IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTYFOURTH DAY OF AUGUST TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A.No.1254 of 2002 Between: Tippalla Bhudevamma and another ..Appellants AND Shaik Jani Miya and another .. Respondents JUDGMENT: The appeal is directed against the award in M.V.O.P.No.613 of 1997 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Guntur, dated 20-06-2001. The claim for compensation was made before the Tribunal by the dependents of the deceased Teppalla Laxmareddi, who was killed in a motor accident on 01-02-1997 due to the rash and negligent driving of the lorry owned by the 1st respondent and insured with the 2nd respondent to the claim petition. The compensation was claimed at Rs.1,00,000/- and the claim was contested by the insurer by filing a written statement, but the petition against the owner/1st respondent was dismissed on 17-02- 1998 as batta for the 1st respondent was not paid by the petitioners. The Tribunal framed issues on the responsibility for the accident and the entitlement of the claimants to compensation, examined PWs.1 to 3 and marked Exs.A.1 to A.5 during enquiry and pronounced the impugned award. The Tribunal concluded that the claimants are entitled to the claim for compensation of Rs.1,00,000/- with interest at 9% p.a. thereon and costs, but took into account the dismissal of the petition against the 1st respondent-owner of the lorry making the 2nd respondent also not liable to pay any compensation as the liability of the insurer arises only if the insured is liable. The claim petition was accordingly dismissed without costs. The claimants approached this Court with this appeal contending that the said conclusion of the Tribunal is illegal and unjustified and when the Tribunal concluded that the liability of the 2nd respondent-insurer is coextensive with that of the 1st respondent-insured, it ought to have decreed the claim against the insurer. Sri G.L. Nageswara Rao, learned counsel for the appellants, is heard and while the insurer entered appearance through its standing counsel, the owner of the lorry could not be personally served in spite of issuance of notices by this Court more than once. His appearance is not being awaited in the light of the law laid down by this Court in Peddaboina Laxmi and others v. Lamba Road Lines, Secunderabad and another[1] on which the learned counsel for the appellants relied on. Their Lordships of the Division Bench were considering a similar situation where summons were not taken to the owner of the offending vehicle by the claimants on which the claim was dismissed under Order IX Rule 2 of the Code of Civil Procedure against the owner of the vehicle. While noting that the Apex Court laid down in Oriental Insurance Company Limited v. Sunita Rathi (1998) 1 SSC 365) that the Insurance Company cannot be fastened with any liability in the absence of the owner of the vehicle, the Division Bench also noted that the claimants could have as well filed a fresh claim under Order IX Rule 4 of the Code of Civil Procedure in the event of their claim being dismissed for non-payment of batta or their claim not being restored in the absence of an application for setting aside the order of dismissal. The Division Bench observed that a technical flaw committed by a member of the legal fraternity could not place a poor client in an awkward position and also referred to the deletion of any provision for any period of limitation for making claims for compensation under the Motor Vehicles Act and in the interests of justice, the Division Bench allowed the appeal and remitted the matter back to the Tribunal for fresh disposal by following the procedure laid down under Order IX Rule 4 of the Code of Civil Procedure. The present case stands exactly on a similar footing on fact and in law and the poor claimants need not be deprived of the compensation to which they are entitled either for the fault of their counsel or for their own ignorance. They should be given one more reasonable and just opportunity to have their claim decided on merits by the Tribunal. Therefore, the award dated 20-06-2001 in M.V.O.P.No.613 of 1997 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Guntur, is set aside and the said M.V.O.P.No.613 of 1997 shall be restored to file and the matter is remitted back to the Tribunal for proceeding with the said M.V.O.P.No.613 of 1997 in accordance with law by giving every opportunity to the claimants to have the notices of the claim served as per law on the 1st respondent, the owner of the offending lorry, and thereafter to determine the claim on merits as per law after every reasonable opportunity to the parties concerned. The appeal is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 24-08-2010 Ksn [1] 2002 (6) Andhra Legal Decisions 132 (DB)