IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.3676 of 2008 (O&M) Date of Decision : 26.11.2009 Pankaj Batra .....Petitioner versus United India Insurance Company Ltd. .....Respondent CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.Sagar Deswal, Advocate, for the petitioner. Mr.Neeraj Khanna, Advocate, for the respondent. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- ORDER Surya Kant, J. (Oral) This revision petition is directed against the order dated 21.5.2008 passed by the Motor Accident Claims Tribunal, Faridabad (hereinafter referred to as `the Tribunal'), whereby an application under Order 9 Rule 13 CPC, moved by the petitioner to recall the ex-parte award dated 12.1.2004 has been dismissed. The petitioner is the owner of truck No.HR-38D-9180. He had kept one Mobin Ahmad, as the driver of the truck. It is alleged that on 22.1.2001, the petitioner's truck, met with an accident near village Sondh, District Faridabad, resulting into the death of Sukh Ram @ Deepu. The widow and parents of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 in which the petitioner-owner of the C.R. No.3676 of 2008 (O&M) 2 truck was impleaded as respondent Nos.2 besides Mobin Ahmad-driver as respondent No.1 and United India Insurance Company as respondent No.3. The petitioner was proceeded against ex-parte on 12.9.2003 and thereafter the award dated 12.1.2004 was passed granting compensation of Rs.2,68,800/- to the claimants alongwith 9% interest. The Insurance Company, the petitioner and the driver of the truck were held jointly and severally liable to pay the compensation amount. However, liberty was granted to the Insurance Company to recover the amount, if paid by it, from the petitioner-owner of the truck. The above stated liberty was granted by the Tribunal after holding that the driver Mobin Ahmad was not in possession of a valid driving licence at the relevant time. The respondent-Insurance Company has paid the compensation to the claimants. Thereafter, it filed the execution proceedings against the petitioner and upon receipt of notice, he moved an application under Order 9 Rule 13 CPC to recall the ex-parte award dated 12.1.2004, which has been dismissed by the Tribunal vide the impugned order. The petitioner's case is that he had engaged a counsel who assured to protect the petitioner's interest. However, when the execution proceedings were initiated, only then he came to know about the ex-parte award passed against him. The petitioner has also taken a plea that the driver of the truck was possessing a valid driving licence at the relevant time. Notice of motion was issued and pursuant thereto, counsel for C.R. No.3676 of 2008 (O&M) 3 the petitioner as well as the respondent-Insurance Company have been heard at some length. The solitary question that arises for consideration is as to whether or not the petitioner should be granted an opportunity to prove that the driving licence possessed by the truck driver Mobin Ahmad at the relevant time was valid or that he had taken sufficient precautions at the time of engaging Mohin Ahmad as his driver, and as to whether or not the ex-parte proceedings to the aforesaid limited extent are liable to be set- aside? Since the compensation amount has already been paid to the claimants, in my considered view, the award dated 12.1.2004 need not be set-aside in entirety. The findings on Issue No.3 and on the limited issue as to whether or not the driving licence possessed by the driver of the truck at the relevant time, can be reconsidered by the Tribunal without affecting the award to the extent of determination of compensation entitlement of the claimant to receive the same. It does appear that the petitioner engaged a counsel who kept on appearing on his behalf till 1.8.2003. It is only when no evidence was produced by the petitioners that his counsel did not appear on 12.9.2003 and the petitioner was proceeded against ex-parte. In the given circumstances, it cannot be said that the petitioner was grossly negligent in defending himself before the Tribunal. Be that as it may, it is not in dispute that the truck was insured at the relevant time. The petitioner, therefore, appears to be well within his C.R. No.3676 of 2008 (O&M) 4 legitimate right to contend that given one opportunity, he is willing to prove that the driving licence possessed by the driver of the truck at the relevant time was genuine or that he was careful enough before the driver was engaged. For the reasons afore-stated, this revision petition is allowed; the impugned order dated 21.5.2008 passed by the Motor Accident Claims Tribunal, Faridabad, is set-aside and the application under Order 9 Rule 13 CPC, moved by the petitioner, is allowed in part and the award dated 12.1.2004 is modified to the extent that the petitioner shall be given one effective opportunity to produce the official witness through the Court process and private witnesses at his own responsibility to prove the validity/genuineness of the questioned driving licence of Mobind Ahmad- driver of the truck, at the relevant time. The respondent-Insurance Company shall also be at liberty to lead evidence to rebut the plea sought to be taken by the petitioner. The petitioner shall also be liable to pay the cost of Rs.10,000/- to the respondent-Insurance Company. The matter is accordingly remitted to the Motor Accident Claims Tribunal, Faridabad, only for this limited purpose. The Tribunal shall pass appropriate orders within three months from the date of receiving a certified copy of this order. Till then, execution of the proceedings against the petitioner shall be kept in abeyance. Dasti. 26-11-2009 (SURYA KANT) Mohinder JUDGE