Master Abhilash Krishnan and Others vs Pritam Singh and Others

Reva Khetrapal, J.

CM No. 21027/2010

This is an application praying for condonation of 27 days'' delay in re-filing the appeal. In view of the ground given in the application, the delay is condoned.

The application stands disposed of.

CM(M) 1479/2010

Admit.

With the consent of the parties the matter is taken up for final hearing at the admission stage.

The brief facts relevant for the disposal of the present petition are that a claim petition u/s 166 of the Motor Vehicles Act, 1988 for grant of compensation was filed by the legal representatives of Smt. Pushpa Gopalkrishnan, who died in a motor vehicular accident which took place on 17.10.2005. Summons were issued by the Tribunal to the Respondents No. 1 and 2, who did not appear and were accordingly proceeded ex parte by the Tribunal. The Respondent No. 3 - Insurance Company, however, appeared and contested the case. On 18th July, 2008, on account of default in appearance of the Petitioners'' counsel, the claim petition was dismissed in default. However, on 23rd July, 2009, in view of the fact that an application for restoration of the claim petition was filed through one Mr. B.P. Singh, Advocate on the ground that the date of hearing had been wrongly recorded by him in his diary, the petition was restored to its original number and ordered to be put up for further consideration on 27th August, 2009. On the said date, i.e., on 27th August, 2009, the proxy counsel for the Insurance Company pointed out that the vakalatnama of Mr. B.P. Singh, Advocate was not on the record and as such the application for restoration had been moved without authority. The trial court on the said date after recording the aforesaid fact and in the absence of Mr. B.P. Singh, Advocate proceeded to dismiss the application for restoration as misconceived and not maintainable. It deserves to be noted at this juncture at the risk of repetition that this application had been allowed by the Court on 23rd July, 2009 and there was no application pending on the record seeking recall of the order dated 23rd July, 2009. Nevertheless the Tribunal proceeded in a hasty manner to dismiss the application which had already been allowed, and that too without verifying from the Appellants/claim Petitioners as to whether they had authorized Mr. B.P. Singh, Advocate to seek restoration of the petition on their behalf.

Apparently thereafter, on 12.01.2010, the Petitioners filed an application under Order IX Rule 9 CPC along with an application u/s 5 of the Limitation Act for condonation of delay through one Shri Rajiv Narain, whose vakalatnama was already on the record of the Tribunal. This application was also summarily dismissed by the Tribunal by passing the following order:

Master Abhilash Krishnan v. Pritam Singh 17.04.2010

Present: Proxy Counsel Sh. Rajesh Kumar for the Petitioner

An application is on the record seeking restoration of original petition under order 9 Rule 9 CPC and alongwith the application u/s 5 of Limitation Act for condonation of delay. In fact the petition was dismissed on 18.7.2008 and restoration application was moved on 21.10.2008 by the counsel who had no authority from the Petitioners to move the said application. The application was accordingly dismissed on 27.8.2009. Now, the present application for restoration has been moved on 12.1.2000 i.e. after more than 4 months. Considering the application moved u/s 5 of Limitation Act, I find no sufficient cause so as to condone the delay to move the present application. The main counsel Sh. Rajiv Narain who has filed vakalatnama by the Petitioners has never bothered to appear before this tribunal. Application therefore is hopelessly barred by law of limitation hence dismissed with cost of Rs. 2,500/-.

File be consigned to record room.

-sd/-

Judge MACT (Outer)

Rohini

After hearing the counsel for the parties, this Court is of the view that the impugned order is not sustainable. In the first instance, the Tribunal, which had restored the claim petition to its original number, could not have on a subsequent date of hearing proceeded to dismiss the same even without notice to the Petitioners, solely on the ground that the vakalatnama of the counsel who had appeared was not on record. This course of action was wholly unjustified. Then again, on 17th April, 2010, when a fresh application for the restoration of the claim petition was filed by the Petitioners with an application for condo nation of delay, there was no justification for the Tribunal''s refusal to condone the delay and restore the petition. The Tribunal completely lost sight of the fact that the Petitioners were the legal representatives of the deceased Smt. Pushpa Gopalkrishnan, who died in an unfortunate road accident and the Petitioners No. 1 and 2 were minors at the time of death of their mother. Their claim petition for compensation under the Motor Vehicles Act, which is a beneficial piece of legislation, could not have been dismissed even assuming there was a default on the part of their counsel.

In view of the aforesaid, the impugned orders dated 27th August, 2009 and 17th April, 2010 are set aside. Resultantly, the petition is restored to its original number. Parties are directed to appear before the Tribunal on 7th March, 2011.

CM(M) 1479/2010 stands disposed of accordingly.