1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.4172 OF 2008 Sheru @ Rohit S/o Ramesh Komatwar and another. Appellants V/s Atmaling @ Lingappa Rangnath Bhusari and another. Respondents ------------------------------------------------------------------------------------------------------- Mr. U. B. Bondar, Advocate for Appellant. Mr. M. D. Shinde, Advocate for the Respondent No.1 and 2. ------------------------------------------------------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 14th September, 2009. PER COURT : 1. Heard Shri. U. B. Bondar, the learned Counsel appearing for the appellant and Shri. M. D. Shinde, the learned Counsel appearing for the Respondents-claimants. This Appeal challenges the judgment and award dated 1st September, 2008 passed by the Motor Accident Claims Tribunal, Osmanabad in M.A.C.P. No.217/2005. By the said award, the appellants are held jointly and severally liable to pay compensation of Rs. 1,00,000/- to the respondents-claimants along with interest at the rate of 7.5% from the date of filing of Petition. On 01.12.2008, this Court had issued notices before admission to the Respondents and Record and Proceedings were also called, so also the ad-interim relief in terms of 2 prayer clause (B) was also granted, subject to appellants depositing 50% of the amount awarded. The appellants deposited an amount of Rs. 25,000/- on 26.11.2008 towards the statutory deposit and further an amount of Rs.25,000/- was also deposited on 08.12.2008. Thus total 50% of the amount awarded has been deposited by the appellants in this Court as per the order dated 01.12.2008. 2. The only ground raised by the learned Counsel appearing for the appellants is that, the Tribunal has proceeded exparte against the present appellants and the notices were not served upon the appellants. It is alleged that, although there was paper publication in Dainik Sangharsha on 11.04.2008 by which the appellants were asked to appear before the Tribunal, the said paper had no wide circulation in the area where the appellants resides and hence the appellants could not notice the same. It is contended that, as soon as the appellants served with the notice of Darkast for execution of award through bailiff on 6.11.2008, asking the appellants to remain present before the Tribunal on 02.12.2008, the appellants preferred this Appeal. The appellants therefore submit that, the matter may be remanded to the Tribunal for permitting the appellants to participate in the proceedings by filing their written statement. 3. The learned Counsel appearing for the Respondents-claimants 3 on the other hand submitted that, the appellants, when could get the notice of the Darkast through the bailiff on 16.11.2008 on the same address on which they were sought to be served by notices of the claim petition, it is unbelievable that the appellants could not get the notices or could not know about the pendency of the Petition. According to the learned Counsel for the Respondents-claimants the paper publication had wide circulation in the area and the service through the paper publication has been held to be valid and therefore, there is no reason for remanding the matter to provide opportunity to the appellants who have been negligent in defending the case. 4. Without going into the disputed questions of facts, the matter can be remanded back to the Tribunal for providing the appellants an opportunity to defend the claim Petition in the interest of justice. However, this shall be subject to appellants paying cost of Rs.15,000/- to the non- applicants-claimants as condition for participating in the proceedings before the Tribunal. 5. In view of the above, the following order is passed :- (i) The Appeal is allowed. The judgment and award dated 1st September, 2008 passed by the Motor Accident Claims Tribunal, 4 Osmanabad in M.A.C.P. No.217/2005 is quashed and set aside. (ii) The Tribunal shall provide the appellants an opportunity to file their Written Statement and cross examine the witnesses and lead their evidence in defence. (iii) The Tribunal shall decide the matter as expeditiously as possible, at any rate, within a period of three months from the date when the parties appear before it. (iv) The parties herein shall appear before the Tribunal on 29th September, 2009. None parties shall be issued fresh notice for appearance before the Tribunal and this intimation itself will be treated as notice to appear before the Tribunal. (v) The appellant shall pay cost of Rs.15,000/- to the Respondents-claimants by 29th September, 2009 from today, failing which the instant appeal shall be treated as dismissed and the Tribunal shall not proceed with the matter. If the amount is paid to the claimants then the Tribunal shall permit the appellants to participate in the proceedings as observed hereinabove. 5 (vi) An amount of Rs.50,000/- deposited by the appellants in the present case shall be immediately remitted to the Motor Accident Claims Tribunal, Osmanabad and same shall be kept in Fixed Deposit for a period of three months. The Tribunal shall pass appropriate orders in respect of the amount so deposited after the decision in the matter. (R.K. DESHPANDE) JUDGE GAS/fa4172.08