THE HON’BLE SRI JUSTICE C.V.RAMULU C.M.A.No.534 of 2005 ORAL JUDGMENT: This Civil Miscellaneous Appeal is filed challenging the order and decree made in C.F.R.No.13048 of 2004 in M.V.O.P.No.154 of 1999 dated 19.1.2005 on the file of the learned Motor Accidents Claims Tribunal-cum-II Additional District Judge, Guntur. Appellant is petitioner in CFR.No.13048 of 2004 and fifth respondent in the main O.P. Respondents 1 to 5 are petitioners and respondents 6 to 9 are respondents in the main O.P. It appears, respondents 1 to 5 laid M.V.O.P.No.154 of 1999 for the death of one Sanku Sivaiah, cleaner of the vehicle, which met with accident, claiming compensation of Rs.1,50,000/-. Appellant herein was impleaded as fifth respondent in the main O.P. When the O.P. was pending, notice was sent to appellant’s address at Vijayawada. According to the appellant, he was not residing in Vijayawada. The address was given long back at the time of registration of the vehicle and he has shifted from Vijayawada to Guntur and is residing in Guntur. The notice sent to Vijayawada address was returned unserved, therefore claimants were permitted to take out substitute service by way of paper publication in Janata newspaper. According to the appellant, the said Janata newspaper is only limited to Vijayawada town, and he had no knowledge about the said O.P., therefore could not appear before the Tribunal and he was set ex parte on 23.7.2004 and ultimately the award was passed on 7.9.2004 awarding a sum of Rs.25,000/- with proportionate costs and interest at the rate of 9% per annum from the date of petition till the date of realization and the appellant was made liable to pay the same jointly and severally along with one Satyanarayana-sixth respondent herein. Appellant came to know about the same after 79 days of passing the award, therefore he immediately filed the present application explaining the reasons for not appearing before the Tribunal and pursuing the matter seeking restoration of the O.P. Since there was a delay of 49 days in filing the petition, present application under Section 5 of Limitation Act is filed. The respondents herein were served and all of them endorsed stating that they have no objection for the delay, but in spite of the same, the application was dismissed through the impugned order. Aggrieved by the same, the present C.M.A. is filed. The learned counsel for appellant strenuously contended that appellant had shifted from Vijayawada to Guntur and assuming that substitute service was permitted and publication was made in Janata Newspaper, but it has no circulation in Guntur, where the appellant is residing. All these facts were not taken into consideration and the Tribunal below has erroneously dismissed the application. Learned counsel further stated that in fact, the lorry owned by the appellant is covered by a valid insurance policy. Had opportunity was given to the appellant, he would have proved that the vehicle was covered by a policy and fixing liability on him would not have arisen. The learned counsel Sri Kota Subba Rao, appearing for respondent No.9-Insurance Company opposed vehemently stating that the petition filed by the appellant is nothing but to delay the matter. Though the appellant noted the substitute service published in Janata newspaper, intentionally he did not appear before the Tribunal and further, no sufficient cause was shown requiring condonation of delay in filing the application. Therefore, the order passed by the Tribunal below cannot be said to be arbitrary or illegal. The appeal is devoid of merits and liable to be dismissed. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. The delay caused was only 49 days in filing the application seeking to set aside the exparte order. Admittedly, appellant was not residing in Vijayawada and the Vijayawada address was given at the time of registration of vehicle and during the pendency of O.P., he was residing in Guntur. Even the substitute service by way of paper publication in Janata newspaper could not serve any purpose. Further, according to the appellant, the vehicle was insured as on the date of accident. Since the appellant has no opportunity, he could not place the policy before the Court. Under those circumstances, I am of the view that since the delay is only 49 days, the same deserves to be condoned, particularly when the appellant asserted that his vehicle was covered by a valid insurance policy. The Tribunal made a pedantic approach in dismissing the application. The appellant should have been given one opportunity to participate in the proceedings, in the interest of justice. For all the above reasons, the impugned order is set aside and the I.A. (condone delay petition) is ordered accordingly. The Tribunal below is directed to take up the Petition filed under Order IX Rule 13 of CPC seeking to set aside the ex parte order and proceed with the matter on its own merits, subject to the condition that appellant deposits half of the amount as awarded by the Tribunal to the credit of O.P. On such deposit, claimants may be permitted to withdraw the same without furnishing any security. In case, Order 9 Rule 13 CPC petition is allowed and the matter is reopened and if it is found that the appellant’s vehicle is covered by a valid insurance policy, it is always open for the appellant to recover the amount from the Insurance Company. The CMA is accordingly allowed. No order as to costs. ______________ C.V.RAMULU, J Date: 8.7.2010 DA THE HON’BLE SRI JUSTICE C.V.RAMULU C.M.A.No.534 of 2005 8.7.2010 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU C.M.A.No.534 of 2005 Date: 8th July, 2010 Between: P.Prasad Rao .. Appellant And Sanku Sivaiah (died) per L.Rs. Sanku Sridevi and others. .. Respondents