[2025:RJ-JP:17390] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Application No. 60/2023 In S.B. Civil Miscellaneous Appeal No.5804/2016 Roshan Singh Sonof Shri Bahadur Singh, R/o Bhawanipeth Puna, At Present L/hawaldar 318, Medium Regiment, Nasirabad, District Ajmer (Raj.) ----Appellant/Claimant Versus 1. Harish Kumar Son Of Shri Ramesh Chand, R/o House No. 3/23, Palsaniya Road, Nasirabad City, District Ajmer, (Driver And Owner Of Nano Car No. Rj-01-Cb-4512) 2. New India Assurance Company Ltd. Through Divisional Manager, Kotwali Scheme, Ajmer. (Insurer Of Nano Car No. Rj-01-Cb-4512) ----Respondents/non-claimants For Petitioner(s) : Mr. Alok Chaturvedi with Mr. Bhawani Shankar For Respondent(s) : HON'BLE MR. JUSTICE MANEESH SHARMA Order 24/04/2025 1. The present miscellaneous application has been filed by the respondents/non-claimants under Section 173 of the Motor Vehicles Accident Act, 1988 with a prayer to recall the judgment dated 22.05.2019 passed by this Court in SBCMA No.5804/2016. 2. Brief facts of the case giving rise to the present application are that on i.e. 08.05.2018, the claim petition was filed by the claimant-Roshan Singh stating that on 23.01.2013 around 08:30PM when the claimant was going on his Motor Cycle (Motor [2025:RJ-JP:17390] (2 of 6) [CMAP-60/2023] Cycle No.RJ-36-SA-3129) to his quarter from Shopping Center, a Nano Car No. RJ-01-CB-4512 was coming from Ajmer side and the applicant (respondent No.1/non-claimant No.1) was driving the said Car in rash and negligent manner. Due to negligence of applicant (respondent No.1/non-claimant No.1), an accident occurred and claimant sustained grievous injuries. It was also stated that the claimant, 32 years of age, was serving as Nayab Hawaldar in Indian Army, therefore, he is entitled for compensation under different heads. 3. That the present applicant contested the original claim petition by filing his reply and contended that the claimant was himself driving the motorbike in a rash and negligent manner and he had taken the turn without giving any indicator signal. Because of his negligence, the accident occurred. The applicant submitted that there was no fault or negligence on the part of the present applicant and the alleged car was insured with the non-claimant No.2-Insurance Company. Thus, the applicant prays for dismissal of the claim petition. 4. The non-claimant No.2-Insurance Company has also filed response/reply to the claim petition and denied the averments made therein. The non-claimant No.2-Insurance Company also took the defence that there was a violation of the terms and conditions of the policy. 5. That in the original proceedings, the present applicant, after filing the reply, remained ex-parte and that the learned MACT, Ajmer while hearing the parties, allowed the claim petition vide order dated 08.09.2016 and awarded a compensation of Rs.5,68,350/- against both the non-claimants (the present [2025:RJ-JP:17390] (3 of 6) [CMAP-60/2023] applicants Harish Kumar as well as New India Assurance Company Ltd.). 6. But the learned MACT, Ajmer, decided issue No.3 while observing that there was a violation of the condition of policy as the driver of the vehicle was not having valid and effective driving license on the date of accident. Thus, it granted liberty to the Insurance Company to pay and recover the said compensation amount from the applicant. 7. It is also relevant that being aggrieved of awarding partial amount of compensation, the claimant preferred SBCMA No.5804/2016 before this Court for enhancement. In the said appeal, service upon the present applicant was dispensed with vide order dated 17.12.2018, thereafter, the appeal was heard on merits and this Court vide order dated 22.05.2019, this Court enhanced the compensation from Rs.5,68,350/- to Rs.20,25,536/-. 8. That the Insurance Company pursuant to the directions given by the learned MACT, Ajmer submitted an application under Section 174 of Motor Vehicles Act for recovery of amount paid to the claimants awarded under the award dated 08.09.2016 and as well as modified dated 22.05.2019 award. On the said application, letter No.910 dated 30.11.2016 was issued by the Collector, Ajmer to the present applicant for recovery. On receiving the said notices, the present applicant filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte order before the learned MACT, Ajmer. The learned MACT, Ajmer dismissed the said application under order 9 Rule 13 CPC vide order dated 12.01.2013 mainly on two grounds that the applicant was served [2025:RJ-JP:17390] (4 of 6) [CMAP-60/2023] with the notice of the claim petition and that he has filed his reply to the claim petition. Thus, it is evident that the claimant was having knowledge about the proceedings. Therefore, there is no occasion to set aside the award dated 08.09.2016. The learned MACT, Ajmer also taken into fact that the original award dated 08.09.2016 was modified by this Court while hearing SBCMA No.5804/2006, wherein the compensation amount was enhanced from Rs.5,68,350/- to Rs.20,25,536/-. Therefore, once the award has been upheld and modified by this Court, the application under Order 9 Rule 13 CPC cannot be accepted. 