AI Structured Summary
Not yet generated for this judgment
Judgment
. Heard Mr. S. W. Sambre, learned Counsel for the Appellant, Ms. Jaya Mishra, learned Counsel for the Respondent No.1 and Mr. M. R. Joharapurkar, learned Counsel for the Respondent No.2.
By this Appal, the Appellant has questioned the Judgment and order dated 18/8/2006 passed by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 475/2002. The Appellant has preferred this Appeal mainly on the ground that the Appellant was not granted opportunity of hearing in the matter, and according to him, even the summonses are not served on him by proper mode of service.
The Appellant in support of his contention has placed on record the copies of Bailiff Reports which were the part and parcel of the original proceeding. It is seen that the learned Tribunal by relying upon the Bailiff Report (Exhibit-20) has held that there was a proper service on the Appellant and proceeded to decide the Claim Petition on its own merits.
In the light of submissions made before this Court, only the Bailiff Report (Exhibit-20) is the relevant document which requires consideration at the instance of this Court. Perusal of the Bailiff Report clearly shows that when he went to the house of Appellant to serve the notice of Claim Petition, he did not find any elder person present in the family of Appellant, who can accept the notice of the Claim Petition. Therefore, the Bailiff has stick-up the copy of notice to the door of the house of Appellant. The same has been treated as a proper service.
The learned Counsel appearing for Respondent No.1/Claimant has relied upon the provision of Order 5 Rule 17 of the Code of Civil Procedure, which according to her, is applicable in the matter and same was duly followed to serve notice on the Appellant.
In the light of submission made by the Respondent/Claimant, I have gone through Order 5 Rule 17 of the Code which is reproduced as under :
“O.5 R. 17. – Procedure when defendant refuses to accept service, or cannot be found. – Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”
In my opinion, to attract Order 5 Rule 17 CPC, the Tribunal is required to get first satisfied that the person/Defendant has refused to sign the acknowledgment or after using of due and reasonable diligence, the Bailiff cannot find the person/Defendant or for some similar reason, was not made available, then in that case the Court can order the Respondent No.1/Claimant to serve the notice by affixing copy of Claim Petition to the door of the house of said person. This exercise is required to be done after receipt of Bailiff Report. However, the record of the Tribunal no where demonstrates that anytime the Claimant has moved any application before the Tribunal to serve the Appellant by substitute mode of service after receipt of Bailiff Report. Hence, the procedure adopted by the Bailiff directly to affix the notice on the door of the Appellant cannot be said to be in compliance of Order 5 Rule 17 of the Code.
In addition to this, it is pertinent to note that the learned Tribunal, in absence of Appellant has passed the adverse order against him and directed him to deposit the amount of compensation. According to the Appellant, to show his bona fide he has already deposited the entire amount of his share to the Registry of this Court. The said amount, till date, is not withdrawn by the Respondent No.1/Claimant.
In the circumstances, I am of the opinion that it is a fit case to remit the matter back to the Tribunal to decide the same on its own merits. Resultantly, the following order is passed.
ORDER
First Appeal is allowed.
The Judgment and order dated 18/8/2006 passed in Claim Petition No. 475/2002 is quashed and set aside.
The Chairman, Motor Accident Claims Tribunal, Nagpur is requested to decide the Claim Petition No. 475/2002 as expeditiously as possible, and in any case, within a period of one year by considering the fact that original Claim Petition was filed before the learned Tribunal on 9/7/2002.
The amount deposited by the Appellant before this Court be transferred to the Motor Accident Claims Tribunal, Nagpur in Claim Petition No.475/2002 along with interest accrued thereon and the same be released subject to final outcome of the Claim Petition.
No order as to costs.