CW 10496/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.10496/2008 Arjun Lal & Ram Chandra Versus Judge MACT, Baran & Lokendra Kumar Date of Order ::: 23/03/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Sanjay Singhal, for petitioner Mr. Sandeep Mathur, for respondent No.2 (Claimant) Instant petition has been filed by registered owner of offending vehicle assailing ex parte Award dt.29/08/07 passed by Motor Accident Claims Tribunal, Baran (“Tribunal”) U/s 140/166 of Motor Vehicles Act, 1988 (“the Act”); and so also order dt.29/08/08 of Tribunal, whereby Civil Misc. Appl.-150/2008 filed by petitioner U/O.9 R.13, CPC, was rejected. As alleged in the petition, respondent No.2 (claimant) filed claim petition U/s 166 of the Act for alleged accident taking taken place on 16/11/05 in which claimant met with an accident with offending Tractor No.RJ-28-R-5782 of which petitioner is registered owner and due to accident, claimant sustained injuries. Since petitioner got his Tractor released after service of notice on address of his residence at Khuri, Tehsil Atru (Baran) which was the address mentioned by claimant in his claim petition also, on which address, when notices were issued in CW 10496/08 //2// claim petition, it was returned with the remarks that addressee has refused to accept. Taking note of sufficient service upon petitioner, ex parte proceedings were initiated against petitioner due to his non-appearance on 28/06/07 (Ann.1) and taking note of contents of claim petition and evidence adduced by claimant and so also the insurer, ex parte Award was passed by Tribunal on 29/08/07 (Ann.2) holding petitioner to be liable for payment of compensation. However, execution proceedings were initiated against petitioner and on application filed by claimant that judgment debtor is now residing now in Dandotia Ji Ki Badi Tel Factory, Baran, recovery warrant may be issued on such postal address (supra). At this stage, notice of execution petition was served upon, as advised to him, he filed application for re-calling of ex parte Award dt.29/08/07 (Ann.2), but was dismissed by Tribunal vide order dt.29/08/08 (Ann. 6). Counsel for petitioner submits that notices were never served upon petitioner and what has been reported by by postal authorities on the summons is factually incorrect and that apart, concerned postman who recorded such fact of addressee having refused to accept, which was made to be basis for initiating ex parte proceedings, CW 10496/08 //3// was never examined in evidence and because of claimant having mentioned in his own application filed during execution proceedings that presently petitioner is residing at Dandotia Ki Badi Tel Factory, Baran, on which address, notices in execution proceedings were served and immediately when this fact came to his notice, he filed application for setting aside ex parte award, which has not been properly appreciated by the Tribunal and rejection of his application in the facts of case is not legally sustainable. Per contra, Counsel for respondents has raised objection that there was a remedy of appeal against ex parte Award and without availing whereof, petitioner has approached this Court by way of instant petition and on merits, Counsel submits that address as referred to by petitioner, himself, even in notices served U/s 133 by Investigating Officer was the same address on which notices were sent of application filed by claimant; as such report of postal authority could not be doubted and that apart, while application was filed by petitioner U/O. 9 R.13, CPC, it was considered by Tribunal and his contention was rejected taking note of address which was throughout noted in notices while being served upon him U/s 133 by investigating officer and that CW 10496/08 //4// apart, even in the insurance cover note, registration certificate and all other documents, same address was shown by him; as such application was rightly rejected by Tribunal vide order impugned dt.29/08/08. This Court while issuing notice of the petition vide order dt.16/02/09 directed the petitioner to submit solvent security of compensation amount under ex parte Award dt. 29/08/07, which as informed, has been submitted by petitioner. I have considered contention of Counsel for parties and with their assistance, examined material on record. As regards preliminary objection raised by respondent (claimant), petitioner certainly had remedy of appeal under law but since application U/O 9R.13, CPC, was rejected by Tribunal vide order impugned dt.29/08/08 – against which no remedy lies except to approach this Court. Taking note of later development having taken place, preliminary objection raised by petitioner is not sustainable and stands over-ruled. As regards merits of petition, notice of S.133 of the Act was served upon petitioner during investigation in the year 2005 whereas notice of claim petition was issued at a later point of time CW 10496/08 //5// and ex parte proceedings were initiated against him on 28/06/07, by that time, it could be possible that petitioner have shifted to the address – reference whereof has been made by claimant also in course of execution proceedings as is evident from Ann.3, dt.04/06/08. That apart, as regards refusal note put by postal authority having been taken to be basis to initiate ex parte proceedings, person from postal authority has never appeared as witness before the Tribunal. However, taking an over all conspectus of material on record, in the opinion of this Court, certainly petitioner has been deprived of opportunity of hearing which certainly was denied to him and his denial of right to participate in proceedings have certainly caused prejudice. Consequently, writ petition succeeds and and is hereby allowed. Order dt.29/08/08 (Ann.6) rejecting application U/O. 9 r,13, CPC and so also ex parte Award dt.29/08/07 (Ann.2) both are hereby quashed & set aside. Matter is remanded back to the Tribunal to proceed afresh in claim petition of respondent (claimant) in accordance with law after affording opportunity of hearing to respective parties and decide the claim petition expeditiously. Both the parties are directed to appear before Tribunal on 20/04/09. However, CW 10496/08 //6// solvent security furnished by petitioner in pursuance of interim order dt.16/02/09 of this Court shall continue till final disposal of claim petition. No order as to costs. A copy of this order be sent to Judge, MACT, Baran for compliance. (Ajay Rastogi), J. K.Khatri/p6/10496CW08Mar23Al.doc