1 2026:HHC:35999 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. : 568 of 2019 Reserved on : 04.08.2026 Decided on : 25.08.2026 Uploaded on : 25.08.2026 Durga Singh …Appellant Versus Desh Raj and another …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Devender Sharma and Mr. Guna Nand Verma, Advocates. For the respondents : Mr. L.S. Mehta, Advocate, for respondent No. 1. None for respondent No. 2. Virender Singh, Judge. Appellant-Durga Singh has filed the present appeal, under Order 43 Rule 1 (d) read with Section 104 of the Code of Civil Procedure (hereinafter referred to as the 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2026:HHC:35999 ‘CPC’), against the order, dated 5th August, 2019, passed by the learned Motor Accident Claims Tribunal-II, Mandi, District Mandi, H.P. (hereinafter referred to as ‘the Tribunal’) in Civil Miscellaneous Petition No. 12/2013, titled as Durga Singh versus Desh Raj and another, whereby the application, under Order IX Rule 13 of the CPC, filed by the appellant, for setting aside the ex parte order, dated 9th January, 2012 and ex parte award, dated 30th March, 2012, passed by the learned Tribunal in MACT No. 37 of 2008, has been dismissed. 2. For the sake of convenience, parties to the lis, are hereinafter, referred to, in the same manner, in which, they were referred to, by the learned Tribunal. 3. Brief facts, leading to the filing of the present appeal, before this Court, as borne out from the record, may be summed up, as under: 3.1. Petitioner-Desh Raj has filed claim petition, under Section 166 of the Motor Vehicles Act (hereinafter referred to as the ‘MV Act’), seeking compensation on account of the injuries sustained by him, in a motor vehicular accident, involving Mahindra Pick Up, bearing registration No. HP 30 3 2026:HHC:35999 4041 (hereinafter referred to as ‘the offending vehicle’), owned by respondent No. 1-Durga Singh and insured with respondent No. 2. 3.2. According to the petitioner, the accident had taken place on 21st January, 2007, at about 02.00 a.m., when, he, alongwith respondent No. 1 and Dharam Pal (since deceased) was coming from Manali to Pangna. The petitioner had hired the offending vehicle and the same had met with an accident, resulting into the multiple injuries to the petitioner and death of the driver of the offending vehicle, namely, Dharam Pal. 3.3. As per the case of the petitioner, the accident had taken place due to the rash and negligent driving of the driver-Dharam Pal (since deceased), as, he was driving the offending vehicle at high speed, due to which, he could not control the same. Consequently, FIR No. 12 of 2007, under Sections 279, 338 and 304A of the Indian Penal Code, was registered against him, at Police Station Karsog. 3.4. The petitioner has also pleaded that in the said accident, he had sustained injuries and thereafter, he was taken to Civil Hospital, Karsog, from where, he was referred 4 2026:HHC:35999 to IGMC, Shimla, where, he underwent surgery of his stomach and foot. Asserting the fact that due to the injuries sustained in the accident, he has become disabled, as such, the petitioner has sought compensation, from the respondents. 4. When, put to notice, the claim petition has been contested by respondent No. 1, by denying the factual position, as mentioned in the claim petition. The factum of accident and registration of FIR has been admitted by respondent No. 1. The factum of petitioner being travelling in the offending vehicle, as owner of goods, has also been admitted. 5. The Insurance Company has filed the separate reply to the claim petition, by taking the preliminary objections, that the driver of the offending vehicle was not holding a valid and effective driving license to drive the same; the offending vehicle was being plied in violation of the terms and conditions of the insurance policy; and there is collusion between the petitioner and the owner of the offending vehicle. 5.1. On merits, the contents of the claim petition have been denied for want of knowledge. 5 2026:HHC:35999 6. Thus, the respondents have prayed for the dismissal of the claim petition. 