A. Sudhershan Vs. K. Ashok Kumar - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. orderbilal nazki, j.1. the revision petitioner is the plaintiff and the respondent is the defendant in the suit being o.s. no. 315 of 2004. this revision is filed against an order passed by the learned iii-senior civil judge, secunderabad allowing la. no. 1597 of 2005 filed in o.s. no. 315 of 2004. the application was filed under order 37 rule 4 read with section 151 of the code of civil procedure (for short 'cpc') seeking setting aside of the ex parte decree passed on 6-10-2002. a leave was also sought to defend the suit.2. it appears that the plaintiff filed the suit for recovery of a sum of rs. 2,82,500/-. in terms of order 37 of cpc, the defendant received summons under form no. 4 in appendix-b on 27-2-2004 and he filed an application for grant of leave to defend the suit. the leave application was withdrawn reserving the right to file such application at appropriate time. the defendant neither appeared nor filed written statement and the suit was decreed in ex parte on 6-10-2005. thereafter, he filed the present application seeking setting aside of the ex parte decree. the plaintiff opposed the application. he contended that the suit for recovery was filed on the strength of a promissory note executed by the defendant. even after issuing summons under form no. 4 in appendix-b and even after making his appearance on 30-4-2004, the defendant did not choose to file his written statement and got his application seeking leave to be withdrawn, however, reserving his right to file the application at appropriate time. the trial court took into consideration the contention of the defendant that he had never received any amount under the suit promissory note and the note was fabricated and the trial court came to the conclusion that there was a valuable defence and therefore, it allowed the application. the plaintiff had contended that there should be extraordinary and special circumstances to concede the plea of the defendant to condone the delay beyond 30 days in filing the petition under order 37 rule 4 of cpc.3. in these circumstances, this court will have to see whether such an application under order 37 rule 4 of cpc could have been allowed or not before that a look at rules 1, 2 and 3 of order 37 of cpc is necessary.4. rule 1 of order 37 of cpc lays down the courts and classes of suits to which order 37 applies. rule 2 of order 37 of cpc lays down the procedure for institution of suits, which are summary. sub-rule (2) of rule 2 of order 37 of cpc lays down that the summons of the suit shall be in form no. 4 in appendix - b and sub-rule (3) of rule (2) lays down that the defendant shall not defend the suit unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, upto the date of the decree and such sum for costs as may be determined by the high court, from time to time, by rules made in that behalf and such decree may be executed forthwith. rule 3 of order 37 of cpc lays down the procedure for the appearance of the defendant. the plaintiff is supposed to serve together with the summons under rule 2 on the defendant a copy of the plaint and annexures thereto and the defendant is required at any time within 10 days of such service enter his appearance either in person or by pleader. under sub-rule (4) of rule 3, if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in form no. 4a in appendix-b returnable not less than in 10 days from the date of the service and under sub-rule (5) of rule 3 the defendant may, within ten days from the date of the deemed service of such summons for judgment, apply for leave to defend such suit.5. so in the present case, the defendant had appeared before the summons for judgment had been given to him under sub-rule (4) of rule 3 of order 37, but after the summons under sub-rule (4) of rule 3, he did not appear nor presented any application seeking leave to defend but waited for the judgment to be pronounced and then came under order 37 rule 4 of cpc, which lays down that after the decree, the court may under special circumstances set aside the decree. therefore, it is necessary that in order to get relief under order 37 rule 4 of cpc, the petitioner should show the special circumstances to set aside the decree 1 have gone through the impugned order. there is no special circumstance except the court has stated that there is a defendable case. to examine whether a case is defendable or not is a requirement under order 37 rule 3(5) of cpc and not under order 37 rule 4 of cpc. there is no explanation given at all as to why the petitioner did not appear before the court after a notice was given to him under order 37 rule 3(4) of cpc. since no special circumstances had been shown, therefore, the trial court was wrong in passing the impugned order.6. for these reasons, the revision petition is allowed and the impugned order is set aside. no order as to costs.

Judgment:
ORDER

Bilal Nazki, J.

