Union of India v. Shri Dnyaneshwar Mangesh Bagkar

2. So the issue involved in this appeal is about “when opponent remained absent though served, what will be the scope for such appellant to challenge the findings in such judgment”. It is settled law when there is an award declared (without appearance or subsequent non-appearance), such opponent has got two remedies. They are:a) to file an application as per the provisions of order 9 Rule 13 of CPC for setting aside an award, OR b) to file a substantive appeal as per the provisions of Section 96 of CPC. Though both remedies can be exhausted simultaneously,the findings in one proceedings need to be considered when other proceeding is decided. Furthermore, as per the explanation to Rule 13, when substantive appeal is decided on merits, further application under Order 9 Rule 13 of Civil Procedure Code is not maintainable.

3. Scope of an enquiry under Order 9 Rule 13 of CPC is limited to two grounds mentioned therein. Court can inquire:a) Whether summons is served properly. b) whether there is sufficient cause for non-appearance to defendant when the matter is fixed for hearing. In this case, summons is duly served and Union of India has also appeared and filed written-statement. The reason for non-appearance offered was their advocate has not remained present before the Tribunal and it was not informed to them.

4. Whereas scope of an appeal is wide. Every ground on merits can be taken. Though the averments in written-statement are not substantiated by way of evidence, still the opponent can argue insufficiency of evidence to prove he claim. He can argue about defect in service of summons.

5. In a present case, the Union of India has failed to prove sufficient cause for non-appearance. Their grievance is rejected by the Tribunal as per the order dated 11 August 1998. Mr. Bhate invited my attention to the said order. The Tribunal held “the award dated 21 April 1994 cannot be treated as an exparte award.” Learned Advocate Shri Vijayakar for Union of India has remained absent from 30 March 1994. They have appointed learned Advocate Shri Anand to represent their cause. The tribunal observed “this averment is not supported by any record including roznama. (Para-7).

6. The Tribunal held that the application was not filed within 30 days as per Article 123 of Limitation Act. The period is to be calculated from the date of decree that is 21 April 1994 But it was filed beyond 30 days (Para-8).

7. For two reasons, this Court cannot ascertain correctness of the said order dated 11 August 1998. First, such an order can be challenged by way of miscellaneous civil appeal under Order 43 Rule 1(a) of CPC. It cannot be challenged by way of substantive appeal. Secondly, on account of findings given by the Tribunal. In this substantive appeal, Union of India cannot now take up a ground of “sufficient cause for non-appearance” because there is a findings and it is not challenged by resorting to proper remedy. Scope of present appeal

8. Considering the above discussion, the scope of this appeal is very limited and it is “whether there is sufficient evidence to conclude about rash and negligent driving of driver of motor car No.MMY 4539 belonging to Union of India. Mr. Bhate laid the entire stress in not considering the entries in station diary dated 24 February 1988 from Mata Ramabai Ambedkar Police Station. Apart from incident, it contains reference of injured being drunk. According to Mr. Bhate this extract was produced by the claimant only and the Tribunal has not properly appreciated it. Whereas according to Ms. Anchan, it was not proved.

9. No doubt, station diary extract is a public document. I have perused it. It shows following facts:a) PSI visited Saint Georges Hospital on 24 February 1988. He could not verify with the injured because he was not in a position to speak and he was drunk. b) He enquired with three persons. One driver of the car Shri Shinde, occupant of the car Shri Gavhane and witness Salichar. c) The spot of incident is in front of New Anand Bhuvan, Mint Road. d) Witness Salichar saw one car came on Mint Road. It passed. A person crossing the road fall down. He saw motor car number. The witness and two occupants of the car shifted the injured from the car to the hospital. e) The injured has consumed liquor. On seeing car, he fumbled. Right backside portion of the car dashed him. f) The name of the injured is Dyhaneshwar Mangeshclaimant. Medical certificate suggest cause of alcohol. g) Accident is entered in motor accident register. h) On 26 February 1988, the police enquired with the claimant. Claimant has consumed liquor. He came on Mint Road at 7.30 p.m. One double decker bus came. He stopped in the middle of the road. He could not see the car behind the bus. Backside of the car dashed him.

10. Mr. Bhate also invited my attention to the findings by the Tribunal. Tribunal held driver of the car was rash. Claimant was not having vices. Tribunal believed the contents of station diary entry. According to Mr. Bhate when the Tribunal can trust the entries in station diary entry, it can also trust the portion about claimant drunkenness. It is settled position that station diary is a public document. Any one can obtain its copy. But the issue is whether the Tribunal can consider the contents of station diary without proof? There is a startling difference in between claimant’s case and case pleaded by Union of India.

11. The claimant has given oral evidence. Tribunal found his oral testimony is corroborated by contents of station diary on the point of spot of incident, identity of the car. However, for rest of the contents (drunkenness), Tribunal has not referred contents of station diary whereas the Union of Indian has neither cross-examined the claimant nor given any substantive evidence. Because station diary entry is only having corroborative value. It is not substantive evidence. It cannot take place of substantive evidence. Miss Anchan contends that there is no blood test. It is not there. I am not agreeable to the submissions made by Mr. Bhate. He tried his level best to convince me. But I am bound by rules of evidence. So I find no reason to interfere in the findings recorded about rashness and negligence of car driver owned by Union of India. Hence, the following order:- O R D E R a) Appeal is dismissed. b) Parties to bear their own costs. c) If any amount of compensation is not deposited, it be deposited within four weeks. d) If any amount remained to be withdrawn, the claimant is at liberty to withdraw it with accrued interest. (S.M. MODAK, J.)