- (1.) PRADEEP Kant and Rajiv Sharma, JJ. Heard Mr. Vineet Mishra, learned Counsel for the appellant and Mr. Manoj Sahu, learned Counsel for the claimant-respondents.
(2.) WITH the consent of learned Counsel for the parties, we are deciding the F. A. F. O. finally. A claim petition was filed by the claimant-respondents under the pro visions of Motor Vehicles Act claiming compensation because of the death of the son of Vijay Pal and the husband of Smt. Sarla. The appellant was duly served and he participated in the proceedings but on 14. 12. 2005 when the case was fixed for final hearing (leading evidence) he did not appear. The hearing was adjourned on 17. 1. 2006 and the award was pronounced on 21,1,2006 fixing the liability upon the appellant including the payment of compensation. It was thereafter when execution proceedings were started the appellant moved an application for setting aside the ex parte award pronounced by the Tribunal under Order IX, Rule 13, C. P. C. Objections were filed by the claimant-respondents and the learned Tribunal came to the conclusion that the story set up by the appellant was not acceptable and the Tribunal also found that the absence of the appellant was only a device to linger on the proceedings. The claim petition is pending since 2002 and the appellant was no' only duly served but has the knowledge of the proceedings of each and every day. The reasons given for his absence that a wrong date was noted by the Counsel has not been found as correct by the Tribunal and we also find that there is no illegally in the findings recorded by the Tribunal. However, in view of the fact that the appellant was contesting the case throughout and he became absent only on one day, i. e -. 14. 12. 2005 may be because of the fault of Counsel as is alleged by him. and the Counsel does not dispute about the allegation made in the petition that he wrongly noted the date. We do find it necessary that the appellant should not be denied oppor tunity of hearing or leading evidence merely because of the fault of the Counsel, even if the explanation for his default in attending the case is ac cepted as correct.
(3.) UNDER these circumstances, we set aside the ex parte order passed by the Motor Accident Claims Tribunal, subject to the condition that the appellant shall deposit half of the amount awarded by the Tribunal plus up-to-date in terest on that amount within a maximum period of two months from today. The amount so deposited shall be allowed to be withdrawn by the claimant-re spondents, subject to further orders passed in the claim petition. The claim peti tion shall be decided after giving opportunity of hearing to the learned Counsel for the parties to adduce further evidence, if they so desire. The matter is quite old therefore, it shall be decided within a maximum period of six months from the date of receipt of a certified copy of this order. In case, the amount is not deposited by the appellant, the benefit of this order would not be available to the appellant and the F. A. F. O. shall stand dismissed. With these observations and directions, the F. A. F. O. is disposed of finally. .;