9. That after dismissal of application Under Order 9 Rule 13 CPC, the present applicant/non-claimant No.1 has preferred this application for recalling of the order dated 22.05.2019. 10. Learned counsel for the applicant submits that despite taking best efforts, applicant has not been heard and he further submits that in SBCMA No.5804/2016, since his service was dispensed with, therefore, he has no knowledge about the fact that the award dated 08.09.2016 was modified by this Court vide order dated 22.05.2019. He further submits that his application under Order 9 Rule 13 CPC has been rejected by the learned MACT, Ajmer vide order dated 12.01.2023, while taking into account, the order dated 08.09.2016 has been modified by this Court. He further submits that since no proper opportunity was granted to contest the case on merits. Therefore, order dated 22.05.2019, deserves to be recalled. 11. Heard learned counsel for the applicant and perused the impugned order as well as the record available. [2025:RJ-JP:17390] (5 of 6) [CMAP-60/2023] 12. From a bare perusal of the record of the case, it reveals that the claimant filed a claim petition under Section 166 of Motor Vehicles Act on 08.05.2013 with regard to an accident which took place on 23.01.2013, wherein the present applicant was served with a notice and he filed his reply to the claim petition. Later on, the present applicant choose not to appear and contest the said claim petition and the said claim petition No.297/2013 was allowed ex-parte and a compensation amounting to Rs.5,68,350/- was awarded along with the interest during the adjudication of that claim petition. The learned MACT, Ajmer came to the conclusion while deciding the issue No.2 that the applicant was not having a valid and effective driving license. Therefore, the learned MACT, Ajmer, given the finding that there was a violation of the policy conditions, thus, directed the Insurance Company to pay the amount to the claimants and then recover the same from the owner or the driver of the vehicle. 13. From the record of the case, it is quite clear that it is not a case where the applicant was not afforded opportunity. Rather, it is a case where the applicant was served with a notice of the claim petition but he choose not to defend the same. Therefore, the ex- parte proceedings were initiated and the claim petition was allowed on 08.09.2016. Being aggrieved by the award, accepting the partial claim, the claimants preferred SBCMA No.5804/2016 and the same was allowed by this Court vide order dated 22.05.2019. Thus, present application has been filed after almost four years from the original order which reflects that application filed by applicant is not bona fide. [2025:RJ-JP:17390] (6 of 6) [CMAP-60/2023] 14. The present application for recalling has been filed on the sole ground that his client has not been given the opportunity to be heard. Therefore, the judgment dated 22.05.2019 needs to be recalled. The argument of the learned counsel is patently false since the applicant himself remained negligent and despite filing his reply to the original claim petition. he choose not to appear and contest the claim. Now the appellant is estopped to seek recalling of the order dated 22.05.2019. 15. The present claim petition was filed in the year 2013 and the claim was decided on 08.09.2016, which was further enhanced on 22.05.2019. The present application for recalling the order has been filed on 10.04.2023 after the decision of dismissal of the application under Order 9 Rule 13 CPC vide order dated 12.01.2023. It reflects that the contentions of the applicant are not bona fide, he himself is guilty of not pursing or defending the case, therefore, there is neither good nor sufficient reason to recall the order dated 22.05.2019 passed by this Court in SBCMA No.5804/2016. 16. The application for recalling the order is devoid of merits and is liable to be dismissed with no order as to costs. (MANEESH SHARMA),J Seema/23