Panna Chand Jain, J.
1. This appeal is directed against the judgment and award passed by the Accident Claims Tribunal, Udaipur dated 6th August, 1982, in claims case No. 108/81, by which a claim petition of the appellants was dismissed.
2. Aggrieved with the judgment and award dated 6th August, 1982, the claimants appellants have filed the appeal. The main contention of Mr. N.P. Gupta, learned counsel for the Appellant, is that the case before the Claims Tribunal on 6th August, 1982; proceeded exparte as the petitioners as well as their counsel could not put in appearance on 6th August, 1982, which was the first date of hearing for claimants evidence. Mr. Gupta submits that there was reasonable cause for the non-appearance of the appellant Thakur Das and their counsel Shri Dinesh Somani on 6th August, 1982. He submits that appellant Thakur Das was suffering from colic pain and dysentry and as such he could not go to Udaipur for evidence on 6th August, 1982. He also submits that the claimants counsel Shri Dinesh Somani was also suffering from viral fever since 5-8-1982, he also could not appear. On the basis of these circumstances, Shri Gupta submits that an opportunity should be given to claimants to prove their case before the Claims Tribunal by condoning the absence of claimant and the counsel.
3. Shri D.S. Shishodia, learned counsel for the respondents and Mr. P.K. Bhansali. learned counsel for the Insurer submitted that the appellants are not entitled to any indulgence as the aforesaid grounds on which indulgence is sought, are not supported by any affidavit. It is true that in a case which proceeds ex-parte, either in the absence of the petitioner or non-applicant and an application for setting aside the ex-parte order is made or grievance is made before the appellate court, grounds on which cause for non-appearance is pleaded one required to be supported by an affidavit. In this case, no affidavit has been filed either of the appellant, Thakur Das, or the counsel Shri Dinesh Somani. In the normal way in such circumstances no consideration should be given by the appellate court. But taking into consideration that the petition has been filed by the legal representative of the deceased and believing the statement of Mr. Gupta at the Bar that in fact the counsel Shri Dinesh Somani was suffering from viral fever and as such he could not appear on the date of hearing, I feel inclined to accept his statement.
4. I am of the opinion that an opportunity should be given to the claimants to prove their case. An ex parte decree awarded on 6-8-1982 made by the Claims Tribunal dismissing the claims petition, is, therefore, set aside and the appeal is allowed subject to the payment of costs of Rs. 250/- to the counsel for the respondent No. 1 and 2 and Rs. 250/- to the counsel for the Insurance Company.
5. In the result, appeal is accordingly allowed setting aside the award dated 6-8-1982. The parties are directed to appear before the Accidents Claims Tribunal, Bhilwara, on 17th October, 1985. The claimants appellants are further directed to produce their evidence on the said date. The record of the case be immediately sent to the Claims Tribunal.