The validity of service of notice and the impact of the absence of the claim petition with the notice on setting aside an ex-parte award.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this appeal, the appellant has challenged order dated 19.02.2019, passed by the Court of learned Addl. District Judge, Solan-I in CMA No. 1-S/6 of 2015, vide which, an application filed under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as CPC) for setting aside ex-parte award, dated 19.06.2009, passed against him in MACT Petition No. 3/-S/2 of 2006, stands dismissed.

2. Brief facts necessary for the adjudication of the present appeal are that a claim petition was filed under Section 163-A of the Motor Vehicle, Act 1988 by respondents No. 1 to 3 herein on account of death of husband of respondent No. 1 and father of respondents No. 2 and 3, who died in an accident on 6.10.2004 involving the bus bearing registration No. HP 16- 1095 owned by the appellant which accident was caused on account of negligent driving of the driver, who also died in the accident.

3. The petition was allowed by the learned Motor Accidents Claims Tribunal-II, Solan, on 19.06.2009 by awarding compensation to the tune of Rs. 13,10,000/- to the claimants alongwith interest @ 12% per annum. The onus to pay the compensation amount was fixed upon the appellant on the ground that the offending bus was having no valid insurance with the insurance company at the time of accident. This award was passed ex parte against the appellant.

4. For the purpose of setting aside of said ex parte award, an application was filed by the appellant under Order 9, Rule 13 of the CPC inter alia on the ground that he was never served in the claim petition and was erroneously proceeded against ex parte by the learned Tribunal. It was mentioned in the application that no summon was received by him for appearing before the learned Tribunal and the report of the Process Server, dated 23.10.2017 qua his service was false and signatures upon the same were not his signatures. It was also mentioned in the application that on 20.11.2014 appellant came to know through his brother that warrants stood issued against him and upon receipt of the said information, when he made inquiry, he came to know that an ex-parte award stood passed against him by the learned Tribunal.

5. The application was resisted by the non-applicants on the ground that it was incorrect that appellant did not receive any summon in the claim petition or that report dated 23.10.2017 was false and did not contain the signature of the applicant. It was mentioned in the reply that not only in the claim petition, subsequently in Execution Petition also the appellant was duly served on more than one occasion, yet he chose not to appear before the Tribunal and therefore averments in the application that he came to know on 20.11.2014 through his brother about some warrants having been issued against him, were completely incorrect averments. On these grounds, non applicants prayed for rejection of the application.

6. The application was dismissed by the learned Tribunal vide impugned order, which stands assailed by way of the present appeal. While dismissing the application, learned Tribunal held that from evidence adduced on record, applicant had miserably failed to establish that he was not served in the claim petition and simple denial that notice Ext. RW1/A does not contains his signatures was of no help, in the absence of any corroborating evidence. Learned Tribunal held that statement of RW-1 (Process Server) clearly demonstrated that applicant was duly served and no evidence was led by the applicant to rebut what was stated by the Process Server. Learned Tribunal further observed that in the course of his cross-examination, a suggestion was put to Process Server by the learned counsel of the applicant that summon was not accompanied by a copy of petition which suggestion was admitted by the Process Server, which also demonstrated that version of the applicant that no notice was served upon him was incorrect. On these basis, learned Tribunal rejected the applicatio