Kuldeep vs Balu and Others

L.N. Mittal, J.—Claimant Kuldeep has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 4.5.2009, Annexure P/4 passed by learned Motor Accident Claims Tribunal, thereby dismissing petitioner''s application for restoration of his claim petition which was dismissed in default.

Petitioner filed claim petition u/s 166 of the Motor Vehicles Act. The said claim petition was dismissed in default on 25.3.2008 as none appeared for the claimant. The petitioner moved application Annexure P/2 on 29.4.2008 for restoration of the claim petition alleging that the claimant could not contact his counsel and therefore, counsel had no information of the date fixed and the counsel could not appear. The application was opposed by respondent No. 3 by filing reply Annexure P/3. The Claims Tribunal finding no sufficient reason for restoration of the claim petition, dismissed the application for restoration.

As prayed for, service of notice on respondents No. 1 and 2 is dispensed with as they had not been yet served in the claim petition nor they were present before the Tribunal when the impugned order was passed.

I have heard learned Counsel for the petitioner and learned Counsel for respondent No. 3 and perused the case file.

If strictly construed, the petitioner did not plead any sufficient ground for non-appearance of the claimant on 25.3.2008, the date fixed in the claim petition. However, restoration application was moved just 5 weeks after the dismissal of the claim petition in default. Courts are liberal in such matters because a party should not be non-suited without adjudication on merits unless there is exceptional circumstance like malafide intention of oblique motive or gross un-due delay. In the instant case, no exceptional circumstance is made out for denying restoration of the claim petition. On the other hand, perusal of order dated 25.3.2008, Annexure P/1 whereby the claim petition was dismissed in default, reveals that the claimant had even deposited Rs. 3000/- as expenses for publication of notice in newspaper for service of respondents No. 1 and 2 but the publication was not effected as the newspaper demanded the amount in advance. It would, however, depict that the claimant-petitioner was serious in prosecuting his claim petition. In these circumstances, in my opinion, ends of justice would be met if the claim petition is restored on payment of costs.

For the reasons aforesaid, the instant revision petition is allowed. Impugned order dated 4.5.2009, Annexure P/4 passed by learned Claims Tribunal is set aside. Restoration application Annexure P/2 moved by the claimant-petitioner is allowed and the claim petition is restored to its original number and stage before the Claims Tribunal subject to payment of Rs. 2500/- as costs precedent payable to respondent No. 3.

Parties are directed to appear before the Claims Tribunal on 16.8.2010