GAJENDRA Vs. NATIONAL INSURANCE COMPANY

JUDGEMENT

(1.) THIS appeal is against the order dated 11.01.1994 passed by the learned III M.A.C.T., Balasore in Misc. Case No. 2 of 1992 rejecting the petition under Order -9, Rule -13, C.P.C. to set aside the award passed in Misc. Case No. 127/126(C) of 1988/82.

(2.) THE present Appellant is the owner of the offending vehicle against whom the award in Misc. Case No. 127/126(C) of 1988/82 was passed ex parte. To have the ex parte award set aside, the present Appellant made an application under Order -9, Rule -13, C.P.C. taking the ground that due to his illness he was prevented from appearing before the learned III M.A.C.T., Balasore to take part in the proceeding relating to the accident claim case. In the proceeding under Order -9, Rule -13, C.P.C., the claimant did not appear but the Insurance Company, who had made a party to the accident claim case appeared and filed counter controverting the plea of illness. The present Appellant adduced evidence by examining himself as a witness. He exhibited one medical certificate to prove his illness during the relevant period. Learned Tribunal did not accept his evidence as reliable on the ground that the doctor, who had issued the certificate, was not brought to the witness box. That apart, in the certificate exhibited by the Appellant it was not specifically mentioned that the Appellant was under the treatment of the doctor who issued the certificate. Accordingly, the petition for setting aside the ex parte award was dismissed.

(3.) IN course of argument learned counsel for the Appellant submits that though the offending vehicle was covered under a valid policy issued by the Respondent No. 1 -Insurance Company, because of the Appellant's non -participation in the proceeding award has been passed against him directing him to pay the amount under award without any direction to the Insurance Company to indemnify the insured vehicle owner. A copy of the insurance certificate is produced before this Court. Learned counsel for the Respondent No. 1 fairly submits that the Insurance Company has no objection if the matter is remanded back to the learned Tribunal for disposal of the claim case afresh provided the Appellant should be directed to furnish the full particulars about the insurance certificate including the branch of the Insurance Company which has issued the certificate.