Liability for compensation in a motor vehicle accident case is determined based on the insurance coverage at the time of the accident, as per the provisions of Order 41 Rule 21 and the Motor Vehicles Act.

A. S. NAIDU, J.

( 1 ) THIS is an application under Order 41, Rule 21 read with Section 151, CPC praying for re-hearing of Misc. Appeal no. 57 of 1992, disposed of on March 6, 1997 by this Court.

( 2 ) MISC. Appeal No. 57 of 1992 was filed under Section 173 of the Motor Vehicles Act, 1988 by opp. party No. 2 - United India Insurance co. Ltd. challenging the award passed by the Second M. A. C. T. Cuttck in Misc. Case no. 598 of 1988 awarding a sum of Rs. 80,000/- as compensation to claimant-respondents 1, 2 and 3, (petitioners ). This Court by a well-discussed judgment dated March 6, 1997 came to the conclusion that at the relevant time when the accident took place, the vehicle was not insured and that the insurance which was only for two months, had expired with effect from January 6, 1988. Admittedly, the accident took place on May 5, 1988. On the basis of such conclusion, this Court directed the compensation amount awarded by the Tribunal to be paid by the owner and not by the insurance Company.

( 3 ) THE claimant-petitioners in this application specifically averred that after receiving notice of the Misc. Appeal No. 57 of 1992 issued by this Court, petitioner No. 1, handed over all the necessary papers to their advocate shri S. N. Mohanty to do the needful, but unfortunately, shree Mohanty did not take appropriate steps, as a result of which, the appeal was heard and disposed of ex-parte and that it is a fit case where the order passed in misc. Appeal No. 57 of 1992 should be recalled and the appeal should be re-heard.

( 4 ) PERUSAL of Order 41, Rule 21, CPC reveals that the three basic ingredients mandatorily required to be satisfied for exercising jurisdiction under the said provision are: (A) The appeal should have been heard ex parte. (B) The notice on the respondents was either not duly served, or (C) The respondents were prevented by sufficient cause from appearing when the appeal was called for hearing.

( 5 ) THE order sheet of Misc. Appeal No. 57 of 1992 reveals that by order dated August 27, 1992, this Court admitted the appeal and directed to issue notice on the respondents. Admittedly, the present petitioners (claimants)were respondents 1, 2 and 3 in the appeal and the owner-opp. party No. 1 was respondent no. 4. Notices of the Misc. Appeal issued to respondents 1, 2 and 3 were received by respondent No. 1 - mother-guardian, personally for self and on behalf of minor respondent nos. 2 and 3, and the service was treated to be sufficient. The notice issued on respondent no. 4 was sufficient and the said respondent no. 4 entered appearance through Shri G. P. Mohanty and Shri H. P. Mohanty, Advocates on 25. 3. 1996. However, neither respondent no. 1 nor respondent Nos. 2 and 3, the minors entered appearance. By order dated 27. 4. 1993, this Court directed the appellant to deposit guardian's cost for appointment of court-guardian on behalf of minor respondents 2 and 3. After depositing necessary cost, Miss sanju Panda, learned Advocate was appointed as court-gaurdian on behalf of respondents 2 and 3.

( 6 ) MISC. Appeal was listed for hearing on 19. 8. 96 and the same was heard in part and was adjourned for further hearing. On 5. 11. 1996, the matter was once again adjourned on the request of the appellant. On 19. 11. 1996, the matter was heard further in part, and the same was adjourned for further hearing. Thereafter, the Misc. Appeal was heard in part on 26. 11. 1996, 29. 11. 1996, 10. 12. 96 and finally hearing was concluded on 12. 12. 1996 and the judgment was reserved. On 6. 3. 97, the judgment was pronounced in open Court.

( 7 ) PERUSAL of the judgment clearly reveals that the case was argued in extenso by Miss sanju Panda, learned Advocate appearing on behalf of minor respondents 2 and 3, Mr. G. P. Mohanty, a fairly senior advocate of this Court also argued the matter for and on behalf of the owner-respondent No. 4. It further appears from the judgment that learned counsel for respondent No. 4 (owner) whi