y. ^ **&! ?" ^tJFkT ^^Wjll^ i^l l 'NBLfc &MK1 Vl>JAy lcsnt: Vehicle owner Shri Jai Bhagwan Agarwal s/o Shri Jankidas Agarwal r/o Pithora "ehsil - Mahasamund Raipur C6 Claimant Ram Kumar t)evagaon s/o Shn Sonuram Devagcon r/o Pithora ehsii - Raipur CG Shri HS Patel, counsel for the appellant. Shri Saurabh bangi, counsel for the responderr ri wi^Af ¥ fewk/w. This aoosal under Order 43 Rule lf&) of the CPC is directed csgainst the order dated 01.08.1998 passed in MJC No.6/96 by the First Additional M.otor Accidents Claim Tribunal Mahasamund, by which the opplication filed by the appellant under Order IX Rule 13 of the GPC hos been dismissed. Respondent/cioiimcant filed an application under Motor Vehicie Act claiming compensation of Rs.1,10,000/- (Rupees one ten thousand) averring that the truck No.CPT/9055 owned by -t+ie appellcnt and driven by Ram Prasad on 10.06.1991 met with an accident. The truck driver was drivtrig the vehicle rashly and ligent!y. As a result of that aiccident, respondent/ciaimartt sustiiined injuries to his person and property. The case was registered as claim ca.se. No.19/92. i) , Due to non-representation of the appeiiant, the claim tribunal proceeded . ex-parte against the appellant and after proceeding with the case in accordance with taw, passed an ex-parte award on 20.07.1995. The appeiinnt for setting aside the ex-parte award, filed an application under Order IX Ru!e 13, read with Section 151 of the CPC on the ground that he appointed Shri Thite as his counsel to appear and plead his case; whe'n he did not receive any communication from him; he enquired the matter and came to know that on 20.07.1995 an ex-parte award has been passed against him. His application was opposed by the respondent/claimant. 4) Learned Tribunal after appreciating the eyidence, vide impugned order, rejected the application fiied by the appellant. )) Under Order IX Rule 13 of the CPC, ex-parte award ccn be set aside if it is proved that notice was not duly served or the applicant/appellant was preyented by any sufficient cause from appearing when •i+ie case was called for hearing. The instant case does not relate to non-service of notice, 1+ierefore, if the npplication has t—p -^ been filed within time and sufficient cai^se for non-cppearance on the dates of hearing is proved, ex-parte award can be set aside. 6) Under Article 123 of the LimitaTion Act 1963, thirty days time from the date of award is allowed for filing the application to set aside the ex-oarte award. In claim case No.19/92, an ex-oarte passed on 20.07.1995. The appellant has fited an appiication under Order IX Rute 13 read wi-rti Section 151 on 23.08.1996 i.e after a year from passing the ex-parte award. Admittedly, the appeiiant did not file ony application under Section 5 of the Limitation Act for of delay is the application. Leamed Tribunal correctly he!d that for setting aside the ex-parte award, period commences from 20.07.1995. The appellemt has filed his application afte" the period of iimitation without filing any appiication for condonation of delay under Section 5 of the Limitation Act. S)' Jai Bhagwan Agarwal (AW-l) alone has been examined by the appellant, who in his statement deposed that after receiving notice, he appointed an advocate Shri Thite; thereafter from time to time he met with him and enquired about his case, but 'm the cross- examination he deposed contrcry to it. Therefore, his evidence does not appear to be credible, that apcrt Advocate Thite has not been produced to support the case of the appellant.''« 9) Learned Tribunal after due appreciction of the evidence, held that the appellant without reosonable and sufficient cause remained absent when the case was calied for hearind. Learned Tribunal also held the qspiication to be barred by limitation. I am of the opinion that no irregularity or illegatity hdS been cornmitted by the Tribuna! so as to call for any interference by this Court. In the result, the nppeal fails and accordingly, it is dismissed. t'ldma 11 les to their ownj^sts. ( Sd/- VK.Shnvastava Judge