IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.337 of 2007 RAMESH KUMAR SINGH, S/o.Ram Adhar Singh, r/o. village-Gaighat, P.S. Runni Saidpur, District- Sitamarhi. Versus 1. ANJU DEVI, widow of late Ranjit Mishra & Ors. Counsel for the Appellant: Mr. R.P. Singh, ---- Advocate. Counsel for the Respondents: Mr. Ashok Kumar Jha --- Advocate. Mr. Binod Kumar , --- Advocate. 8 23.12.2008 This appeal is against the judgment dated 24.04.2007 and award dated 5.5.2007 of the Addl. District Judge, F.T.C. No.II-cum-Motor Vehicles Accident Claims Tribunal, Sitamadhi passed in Claim Case No.12 of 2004, whereby the appellant Ramesh Kumar Singh, the owner of the Mini Bus No.BR-55P/1500 has been ordered to pay a compensation of Rs.2,13,000/- together with interest @ 6% per annum from the date of judgment to the claimants, who are the heirs and dependents of the deceased Ranjeet Mishra, who had died on 6.01.2004 in an accident caused by the rash and negligent driving of the said bus owned by the appellant. With regard to the accident Dumra P.S. Case No. 1 of 2004 dated 6.1.2004 under Section 279, 337, 338 & 304A of the I.P.C. was instituted and after completion of the investigation charge-sheet was also filed against Brij 2 Bihari Rai, the driver of the vehicle. The owner i.e., the appellant and the driver of the vehicle were arrayed as O.Ps. 1 & 2 under the claim petition before the tribunal. The insurance company was O.P. No.3 there. Notices were issued to the O.Ps. by the tribunal but the notices could not be served O.P. Nos.1 & 2 and therefore the tribunal ordered for substituted service of notice through publication in daily newspaper circulated in the area in which the defendant/O.P. actually resided and personally work for gain. Such publication was made but despite that publication the appellant who was O.P. No.1 and also the driver who was O.P. No.2 did not appear. The insurance company who was O.P. No.3 appeared and it took all the defences available to it under law. The claimants examined four witnesses, who stated about the accident having been caused by the rash and negligent driving of the said bus and they also stated about the income of the deceased. The F.I.R. and charge-sheet of the police case was also proved and marked as exhibits in the claim case. On considering the entire evidence, facts and circumstances of the case the learned Claims Tribunal 3 ordered the appellant to pay the compensation as above. During hearing learned counsel for the appellant challenged the impugned order only on sole ground that summons was not duly served upon the appellant and it was submitted that due to this reason the ex parte hearing of the case and the awarding of the claim thereby was not legal and proper. Referring the provisions under Order 5 Rule 20 C.P.C., learned counsel pointed out that this rule 20 provides that where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court or some parts of the house of the defendant or by advertisement in newspaper. Learned counsel further submitted that no doubt the claims tribunal has ordered for substituted service by way of advertisement in newspaper but any separate finding about the inability in the service of summons in usual course has not been mentioned by the tribunal in its order. 4 In order to appreciate this aspect of the matter, it is proper to quote a portion of the impugned order in this regard. At para-4 of the impugned order the learned claims tribunal mentions as follows: “In spite of notices issued against the O.Ps.1 & 2 i.e., Ramesh Kumar Singh and Brij Bihari Rai did not appear in this case. Thereafter, the Court ordered the service/notice/summons by an advertisement in a daily newspaper circulating in the area in which the defendants/O.Ps. have actually and personally work for gain and the service of summons/notices against the O.Ps.1 & 2 were declared to have been duly served upon them.” Thus, the Tribunal mentions that when notices issued upon the appellant could not be served, the Court ordered for advertisement in newspaper. This clearly shows that when notice could not be served, the Court ordered for substituted service by way of advertisement in newspaper and that was done but despite that the appellant did not appear in the claim case. Learned counsel for the respondent submitted that the appellant was a resident of the same locality within 5 one kilometer, where the claimants resided. It was also submitted that the appellant was quite in know of the pendency of the claim case but he deliberately avoided. It was further submitted that the claim case was proceeded ex parte because the appellant did not appear even after publication of notice in the newspaper. Referring Rule-13 Order 9 of C.P.C., it was argued by the respondents’ counsel that there is specific provision for taking recourse to a relief against an ex parte decree. Rule-13 of Order 9 C.P.C. reads as follows: “13. Setting aside decree ex parte against defendants- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit .......”. 6 Thus, there is a categorical provision for making a prayer before the Court which passed an ex parte decree for setting aside the same on the ground that the notice was not served to him or that the defendant was prevented by sufficient cause in appearing when the suit was called for hearing. When such an application for setting aside ex parte decree is filed before the Court the same is registered as miscellaneous case and both the sides are permitted to adduce their evidence and file document and thereafter considering entire material the Court takes a decision about setting aside ex parte decree. The appellant did not take recourse to such remedy as was available to him under the aforesaid specific provision of law. In this appeal the appellant takes the plea that notice was not served upon him but even on prima facie consideration of material as mentioned in the judgment it is clear that when notices could not be served the Court had ordered for substituted service which was done by way of advertisement/publication of notice in the newspaper, but despite that the appellant did not appear before the Claims Tribunal, therefore, the Claims Tribunal proceeded ex parte 7 and thereby passed the impugned award. In view of the facts and circumstances, I find no scope to make any interference with the award on the ground that there was no service of notice to the appellant and that he had no knowledge of the case despite publication of notice in the daily newspaper. Finding no merit, this appeal is dismissed. Mkr. (C.M. Prasad, J.)