Summons – Service of Summons by registered post – Presumption of service through registered cover after 30 days of its issuance is available only if defendants is residing within territorial jurisdiction of Court which has issued summons through registered post

Mrs. Rekha Mittal, J.:- Challenge in the present appeal has been directed against order dated 26.10.2012 passed by the Motor Accidents Claims Tribunal, Fast Track Court, Jalandhar (in short “the Tribunal”) whereby application for setting aside ex parte award dated 16.4.2009 filed by Khazan Chand (respondent No. 2 therein) by invoking Order 9 Rule 13 of the Code of Civil Procedure (in short “the Code”), was dismissed.

2. Counsel for the appellant would argue that Khazan Chand being registered owner of alleged offending vehicle Tata 709 bearing No. PB-07-E-2217 was impleaded as respondent in claim application under Section 166 of the Motor Vehicles Act, 1988 (in short “the Act’) filed by Bimla Rani and others in regard to death of Paramjit Singh in a motor vehicular accident. The Tribunal passed award on 16.4.2009 whereby the claimants were allowed compensation of Rs. 4,65,000/-, payable with interest but the insurance company was held entitle to recover the amount of compensation from the driver and owner of offending vehicle after payment of compensation to the claimants as the driver did not possess a valid licence. It is argued that the appellant did not receive any summons either through ordinary process or registered cover, therefore, ex parte proceedings initiated against the appellant and ex parte award dated 16.4.2009 cannot be allowed to sustain. It is further argued that no sooner the appellant got knowledge of passing of ex parte award when some official from office of Naib Tehsildar came to him and revealed that order has been passed by the Court for attachment of his property, he immediately filed application for setting aside the ex parte award. Counsel would inform that claim of victim family has already been satisfied by the insurance company and even the appellant has already paid the amount to the insurance company, in terms of recovery right given by the Tribunal but the Tribunal without providing an opportunity of hearing to the appellant has fastened recovery right against the appellant as well as driver of the offending vehicle even in absence of any privity of contract between the insurer and the driver.

3. Counsel for the insurance company has supported the impugned order with the submission that the Tribunal has rightly passed order dated 28.3.2008 whereby the driver and owner of offending vehicle were proceeded against ex parte.

4. Counsel representing the appellant, in reply, would argue that even if it is assumed that the Tribunal has sent notice through registered cover, as the appellant is residing outside the jurisdiction of the Court at Jalandhar, no such presumption with regard to service of appellant through registered cover on expiry of period of 30 days is otherwise available. In support of his contention, he has relied upon judgment of the Himachal Pradesh High Court M/s Aar Kay Traders vs. M/s Satish Electronics, 2009 (4) Civil Court Cases 157.

5. Counsel for the insurance company, while refuting contention of the appellant would argue that as the appellant is residing in Hoshiarpur and claim proceedings were pending in the Court at Jalandhar, since Hoshiarpur and Jalandhar fall in the same state i.e. State of Punjab, the appellant cannot derive any advantage to his contention from the provisions of Order 5 Rule 9 (4) nor can seek aid of what has been held by the Himachal Pradesh High Court in M/s Aar Kay Traders’s case (supra).

6. I have heard counsel for the parties, perused the paper book and records of MACT case No. 7 of 2008 in which ex parte award was passed.

7. The claim application was registered on 22.1.2008 and notice to the respondent was issued on registered cover within three days for 25.2.2008. There is a report in the margin with regard to non-receipt of notice and the same is dated 23.2.2008. On 25.2.2008, appearance was caused on behalf of the insurance company and summons of respondents No. 1 and 2 therein were ordered to be issued for 28.3.2008 on registered cover