Delhi High Court
Roopa Sharma vs Manoj Kumar Gupta & Ors on 18 April, 2013
Author: Suresh Kait
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 18th April, 2013
+ MAC.APP. 891/2011 & CM. NO. 18539/2011
ROOPA SHARMA ..... Appellant
Through: Mr. Amit Kr. Pandey, Ad.
versus
MANOJ KUMAR GUPTA & ORS ..... Respondents
Through: Mr. Suresh Sharma, Adv. for R1.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Instant appeal has been preferred against the impugned judgment
dated 21.03.2011 whereby, ld. Tribunal has dismissed the claim petition
filed by the appellant.
2. Ld. Tribunal has passed the aforementioned order on recording that
appellant was partially cross-examined, thereafter, she did not tender herself
for further cross-examination in spite of the directions of the court. Even on
request of the mother of the appellant, the matter was adjourned for
completing the evidence, however, in spite of that she did not appear.
3. The evidence of the appellant was closed on 11.08.2009. The
appellant neither move any application nor made herself available for cross-
examination before the ld. Tribunal.
4. Finally, the ld. Tribunal recorded its findings vide impugned order
dated 21.03.2011 by dismissing the claim petition that the appellant did not
subject herself for cross-examination in spite of the order of the court.
Therefore, her testimony cannot be read as evidence. Ld. Tribunal has also
recorded that respondent no. 1 / driver of the offending vehicle was acquitted
of the offences punishable under Sections 279/338 IPC as the certified copy
of the judgment was produced by the respondents.
5. The ld. Tribunal further recorded that the appellant suffered injuries,
however, failed to prove that the said injuries were caused due to the
accident in question caused by rash and negligent driving of the offending
vehicle by respondent no. 1. The appellant also failed to prove the loss of
earning due to the disability sustained in the accident.
6. The appellant has filed present appeal along with an application for
condonation of delay being CM. No.18540/2011, wherein it is stated that the
appellant tendered her evidence by way of affidavit before the ld. Tribunal
and her statement was recorded on 24.02.2005. Thereafter the matter was
adjourned for cross-examination by the ld. Counsels for respondent no. 1
and 2.
7. Thereafter, the appellant appeared before the court on 26.07.2005 and
30.11.2005, but the counsels for respondent nos. 1 & 2 did not cross-
examine the appellant even on the aforesaid dates
8. It is further stated that the appellant again appeared before the ld.
Tribunal on 28.11.2008 and 27.01.2009. She was partly cross-examined by
the counsels for the respondents and her cross-examination was deferred for
the next date of hearing. Her evidence was closed by the ld. Tribunal vide
order dated 11.08.2009 as she could not appear on the said date.
9. It is further stated that the counsel for the appellant neither advised the
appellant for filing of an application for recalling of the order dated
11.08.2009 nor took any proper steps to save the interest of the appellant.
However, the appellant and her mother appeared before the court as and
when their counsel advised them.
10. Counsel for the appellant submits that due to the non-appearance of
her counsel, the claim petition was dismissed on 11.10.2010 in default,
which was restored vide order dated 26.02.2011 on moving an application
for restoration. But the counsel for the appellant did not choose to take
proper steps to save the interest of the appellant before ld. Tribunal even
after restoration of the petition.
11. Ld. Counsel appearing on behalf of the appellant has argued that the
claim petition filed by the appellant before the ld. Tribunal was under the
welfare legislation and if the proper steps have not been taken by the counsel
for the appellant, then she should not make to suffer from her legitimate
rights, which are available under the Motor Vehicles Act.
12. He further submitted that as per the disability certificate, she has
suffered 50% permanent hearing disability, which was caused due to the
accident in question. The medical bills have been filed by the appellant
before the ld. Tribunal. However, due to the reasons mentioned above, she
could not prove the same, therefore, ld. Tribunal dismissed the claim petition
and not awarded even a single penny as compensation in favour of the
appellant.
13. Ld. Counsel appearing on behalf of the respondents (owner and driver
of the offending vehicle in question) submitted that the ld. Tribunal granted
number of opportunities to the appellant to complete her evidence, however,
she did not make herself available. Having no option, ld. Tribunal had
closed the evidence of the appellant and dismissed the claim petition filed by
her.
14. Ld. Counsel has further submitted that there is delay in filing the
present appeal, which has not been properly explained. He has drawn the
attention of this court towards the affidavit filed in support of the application
seeking condonation of delay, which cannot be taken into considerations for
the reasons that the same has not been filed in this case, but in some other
case as the title shown in the said affidavit as Ms. Surinder Kaur v. Oriental
Insurance Co. Ltd., whereas the title of the present case is Roopa Sharma v.
Manoj Kumar Gupta and Ors. Therefore, the present appeal is not
maintainable and may be dismissed on the ground of delay alone.
15. After hearing ld. Counsel for the parties, it is emerged undisputedly
that the appellant changed 4-5 counsels during the pendency of the claim
petition before the ld. Tribunal. This may be because of her non-satisfaction
regarding the progress of the case or due to some other reasons, which this
court can only presume. Since nothing has come on record, therefore, I am
not going to make any opinion for what reasons she did not make herself
available to complete her evidence before the ld. Tribunal. There may be
some communication gap between the counsels and the appellant. Even the
present appeal has been filed along with an application for condonation of
delay, which is not legally proper.
16. Having recorded the above observations, still I am of the opinion that
the present claim petition has been filed by the appellant under the welfare
legislation as she has suffered 50% permanent hearing disability due to the
accident in question. In support of her case, she filed medical bills along
with the claim petition, she was available on various dates, however,
evidence was deferred till 2009. It is evident from the order sheets of the
trial court that four-five advocates have been changed in between. May be
due to communication gap between the appellant and her counsels, she could
not make herself available as and when called by the court.
17. In view of the above, on the issue of delay, I have no hesitation to say
that the present era of computer is of cut and paste, therefore, in the affidavit
filed along with the application for condonation of delay, the title has been
wrongly pasted, whereas the affidavit has been sworn by the appellant i.e.
Roopa Sharma. The present application cannot be rejected on a technical
ground for the reasons that the present case falls under welfare legislation.
18. In view of the above discussion, while condoning the delay, impugned
order dated 21.03.2011 is set aside.
19. Let her complete the evidence as per the convenience of the
ld. Tribunal.
20. Parties are directed to appear before the ld. Tribunal on 03.05.2013 for
direction.
21. Appeal is allowed on the above terms with no orders as to costs.
CM. NO. 18540/2011
In view of the above, instant application has become infructuous and
disposed of as such.
TCR be sent back along with a copy of this order.
SURESH KAIT, J
APRIL 18, 2013
Jg
