Advocates:
['R K BHATIA', 'D S CHAUHAN', '', 'A K BASOTRA']

h475

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

Reserved on : 24.08.2020

Pronounced on : 09.2020

CONC No.31/2012

In and MA No.75/2012

IA No.158/2012

Joginder Kumari

...Appellant(s)

Through:- Mr. R.K.Bhatia, Advocate

V/s

National Insurance Company Limited and others ...Respondent(s)

Through:- Mr. D.S.Chauhan, Advocate for

Respondent No.1.

None for other respondents.

Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

JUDGMENT

1.

This appeal by Joginder Kumari, the owner of public service

vehicle, a Matador bearing Regd. No.9774-JK02H [ <offending vehicle=]

is directed against the award dated 4^th July, 2002 passed by the Motor

Accident Claims Tribunal, Jammu [<the Tribunal=] in file No.277/Claim

entitled Shakuntla Devi and others v. National Insurance Company Limited

and others. The appeal is delayed by 3423 days, hence an application for

condonation of delay.

2.

The delay has been sought to be explained by the appellant

contending, inter alia, that in the claim petition filed before the Tribunal,

the claimants had given incomplete address of the appellant and, therefore,

the registered notice sent to her came to be returned with the endorsement

2 Conc No.31/2012 in & MA No.75/2012

<incomplete address=. It s submitted that instead of directing the claimants

to file complete address and issuing fresh notice to the appellant, the

Tribunal permitted the claimants to serve the appellant through substituted

service. A notice in this regard was published in the daily newspaper <State

Times= in its edition dated 15^th February, 2000. Since the <State Times=

has a limited circulation and, therefore, the appellant could not know about

such notice published in the aforesaid newspaper.

3.

On the basis of substituted service, ex-parte proceedings came

to be initiated against the appellant by the Tribunal on 27^th February, 2000.

The claim petition was, however, contested by the respondent-Insurance

Company. The Tribunal passed an ex-parte award against the appellant and

directed the Insurance Company to pay a sum of Rs.3,57,044/- along with

pendente lite and future interest @ 9% per annum to the claimants with

liberty to recover the same from the appellant. The award of the Tribunal

was also not served upon the appellant. It is further pleaded that against the

award passed by the Tribunal, the Insurance Company preferred an appeal

i.e. CIMA No.44/2003, which was dismissed by this Court on 3^rd April,

2003 at the threshold without even putting the appellant and driver to

notice. The appellant complains that even at that point of time, she could

not know that an ex-parte award had been passed by the Tribunal against

her. Since the Tribunal in its award had permitted the respondent-Insurance

Company to pay the awarded compensation to the claimants and recover

the same by filing execution petition, consequently on the dismissal of

appeal, the Insurance Company paid the compensation to the claimants and

3 Conc No.31/2012 in & MA No.75/2012

in terms of the award, as upheld by the High Court, filed execution

proceedings before the Tribunal.

4.

The Tribunal issued process for execution and this was

somehow served upon the appellant. It is the further case of the appellant

that after receipt of the notice in execution, the appellant engaged a lawyer

to file application for setting aside of the ex-parte award but the advocate

engaged, who had promised to intimate the appellant about the

proceedings, failed to attend the Court and as a result the application filed

by the appellant for setting aside the ex