Delhi High Court
Master Abhilash Krishnan & Ors. vs Pritam Singh & Ors. on 3 February, 2011
Author: Reva Khetrapal
UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1479/2010
MASTER ABHILASH KRISHNAN & ORS. ..... Petitioners
Through: Mr. Rajesh Kumar, Advocate
versus
PRITAM SINGH & ORS. ..... Respondents
Through: Mr. Kanwal Chaudhary,
Advocate for the respondent
No.3
% Date of Decision : February 03, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
J U D G M E N T (ORAL)
: 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
1. Admit.
2. With the consent of the parties the matter is taken up for final
hearing at the admission stage.
3. The brief facts relevant for the disposal of the present petition
are that a claim petition under Section 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.
4. Apparently thereafter, on 12.01.2010, the petitioners filed an
application under Order IX Rule 9 CPC along with an application
under Section 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 Vs. 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 ` 2,500/-.
File be consigned to record room.
-sd/-
Judge MACT (Outer)
Rohini"
5. 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
condonation 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.
6. In view of the aforesaid, the impugned orders dated 27 th
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.
REVA KHETRAPAL
(JUDGE)
February 03, 2011
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