THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY M.A.C.M.A.No.978 of 2011 JUDGMENT: The appellant filed O.P.No.2343 of 2006 before the Motor Accidents Tribunal-cum-X Additional Chief Judge (FTC), City Civil Court, Hyderabad claiming a sum of Rs.3,50,000/- as compensation for the injuries received by him in an accident involving a lorry bearing No. AP 22 V 4005, owned by respondent No.1 and insured with respondent No.2. He stated that on 10.04.2006, he was proceeding on a motor cycle bearing No.AP 29 BC 7622 from Hyderabad to Thandur and when he reached the outskirts of Anna Sagar Village, the lorry came in a rash and negligent manner and dashed against the motor cycle. He is said to have been admitted in NIMS, Hyderabad and that steel rods were inserted to support the bone in the right leg. The details of expenditure incurred by him were also mentioned. The O.P. was mainly opposed by respondent No.2. It has put the petitioner to strict proof of the accident and other facts pleaded by him. It also required the petitioner to prove that the driver of the lorry held valid licence as on the date of the accident. The appellant examined P.Ws.1 to 4 and filed Exs.A1 to A10. On behalf of respondent No.2, no witnesses were examined and Ex.B1, a copy of the insurance policy was filed. Through order, dated 23.03.2011, the Tribunal found that the accident occurred on account of the rash and negligent driving on the part of the driver of the lorry and that the appellant is entitled to be paid compensation of Rs.2,03,000/-. However, it dismissed the O.P. on the ground that the same was dismissed for default against respondent No.1. Hence, this appeal. The learned counsel for the appellant submits that on an earlier occasion, the O.P. against respondent No.1 was dismissed for non-payment of batta on 08.10.2007 and thereafter, the O.P. in its entirety was dismissed for default on 15.04.2008. It is stated that I.A.Nos. 841 and 1103 of 2010 were filed under Section 5 of the Limitation Act and under Order 9 Rule 9 C.P.C. respectively and that both the applications were allowed on 21.12.2010 and 07.12.20102 respectively. He further submits that the O.P. was restored to file only after service of notice on respondent No.1 and that the observation made by the Tribunal that the order of dismissal for non-payment of batta against respondent No.1 is contrary to record. The learned counsel for respondent Nos.1 and 2, on the other hand, submit that the Tribunal had proceeded on the basis of the records and the appellant cannot find fault with the same. The Tribunal recorded findings on two important aspects, namely, the liability on the part of the driver of the lorry in causing the accident and the quantum of compensation. The appellant does not have any grievance about the finding on the first issue and is not so seriously aggrieved by the finding on the second issue. The only ground on the basis of which the Tribunal dismissed the O.P. was that the same was dismissed against respondent No.1 for non-payment of batta and unless the liability is fixed upon the owner, the occasion to hold the insurer liable to pay the compensation, does not arise. If what is observed by the Tribunal is borne out by the record, no exception can be taken to the same. However, the record discloses that the O.P. was dismissed for default on 15.04.2008 and it was restored to file only after service of notice on respondent Nos.1 and 2. This fact does not appear to have been taken note of by the Tribunal. A perusal of the orders passed in I.A.Nos.841 and 1103 of 2010, dated 21.12.2010 and 07.12.2010 respectively would have clarified the issue. The Tribunal proceeded on the assumption that the order, dated 08.10.2010, through which the O.P. was dismissed against respondent No.1 for non-payment of batta remained intact. Once the O.P. was restored to file, after notice to respondent Nos.1 and 2, it cannot be said that the order, dated 08.10.2007, remained in force. Though the learned counsel for the appellant made submissions for enhancement of the compensation, this Court is not inclined to accede to the request. Hence, the appeal is allowed and it is directed that respondent Nos.1 and 2 shall be jointly and severally liable to pay the compensation of Rs.2,03,000/- with interest at the rate of 7 % per annum from the date of accident. The appellant shall be entitled to withdraw the amount as and when deposited to the credit of the O.P. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY,J Dt: 13.07.2011. kdl