Full Judgment
Rajesh Balia, J.
1. The original Civil Misc. Appeal has been attached with this Special Appeal. For the present, Office objection No. 2 is waived.
2. Admit. Issue notice.
3. Mr. M.R. Singhvi who was appearing in the Misc. Appeal for the respondent No. 3 the only served respondent, present in Court was requested to accept notice on behalf of Insurance Company. After having perused the order dated 28.09.2006 and consequential order giving affect thereto, we are of the opinion that the order of dismissing the Miscellaneous Appeal for respondents 1 & 2 having not been served, deserves to be set aside. The unserved respondents are the residents of outside State of Rajasthan and are respectively driver and owner of the vehicle by which the accident was caused. In these circumstances it is too much to expect the heirs of the victim of the accident to find out the exact location of the driver and owner of the vehicle and to effect upon them a personal service as was directed by the learned Single Judge vide order dated 28.09.2004 by way of peremptory order to result in dismissal of appeal on the ground of return of unserved notices. Primarily the regular service is to be effected through the official agency of process server. On failure to do so, like service may even be effected by way of substituted service without resorting to such process and thereby no fault on the part of appellant to visit him with this penalty of dismissal of his case does not serve the cause of justice. It rather results in failure of substantial justice. It was at least required that if once respondents are not served through ordinary process the alternative mode of service may be pursued. Moreover, as we shall presently see in the facts and circumstances of the present case for just decision of appeal presence of respondents No. 1 and 2 was not even essential.
4. In these circumstances the dismissal of the appeal for that reason cannot be sustained. Accordingly, the appeal is allowed. The orders dated 08.02.2005 and 28.09.2004 are set aside.
5. Since the award has been passed against the driver of the vehicle, owner of the vehicle and the Insurance Company by making them liable jointly or severally and there is no appeal against the award by either of the judgment debtors in the circumstances it is not essential that notices be served on the driver and owner of the Vehicle when the Insurance Company is already represented before the learned Single Judge. The findings about the liability or limit of the liability of the Insurance Company being not under challenge and the findings about the negligence of the driver being also not under challenge the service on respondents Nos. 1 and 2 for the purpose of deciding the appeal in which only issue is about quantum to be awarded to the claimants, the effective relief can be granted even in the absence of respondents No. 1 and 2, and the appeal may be proceeded.
6. Accordingly, the appeal is allowed and the orders dated 08.02.2005 and 28.09.2004 are set-aside. S.B. Civil Misc. Appeal be proceeded on merits before the appropriate bench.