JUDGMENT R.K. Rastogi, J.
1. This is an appeal against the order dated 13.10.1993 passed by Shri R.S. Kashyap, then IV Addl. District Judge, Varanasi in Civil Misc. Case No. 9 of 1993 Abdul Rashid v. Smt. Pyari Devi.
2. The facts relevant for disposal of this appeal are that the petitioner-opposite party Nos. 1 and 2 had filed Motor Accident Claim Petition No. 75 of 1989 against the opposite party repsondent Nos. 1 and 2 and respondent No. 3 for recovery of Rs. 7,38,000/- as compensation from the opposite parties. It was alleged in that petition that Shesh Narain Singh, who was husband of the petitioner No. 1 Pyari Devi and father of petitioner No. 2 Awadesh Kumar Singh was coming on car No. UPX 4056 from Varanasi on 17.11.1988. The car was being driven very slowly and carefully. However, when the car reached near village Rathauna on G.T. Road Police Station Mirzamurad, District Varanasi at about 12.30 mid night, truck No. UPW 3141 came from the side of Allahabad. It was owned by appellant No. 1 Abdul Rashid and was being driven by Shiv Bodhan appellant No. 2 in negligent manner. It collided with the car. Consequently, Shesh Narain Singh, car driver and one Vijai Narain Singh died as a result of the injuries received by them in that incident. The truck driver ran away leaving the truck on the spot. F.I.R. of the incident was lodged by Ram Jiawan Singh at Police Station Mirzamurad, Varanasi, and on the basis of the same a case under Sections 279,304- A and 427, I.P.C. was registered against the driver of the truck. Shesh Narain Singh's age was 50 years at that time. He was earning Rs. 2,000/- per month by selling milk of buffalo and cow and he was also saving Rs. 10,000/- per year by doing agricultural work. The petitioners, therefore, claimed Rs. 6,80,000/- for monetary loss for a period of twenty years at the rate of Rs. 34,000/- per annum + Rs. 10,000/- for the loss of consortium to petitioner No. 1 + Rs. 10,000/- for mental agony to petitioner No. 1 and Rs. 10,000/- for mental agony for petitioner No. 2; Rs. 3,000/- for funeral expenses and Rs. 25,000/- for no fault liability, in all Rs. 7,38,000/-.
3. The opposite party appellants did not appear before the Motor Accident Claims Tribunal inspite of sufficient service of summons. The opposite party respondent No. 3 Smt. Madhuri Devi filed written statement in which she stated that she is a widow. Her husband had died on 28.9.1987 and so on the relevant date of accident her husband was not owner of car No. UPX 4056 and she has been unnecessarily impleaded in this case.
4. The learned Presiding Officer of the Motor Accident Claims Tribunal after hearing of the case decreed it for recovery of Rs. 6,80,000/- as compensation from the opposite party appellants. It was dismissed against opposite party respondent No. 3 Smt. Madhuri Devi. This order was passed on 29.4.1991.
5. On 14.5.1993 the opposite party appellants moved an application under Order 9 Rule 13, CPC for setting aside the aforesaid ex parte judgment and decree dated 29.4.1991 with these allegations that no summons had been served upon them and they had come to know about the case for the first time on 15.3.1993 when the recovery warrant was received by them. This application for setting aside the above order was rejected by the said Tribunal on the ground that the judgment and order dated 29.4.1991 is not ex parte but on merits. Aggrieved with that order, Abdul Rashid and Shiv Bodhan have filed this appeal.
6. We have heard learned Counsel for the appellants. None appeared for the repondents inspire of sufficient service of notice.
7. It was submitted by the learned Counsel for the appellants that the order passed by the learned Presiding Officer of the Motor Accident Claims Tribunal was an ex parte order and he erred in law by rejecting the application moved under Order 9 Rule 13, CPC for setting aside the ex parte order.
8. We have gone through the record as well as the judgment of the Presiding Officer of the Tribunal. It is to be seen that issues had been framed in this case on the basis of the pleadings of the petitioners and Smt. Madhuri Devi opposite party respondent No. 3 and findings on those issues have also been recorded on the basis of the evidence led by these parties. It is to be seen that these findings have been recorded between the petitioners and opposite party No. 3 Madhuri Devi, and so far as the appellants are concerned, the judgment is ex parte against them. As such there was no legal bar in setting aside this ex parte judgment and order on the application of the appellants moved under Order 9 Rule 13, CPC. It is also to be seen that it was in the interest of the parties also to set aside the aforesaid ex parte judgment and order taking this fact into consideration that as per the case of the appellants, the vehicle was insured with the Oriental Insurance Company and so after setting aside ex parte judgment and order the Insurance Company could have been impleaded as an opposite party in the case and if after hearing of the case the Insurance Company is found to be liable to pay the amount of compensation, it could be easily recovered from the Insurance Company instead of private persons, the appellants.
9. There is one more aspect of the case. The accident in question had taken place on 17.11.1988 and by an ex parte award against the appellants a sum of Rs. 6,80,000/- was awarded to the petitioner respondent Nos. 1 and 2. We are of the view that under these circumstances taking this fact into consideration that the petitioners have not yet received any amount as compensation, it will be in the interest of justice that the application for setting aside ex parte judgment and order should be allowed on payment of Rs. 50,000/- (Rupees fifty thousand only) to the petitioners respondent Nos. 1 and 2. This amount shall be liable to be adjusted in the amount of compensation that may be awarded in the case and if the Insurance Company is found liable to bear the amount of compensation, the appellants shall be entitled to recover this amount from the Insurance Company. The appellants are allowed two months' time to deposit this amount.
10. The appeal is, therefore, allowed subject to deposit of Rs. 50,000/- (Rupees fifty thousand only) by the appellants. This amount shall be deposited in the Court of IV Addl. District Judge, Varanasi within two months from the date of order, failing which, the appeal shall stand dismissed. If the above amount is deposited within time, ex parte award dated 29.4.1991 passed against the appellants shall stand set aside and the appellants shall be permitted to contest the motor accident claim petition No. 75 of 1989 on merits. The amount, if deposited, shall be payable to the petitioner respondents without any security and this amount shall be liable to be adjusted in the amount of compensation that may be awarded in the case and if the Insurance Company is found liable to pay the amount of compensation, the appellants shall be entitled to recover this amount also from the Insurance Company.
11. The parties shall appear in the Court of the IV Addl. District Judge, (Motor Accident Claims Tribunal), Varanasi on 25.7.2005.