Civil Procedure, 1908 before the Motor Accidents Claims Tribunal. 12. Though the provision under Section 5 of the Limitation Act has not been made applicable in the case of Ram Shiromani Mishra vs. Shiv Mohan Singh and another (supra) yet in order to assess the bona fides of the petitioner, to approach the executing Court for getting the ex parte award set aside, this Court has examined the matter. The learned Claims Tribunal proceeded ex parte against the petitioneron 9-12-2000 after recording that non-applicants No.1 and 2, i.e., the driver (respondent No.1) and the owner (the petitioner) are ex parte from the previous date. From theorder-sheets ofthe previous dates, it does not appear that on any previous date, the petitioner was proGeeded ex parte by the Claims Tribunal. That apart, the witnesses examined in courseof M.J.C. proceedings by the Claims Tribunal/executing Court, have stated thatthe Vakalatnama on behalf of the petitioner was handed over to the counsel by the insurance company when at the beginning of the trial, respondent No.2/insurance company was not arrayed by the claimants. It happened thus that when the petitioner approached hjs insurance company, i.e,, respondent No.2 with the summons issued by the Glaims Tribunal; the insurance company directed him to engage a eounsel who usually appears for the insurance company and when later on the insurance company wasarrayed as a respondent_ and it was found by the insurancecompany that it is a case of breach of policy and one BSS.^l|EBi^S@^^^^^^ \A counsel cannot defend the insurance company as well as the owner, thus, the counsel earlier engaged by the petitioner, who was also the counsel for the insurance company appears to have some difficulty and he stopped appearing for the petitioner and thus, the petitioner remained unrepresented before the Claims Tribunal. The said counsel has been examined as a witness by the executing Court. Though the learned M.J.C. Court has not believed or disbelieved the counsel yet from the tenor of the order passed by the executing Court it appears that an inference has been drawn to the effect that the petitioner was aware of the fact that he has been proceeded ex parte long back and yet he had not moved application forsetting aside ex parte proceeding for a substantial period. 13. On examination of the statement made by the counsel and the order-sheets of the Claims Tribunal, it appears that the counsel has committed some mistake in sending proper information to the petitioner when he faced difficulty in making appearance for the insurance company as well as the owner. In this view of the matter also, the application under Section 5of the Limitation Actshould have been allowed because the petitioner was successful in making a sufficient cause for condonation of delay. 14. In the result, the instant writ petition is allowed. The impugned order is set aside. The executing Court, i.e., the Motor Accidents Clanns Tribunal (M.J.C. Court) shall now consider the petitioner's application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 on merits. There shall be no order as td costs. Sd//- Prashant Kumar Mishra Judge