1. The revision petitioner is the plaintiff and the respondent is the defendant in the suit being O.S. No. 315 of 2004. This revision is filed against an order passed by the learned III-Senior Civil Judge, Secunderabad allowing LA. No. 1597 of 2005 filed in O.S. No. 315 of 2004. The application was filed under Order 37 Rule 4 read with Section 151 of the Code of Civil Procedure (for short 'CPC') seeking setting aside of the ex parte decree passed on 6-10-2002. A leave was also sought to defend the suit.

2. It appears that the plaintiff filed the suit for recovery of a sum of Rs. 2,82,500/-. In terms of Order 37 of CPC, the defendant received summons under Form No. 4 in Appendix-B on 27-2-2004 and he filed an application for grant of leave to defend the suit. The leave application was withdrawn reserving the right to file such application at appropriate time. The defendant neither appeared nor filed written statement and the suit was decreed in ex parte on 6-10-2005. Thereafter, he filed the present application seeking setting aside of the ex parte decree. The plaintiff opposed the application. He contended that the suit for recovery was filed on the strength of a promissory note executed by the defendant. Even after issuing summons under Form No. 4 in Appendix-B and even after making his appearance on 30-4-2004, the defendant did not choose to file his written statement and got his application seeking leave to be withdrawn, however, reserving his right to file the application at appropriate time. The trial Court took into consideration the contention of the defendant that he had never received any amount under the suit promissory note and the note was fabricated and the trial Court came to the conclusion that there was a valuable defence and therefore, it allowed the application. The plaintiff had contended that there should be extraordinary and special circumstances to concede the plea of the defendant to condone the delay beyond 30 days in filing the petition under Order 37 Rule 4 of CPC.

3. In these circumstances, this Court will have to see whether such an application under Order 37 Rule 4 of CPC could have been allowed or not Before that a look at Rules 1, 2 and 3 of Order 37 of CPC is necessary.

4. Rule 1 of Order 37 of CPC lays down the Courts and classes of suits to which Order 37 applies. Rule 2 of Order 37 of CPC lays down the procedure for institution of suits, which are summary. Sub-rule (2) of Rule 2 of Order 37 of CPC lays down that the summons of the suit shall be in Form No. 4 in Appendix - B and Sub-rule (3) of Rule (2) lays down that the defendant shall not defend the suit unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, upto the date of the decree and such sum for costs as may be determined by the High Court, from time to time, by rules made in that behalf and such decree may be executed forthwith. Rule 3 of Order 37 of CPC lays down the procedure for the appearance of the defendant. The plaintiff is supposed to serve together with the summons under Rule 2 on the defendant a copy of the plaint and annexures thereto and the defendant is required at any time within 10 days of such service enter his appearance either in person or by pleader. Under Sub-rule (4) of Rule 3, if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix-B returnable not less than in 10 days from the date of the service and under Sub-rule (5) of Rule 3 the defendant may, within ten days from the date of the deemed service of such summons for judgment, apply for leave to defend such suit.

5. So in the present case, the defendant had appeared before the summons for judgment had been given to him under Sub-rule (4) of Rule 3 of Order 37, but after the summons under Sub-rule (4) of Rule 3, he did not appear nor presented any application seeking leave to defend but waited for the judgment to be pronounced and then came under Order 37 Rule 4 of CPC, which lays down that after the decree, the Court may under special circumstances set aside the decree. Therefore, it is necessary that in order to get relief under Order 37 Rule 4 of CPC, the petitioner should show the special circumstances to set aside the decree 1 have gone through the impugned order. There is no special circumstance except the Court has stated that there is a defendable case. To examine whether a case is defendable or not is a requirement under Order 37 Rule 3(5) of CPC and not under Order 37 Rule 4 of CPC. There is no explanation given at all as to why the petitioner did not appear before the Court after a notice was given to him under Order 37 Rule 3(4) of CPC. Since no special circumstances had been shown, therefore, the trial Court was wrong in passing the impugned order.

6. For these reasons, the revision petition is allowed and the impugned order is set aside. No order as to costs.