7. On the pleadings of the parties, the learned Tribunal has framed the issues, vide order, dated 6th April, 2010. Thereafter, the matter was fixed for evidence. The evidence of the petitioner was closed on 12th August, 2011. The matter was subsequently fixed for the evidence of the respondents on 9th November, 2011 and 9th December, 2011. On both the dates, neither steps were taken, nor the respondents’ witnesses were present. However, on 9th January, 2012, the learned counsel appearing for respondent No. 1 has made a statement that despite repetitive reminders/letters to respondent No. 1, he has not imparted any instructions to him. He has also placed on record copy of the letter, Ex. RX. On his statement, respondent No. 1 was ordered to be proceeded against ex parte. Thereafter, the learned Tribunal has passed the award, on 30th March, 2012, awarding a sum of 23,000/- to the petitioner, alongwith ₹ interest @ 7.5% per annum, from the date of filing of the petition till the date of deposit, by fastening the liability, to pay the compensation, upon respondent No. 1. 6 2026:HHC:35999 8. Respondent No. 1, subsequently, on 8th January, 2013, moved application, under Order IX Rule 13 of the CPC, for setting aside the ex parte order, dated 9th January, 2012, as well as, the award, dated, 30th March, 2012. 9. The said application has been moved, on the ground, that after receiving the notices of the claim petition, he had engaged Mr. O.P. Verma, Advocate, who has filed the reply on behalf of respondent No. 1 and 9th January, 2012, the applicant-respondent No. 1 could not appear, as such, he was proceeded against ex parte. 10. According to the applicant-respondent No. 1, he came to know about the passing of the ex parte award, only on 5th November, 2012, when, he received summons in Execution Petition and then, he came to know about the fact that the award of 31,050/- has been passed against him, ₹ on 30th March, 2012. He, thereafter, contacted his counsel, who disclosed to him that he had written a letter to the applicant-respondent No. 1 regarding his evidence and conveyed orally, but, unfortunately, he never received any letter. 7 2026:HHC:35999 11. Asserting the fact that the applicant-respondent No. 1 came to know about the decision of the case, only on 5th November, 2012, according to the applicant-respondent No. 1, he applied for the copy of the judgment, which was received by him on 1st December, 2012. According to applicant, due to his illiteracy, he could not apply for the copy of the ex parte order, dated 9th January, 2012 and the same was applied on 11th December, 2012, which was received by him 18th December, 2012 and thereafter, he has filed the said application. 12. Alongwith the said application, an application, under Section 5 of the Limitation Act, has also been moved, with a prayer to condone the delay, in filing the application, under Order IX Rule 13 of the CPC. 13. Both the applications have been contested by the petitioner, as well as, the Insurance Company, by filing the separate replies. 14. In the reply filed by the petitioner, the application, under Order IX Rule 13 of the CPC, is stated to be not maintainable and hopelessly barred by limitation. On 8 2026:HHC:35999 merits, the contents of the application have been controverted. 15. Similar stand has been taken by the Insurance Company, while filing reply to the said application. 16. From the pleadings of the parties, the learned Tribunal has framed the following issues, on 9th December, 2013: “1. Whether the applicant was wrongly proceeded ex parte on 09.01.2012 as he was not summoned by the Court, as alleged? OPA 2. Whether the applicant is having genuine and justified reasons for filing the application beyond limitation period, as alleged? OPA 3. Whether the present application is not maintainable? OPR 4. Relief.” 17. Thereafter, parties to the lis were directed to adduce the evidence. Subsequently, vide order, dated 5th August, 2019, the application, under Order IX Rule 13 of the CPC was dismissed. 18. Feeling aggrieved from the said order, the same has been assailed before this Court, by way of the instant appeal, mainly on the ground, that the learned Tribunal has committed an illegality and material irregularity, in 9 2026:HHC:35999 dismissing the application, under Order IX Rule 13 of the CPC, filed by respondent No. 1 (owner) for setting aside the ex parte award, dated 30th March, 2012 and ex parte order, dated 9th January, 2012, as, the learned Tribunal has not taken into consideration the fact that he was proceeded ex parte, on the basis of the letter, Ex. RX, whereas, he has not received any communication. 