1 16 D.B. CIVIL SPECIAL APPEAL (W) No.82/2007 Hansukh Vs. 1. Ishak 2. Arjun Das 3. U.O.I. Date : 15.11.2007 HON'BLE ACTING CHIEF JUSTICE MR. RAJESH BALIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mrs.Pramila Acharya, for the appellant. Mr. Sunil Bhandari for Mr. M.R.Singhvi, for Insurance Co. The appeal is directed against the order of learned Single Judge dated 10.12.2004 dismissing the application filed under Section 5 of Limitation Act and the appeal against respondent No.1 & 2 driver and owner of the vehicle involved in the accident in question. The appeal against the award passed by Motor Accident Claim Tribunal was delayed by one day and application under Section 5 of Limitation Act has been filed. Notices of the application having been issued. While respondent No.3 has been served, respondent No. 1 & 2 could not be served. Notices had been sent to the address stated in the appeal, time and again. About filing fresh address, the learned counsel for the appellant has submitted that addresses given in the appeal were the only known address to the appellant as they are residing at different parts of the country and notices of respondents No.1 & 2 had been served at the address given in the appeal. Therefore, notices sent on the same address were correcting addressed. 2 However, explanation was not accepted and the appeal against respondents No.1 & 2 was dismissed for want of prosecution along with application under Section 5 of Limitation Act. Having heard learned counsel for the parties, we are of the opinion that dismissal of the appeal against respondent No. 1 & 2 was not justified making the decree final against them by it was not appropriate as it would have vitally affected the right of the appellant for no fault of it by creating a situation that pending appeal will become infructuous on possibility of coming into existing contradictory decrees in the same case. Moreover, the explanation submitted by the appellant appears to be justified from the fact that the vehicle is owned by the person who is residing at Gurghun in Haryana State, the claimant is in Indore in Madhyapradesh State, and the driver the employee's address as appearing on the driving licence is of Kanpur in UP. In these circumstances, the claimant is not supposed to keep trench of address of the employee or the owner and driver of vehicle from the place to place and when the notices of respondent No. 1 & 2 have been served at the very same address, the claimant could not be asked to furnish their new addresses. If at all the persons presence was considered necessary, directions, could have been to issued to serve by substituted service. 3 Moreover, it is apparent from the award itself that vehicle in question is insured by respondent No.3. Presently, liability of the insurance to indemnify the owner has not been challenged in the appeal. If that be so, any decree passed for enhancement of compensation in favour of claimant could be executed and given effect to against respondent No.3 alone. It would not have been absolutely essential in these circumstances to have owner and driver present before the court so as to make the decree become final against them by dismissing the appeal. We are therefore, of the opinion that appeal deserves to be allowed. Accordingly the appeal is allowed, the order under appeal is set aside. Service of respondent No. 1 & 2 is dispensed with.Considering the facts and circumstances, one day's delay in filing the Misc. Appeal is condoned and application u/s 5 of Limitation Act is allowed. The Misc. Appeal be registered and be put for admission before appropriate Bench. [ BHANWAROO KHAN ], J. [ RAJESH BALIA ], ACTG.C.J. arti