Delhi High Court
Ramesh Kumar vs Mohd. Rahees & Ors on 1 June, 2012
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 256/2012
% Date of Decision: 01.06.2012
RAMESH KUMAR ..... Appellant
Through Mr Tarun Aswani, Adv.
-versus-
MOHD. RAHEES & ORS ..... Respondent
Through Mr S.K. Ray with Mr Amitara Poddar,
Adv. for R-4.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J. (ORAL)
*
1. Present is an appeal under Order XLIII Rule 1(d) of CPC for setting
aside the impugned order dated 06.03.2012 by which the learned trial court
has dismissed the application of the appellant under Order 9 Rule 13 read
with Section 151 CPC.
2. A petition under Section 163A of Motor Vehicles Act 1988 was filed
before the Motor Accident Claims Tribunal, Delhi (hereinafter referred to as
the Tribunal) by parents of the deceased for grant of compensation for the
death of late Master Shadab caused in the road vehicular accident. In the
said petition, the appellant herein i.e. respondent no.2 is the owner of the
offending vehicle TATA 407 bearing no. DL-1LE-4866. The
appellant/respondentno.2 initially contested the said petition by filing written
statement and thereafter stopped appearing in the matter and was proceeded
ex parte on 01.08.2007. The claim petition was decided vide award dated
16.03.2010 and compensation of Rs.3,75,000/- with interest @ 7.5 % per
annum was awarded to the claimants i.e. respondent nos.1 and 2 including
the interim award amount.
3. The appellant/respondent no.2 had moved an application under Order
9 Rule 13 read with Section 151 CPC on 03.02.2011 before the Tribunal
alleging therein that the appellant was informed by his counsel that the
insurance company/respondent no.4 herein has informed the court that
conciliation was not possible in the matter. It is alleged that thereafter the
counsel for appellant had informed him about the proceedings on 12.12.2006
and his counsel had informed him that appellant need not come to the court.
However, in order to keep track in the matter, the appellant again contacted
his counsel who told him that he need not worry and insurance company will
do the needful. However, after few days, the appellant received the notice of
execution for the recovery of amount awarded in favour of the
claimants/respondent nos.1 and 2. After the receipt of said notice, the
appellant came to know that he was proceeded ex parte in the matter. It is
stated that due to bonafide reasons, the appellant was not appearing before
the learned trial court, as such, the impugned order be set aside and appellant
be allowed to contest the petition on merits.
4. The learned ADJ has dismissed the application vide impugned order
dated 06.03.2012 by holding that no sufficient cause has been stated in the
application. Perusal of the material on record shows that the
appellant/respondent no.2 had filed the written statement before the trial
court on 22.07.2006. On 01.08.2007, there was no appearance on his behalf
and on that day he was proceeded ex parte. Thereafter, the matter was listed
on 27.09.2007, 19.12.2007 and 31.03.2008 and on 01.07.2008 respectively.
The learned trial court has noted that on these dates proxy counsel for the
appellant had appeared. Despite opportunity given, no evidence was led on
behalf of the appellant/respondent no.2. The application for setting aside the
impugned order is filed on 03.02.2011. Nothing is stated in the application
as to on what date the appellant came to know that he was proceeded ex
parte. The name of the counsel who had allegedly informed him that he
need not worry in the matter and the insurance company would do the
needful is also not stated. There is nothing on record to show that as to what
action has been taken by the appellant against the counsel who has allegedly
stated him so. The appellant was proceeded ex parte on 01.08.2007. The
award granting compensation has been passed on 16.03.2010. There is gap
of two years and seven months. The present are proceedings for the grant of
compensation arising out of vehicular accident. The appellant is the owner
of the offending vehicle. He has remained in slumber for the aforesaid
period without bothering as to what was happening in the matter. His
conduct shows that he has not been vigilant in pursuing the matter.
Considering the nature of the case, the appellant ought to have been vigilant
in the matter. It has also not been stated as to when he had received the
notice of the execution petition as is alleged by him. The appellant had
remained negligent in pursuing the case. Ld. ADJ has rightly held that the
application does not disclose any good or sufficient cause for setting aside ex
parte proceedings. No illegality or infirmity is seen in the impugned order.
The appeal stands dismissed.
CM 10613/2012 (stay)
In view of above order, no further orders are required on this
application. The same stands disposed of accordingly.
VEENA BIRBAL, J
JUNE 1, 2012
srb