19. The ex parte order has also been sought to be set aside, on the ground, that the same is not based on the correct appreciation of the provisions of law. 20. On the basis of the above facts, Dr. Ravi Patial, learned counsel appearing for the appellant-respondent No. 1 (owner) has prayed that the present appeal may kindly be allowed, by setting aside the order, dated 5th August, 2019. A prayer has also been made to allow the application, under Order IX Rule 13 of the CPC, setting aside the ex parte order dated 9th January, 2012 and ex parte award, dated 30th March, 2012, passed by the learned Tribunal. 21. Per contra, Mr. L.S. Mehta, learned counsel appearing for respondent No. 1-petitioner (claimant) has supported the order, dated 5th August, 2019, passed by the 10 2026:HHC:35999 learned Tribunal, on the ground, that the learned Tribunal has rightly appreciated the rival contentions of the parties and the said order does not require any interference, by this Court. 22. The controversy, in the present case, emanates from the claim petition, filed under Section 166 of the MV Act, by virtue of which, petitioner-Desh Raj has sought compensation, on account of the injuries sustained by him, in a road side accident, involving the offending vehicle, owned by respondent No. 1 (appellant herein) and insured with respondent No. 2. Unfortunately, driver of the offending vehicle has expired in the accident in question. 23. In the said case, the learned Tribunal has proceeded ex parte against respondent No. 1 (owner) on 9th January, 2012, on the basis of the fact, that the counsel representing him, has pleaded no instructions and placed on record the letter, Ex. RX. The said letter has been exhibited by the learned Tribunal, while recording the statement of the counsel representing respondent No. 1-owner. 24. In this letter, which bears the date as ‘9.11.11’, the counsel has intimated respondent No. 1-owner, that his 11 2026:HHC:35999 case has been listed before the learned Tribunal on various dates, but, he is not appearing for evidence, nor, attended the office or paid the fees and he has requested respondent No. 1-owner to contact him, after receiving the said letter, otherwise, he (respondent No. 1-owner) will be responsible for the proceedings, being conducted before the learned Tribunal. 25. Although, the complete Code of Civil Procedure is not applicable to the proceedings under the MV Act, but, this does not mean that the learned Tribunal is at liberty to proceed with the claim petition, ignoring the principles of natural justice. 26. Considering the previous conduct of respondent No. 1, according to which, he has put appearance, after receiving notices from the learned Tribunal and filed his reply, it is evident that he was pursuing the lis diligently, as, when PWs were examined, he, through his counsel, has cross-examined the petitioner. As such, it cannot be said that he was not interested to pursue his matter. 27. Even otherwise, when the counsel has pleaded no instructions, the learned Tribunal is expected to issue 12 2026:HHC:35999 notices to respondent No. 1, intimating him, about the fact, that his counsel has now pleaded no instructions. The counsel, who has pleaded no instructions, has simply placed on record a carbon copy of the letter and, nothing is there in his statement that the said letter was ever posted to respondent No. 1-owner. 28. In the letter, Ex. RX, neither, there is any address, upon which, the same has been dispatched, nor is there any proof of its dispatch. This fact assumes significance, as, respondent No. 1-owner has taken categoric stand that he has not received any communication, from the lawyer. 29. Even otherwise, the Hon’ble Supreme Court, in Tahil Ram Issardas Sadarangani versus Ramchand Issardas Sadarangani, reported in AIR 1993 SC 1182, has mandated that when a counsel pleads no instructions, fresh notice of actual date hearing is required to be sent to the parties. Relevant para 4 of the said judgment, is reproduced, as under: “4. It is not disputed in the present case that on March 15, 1974 when Mr. Adhia, Advocate withdrew from the case, the petitioners were not present in court. There is nothing on the record to 13 2026:HHC:35999 show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adia withdrew from the case, the interests of justice required, that a fresh notice for actual date hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer.” 30. This decision has again been reiterated by the Hon’ble Supreme Court in Malkiat Singh and another versus Joginder Singh and others, reported in (1998) 2 Supreme Court Cases 206. Relevant para-7 of the judgment, is reproduced, as under: “13. The appellants in their application clearly pleaded