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Judgment
Mohan Shantanagoudar
By the impugned order, the court below has rejected the application filed by the petitioner for condonation of delay in filing the review petition. The record reveals that the petitioner is the owner of the vehicle bearing registration No. KA-20/A-6297, which met with an accident on 19.9.2006. The claim petition was filed in MVC No. 447/2009 by the 1st respondent who was injured in the accident. The claim petition came to be allowed by I Addl. Senior Civil Judge & MACT-V at Davanagere on 10.11.2010 awarding compensation of Rs. 1,92,200/- in favour of the claimant and against the petitioner herein, who is owner of the vehicle involved in the accident. At that point of time, though the vehicle was covered by the insurance policy, the petitioner failed to produce the insurance policy before the Tribunal. Hence, liability is fastened on the petitioner and not on the insurance company.
It seems, subsequently, the petitioner got copy of the insurance policy and thereafter filed a review petition before the claims tribunal for reviewing the award made in MVC No. 447/2009 after the delay of 10 months 9 days in filing the review petition. The said delay of 10 months 9 days is not condoned by the tribunal on the ground that the delay is not satisfactorily explained.
MVC No. 447/2009 was disposed of exparte and consequently the award was made exparte. Thus the tribunal observed that unless the decree gets set-aside in the proceedings arising under Order 9 Rule 13 of CPC, the petitioner cannot seek review of the award. It cannot be in dispute that the tribunal below justified in observing that the petitioner should have filed an application to set-aside the exparte decree instead of filing the review petition. The proper course available to the petitioner is to file an application for setting aside the exparte order by invoking the provisions under Order 9 Rule 13 of CPC. If the exparte award is set aside, the petitioner also would be benefited. However the delay has occurred in the meanwhile. Therefore, in my considered opinion, interest of justice would be met if the petitioner is directed to file an application under Order 9 Rule 13 of CPC seeking to set-aside the exparte decree with an application for condonation of delay. Since the petitioner has spent sufficient time either before the tribunal below in review proceedings or before this court by filing this writ petition, the tribunal shall take lenient view in condoning the delay. By the said process, no prejudice or injustice would be caused to any of the parties, in as much as matter will be decided on merits. Accordingly, the following order is made;
Writ petition is disposed of with a direction to the petitioner to file an application under Order 9 Rule 13 of CPC seeking setting-aside of the exparte decree. It is also open for the petitioner to seek condonation of delay in filing such petition. If such an application is filed for condonation of delay, leniency should be shown by condoning the delay by the tribunal below having regard to the fact that the vehicle was covered with the insurance policy during the relevant period.
Writ petition is disposed of accordingly.