Dismissal of application to set aside an ex-parte award in a motor accident claim cannot solely rely on delay when a prior concession was made by the opposing party, warranting examination of justice and fairness.

JUDGMENT :

SANJAY KUMAR MISHRA, J.

1. The Writ Petition has been preferred by the Petitioner/Insurance Company challenging the Order dated 30.11.2022 (Annexure-1) passed by the District Judge-Cum-MACT, Boudh, in I.A. No.01 of 2022 (arising out of I.A. No.04 of 2015 corresponding to MAC No.11 of 2011).

2. The factual matrix, which led to filing of the Writ Petition is that the present Opposite Party Nos.1 to 3 (claimants before the court below) filed a claim application on 27.12.2011 under Section 163 -A of the Motor Vehicles Act, 1988, shortly M.V. Act, before the 3^rd Motor Accident Claim Tribunal-Cum-Additional District & Sessions Judge, which was registered as MAC No.11 of 2011.

3. Though notice was duly served on the Petitioner/Company, it failed to appear before the Tribunal. Hence, an ex-parte award was passed against the Petitioner/Company on 14.07.2014, thereby allowing the claim application of the Opposite Party Nos.1 to 3. It was directed to pay a sum of Rs.19,82,068/- to the Opposite Party Nos.1 to 3 (claimants before the court below) with 7% interest per annum from the date of filing the claim application till the date of actual payment. When an execution case was filed for non-compliance of the said award, on getting notice from the Tribunal and knowing about the said ex-parte award, the Petitioner/Company filed an application under Order-9 Rule-13 C.P.C. for setting aside the ex-parte award, which was registered as I.A. No.4 of 2015.

4. The Opposite Party Nos.1 to 3 (claimants before the court below) entered appearance and the learned Counsel for the said Opposite Parties made a submission before the Court below on 14.07.2017 that they have no objection to the prayer for setting aside the ex-parte award, subject to payment cost of Rs.1,00,000/-. However, the matter got adjourned to 17.08.2017 for further hearing in the said matter.

5. Thereafter, the matter proceeded further. When the matter was posted to 04.12.2017, on the said date it came to the notice of the court below that the service of the notices on Opposite Party Nos.4 & 5 (Opposite Party Nos.1 & 2 in M.A.C. No.11 of 2011) has not been made sufficient till the said date. Hence, instead of proceeding further to consider the prayer made in I.A. No.04 of 2015, the court below directed the present Petitioner (Opposite Party No.3 before the court below) to take steps against the said Opposite Party Nos.4 & 5 for their appearance, being the owners of the offending vehicles.

6. However, as the Petitioner did not comply the said order dated 04.12.2017 enabling the Tribunal to issue notice to the said Opposite Party Nos.4 & 5 for their appearance, I.A. No.04 of 2015 was dismissed for default on 26.07.2018.

7. Knowing about the said dismissal order dated 26.07.2018, again a Petition was filed under Order-9 Rule-9 read with Section 151 of the C.P.C. by the present Petitioner Company, which was registered as I.A. No.01 of 2022, praying therein to set aside the dismissal order dated 26.07.2018 passed in I.A. No.04 of 2015 along with an application for condonation of delay, enabling the Petitioner/Company to contest the M.A.C. No.11 of 2011.

8. Though no written objection was filed in response to prayer made in I.A. No.01 of 2022, learned Counsel for the Opposite Party Nos.1 to 3 (claimants before the court below) orally objected to the said prayer on the ground that there is a gross delay in filing the said petition and delay has not been properly explained.

9. Ultimately, vide Order dated 30.11.2022, I.A. No.01 of 2022 was dismissed on the ground of long delay and not explaining the said delay properly in a convincing manner so as to enable the Tribunal to