that they were neither careless nor negligent and as soon as they learnt about the ex parte decree dated 8-2-1992 and the order dated 18-11-1991, they filed the application to set aside the order and ex parte decree. A perusal of the record also reveals that the appellants were neither careless nor negligent in defending the suit. They had engaged a counsel and were following the proceedings. In this fact situation the trial court, which had admittedly not issued any notice to the appellants after their counsel had reported no instructions, should have, in the interest of justice, allowed that application and proceeded in the case from the stage when the counsel reported no instructions. The appellants cannot, in the facts and circumstances of the case, be said to be at fault and they should not suffer. In taking this view, we are fortified by a judgment of this Court in Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani, 1993 Supp (3) SCC 256, wherein the Bench opined: (SCC p. 257, para 4) 14 2026:HHC:35999 “4. It is not disputed in the present case that on 15-3-1974 when Mr. Adhia, Advocate withdrew from the case, the petitioners were not present in court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adia withdrew from the case, the interests of justice required, that a fresh notice for actual date hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer.” 31. Being guided by the aforesaid decisions of the Hon’ble Supreme Court, this Court is of the view that the learned Tribunal appears to have taken a hyper-technical view of the matter. 32. It is trite law that every litigant out to be afforded an opportunity of getting the issue involved in the matter, decided on merit, without the same being scuttled on mere technicalities, unless, the technicalities are so predominant that they overshadow the merit of the case. Moreover, on the day, when, the ex parte order was passed, that too, on the basis of the no instructions, pleaded by the counsel, it was the third opportunity for RWs. 15 2026:HHC:35999 33. Considering the low legal literacy of the Indian masses, it is not expected from respondent No. 1-owner to put appearance before the learned Tribunal on each and every date of hearing, nor, it was required to do so, like in criminal case. 34. In the absence of any proof to demonstrate that the letter, allegedly posted by the counsel, appearing for respondent No. 1-owner, was ever received by him, has actually been dispatched or not, no negligence or inaction can be attributed to respondent No. 1-owner. The learned Tribunal has, therefore, wrongly ordered to proceed ex parte against respondent No. 1-owner. 35. In the given facts and circumstances of the present case, the learned Tribunal appears to have wrongly dismissed the application, under Order IX Rule 13 of the CPC, as well as, the application, under Section 5 of the Limitation Act, vide order, dated 5th August, 2019. 36. Viewed thus, the present appeal is allowed and order, dated 5th August, 2019, passed by the learned Tribunal is set aside. Resultantly, the delay is condoned and the application, under Order IX Rule 13 of the CPC is 16 2026:HHC:35999 allowed. Consequently, the award, dated 30th March, 2012, passed by the learned Tribunal is set aside and the matter is remanded to the learned Tribunal, with a request to proceed with the case afresh, after affording opportunity to respondent No. 1-owner to lead evidence. 37. Since, the lis is pending since 2008, it is expected from the learned Tribunal to decide the same, as expeditiously as possible, not later than 31st December, 2026. 38. It is clarified that only two opportunities be granted to respondent No. 1-owner to lead evidence, for which, respondent No. 1-owner shall take steps for summoning witnesses, if any, within a period of five days, from the date of his appearance before the learned Tribunal. The learned Tribunal is requested to record the evidence of respondent No. 1-owner after issuing notices to the witnesses, if any, mentioned by him. In case, the witnesses, so summoned, fail to put appearance, in that event, the learned Tribunal is at liberty to adopt coercive measures to secure their presence. 17 2026:HHC:35999 39. Parties, through their respective counsel, are directed to appear before the learned Tribunal on 3rd September, 2026, at 10.00 a.m. 40. Pending miscellaneous applications, if any, are also disposed of accordingly. 41. Send down the record forthwith. ( Virender Singh ) Judge August 25, 2026 ( rajni )