Samotibai vs Dhannalal and Others

A.K. Awasthy, J.

The appellant/applicant has filed the misc. appeal against the order dated 12.2.2001 in M.J.C. No. 68/2001 passed by learned First Member of Motor Accident Claims Tribunal, Mhow, District Indore, whereby the application under Order 9 Rule 9 of the CPC (for short "the Code") was rejected.

The applicant has filed the Claim Case No. 224/1993 on the averments that her husband has died on account of accident due to the rash and negligent driving of Mini Truck No. MP-09/D-8672 and as such the compensation be provided to her from the owner, driver and the Insurance Company jointly and severally. The claim case was dismissed in default of appearance on 2.11.1999. That the application on 26.8.2000 under Order 9 Rule 9 of the Code was filed by the applicant-claimant for setting aside the dismissal of the claim on the averments that the appellant is an illiterate rustic lady of the dhil community and on account of the failure of her Counsel to appear on 2.11.1999 her case was dismissed in default of appearance. The learned Tribunal without recording the evidence in the case has dismissed the application for the restoration of the claim petition holding that the application was highly belated and it was beyond the period of limitation.

This fact is not in dispute that the applicant is a rustic illiterate widow of Bhil community. The claimant has prayed for the compensation on account of the vehicular accident in which it is alleged that her husband has died due to the rash and negligent driving of the mini truck. The claimant has filed the affidavit before the learned Tribunal which was supported by affidavit of her Counsel from which it appears that applicant has got the knowledge about the dismissal of her case on account of the non-appearance of her Counsel on 25.8.2000. The counter affidavit was not filed to rebut the averments of the applicant-claimant.

The application for the restoration of the suit or petition should be allowed if the "sufficient cause" is shown and in each case it is a question of fact that what construed the sufficient cause. The word "sufficient cause" should receive liberal consideration in order to do substantial justice. It is observed in the case of Union of India (UOI) Vs. Ram Charan and Others, , that the Court in considering whether a party has established sufficient cause, need not be over strict. In this case reason of the non-appearance does not smack mala fide and does not seem to be false or frivolous. Consequently it will be necessary in the interests of justice to provide to the applicant-claimant the opportunity to prove her case for the compensation.

The appeal is hereby allowed and the order dated 2.11.1999 of the dismissal of the Claim Case No. 224/1993 is hereby set aside and case be restored to its original number. The claimant is directed to appear before the learned Tribunal on 23.2.2005 for further hearing. No order as to costs.