Gajubhai Jivanbhai ... vs Kanakben Kanubhai Tank Wd/O ...
2021 Latest Caselaw 18707 Guj

      C/SCA/19012/2018                                      ORDER DATED: 23/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 19012 of 2018
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       GAJUBHAI JIVANBHAI KALOTRA(RABARI) & 2 other(s)
                           Versus
  KANAKBEN KANUBHAI TANK WD/O KANUBHAI RUPSINH TANK & 7
                          other(s)
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Appearance:
MR YOGI K GADHIA(5913) for the Petitioner(s) No. 1,2,3
ABHISST K THAKER(7010) for the Respondent(s) No. 1
MR.SANAT B PANDYA(6976) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 7,8
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 2,3,4,5,6
================================================================

 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 23/12/2021
                                  ORAL ORDER

[1] The present writ petition has been filed, inter alia, seeking the following prayer:-

"This Hon'ble Court may be pleased to issue an appropriate writ, order and / or direction to quash and set aside Recovery Certificate No.4667 of 2018 and further may be pleased to quash and set aside the recovery notice/letter dated 22.11.2018 issued by Collector in pursuance to the Recovery Certificate."

[2] At the outset, learned advocate Mr.Gadhia for the petitioners has submitted that the application for condonation of delay in the restoration application of the petitioners is still pending. He has submitted that appropriate directions may be issued to the concerned authority for deciding the condonation of delay application. He has submitted that the petitioners are already having insurance policy of the vehicle for the period in question and the

C/SCA/19012/2018 ORDER DATED: 23/12/2021

petitioners cannot be held liable for paying the same and the respondent would be indemnified from such policy. Learned advocate Mr.Gadhia has further submitted that due to inaction of the concerned advocate the petitioners may not be made to suffer.

[3] In response to the aforesaid submission, learned advocate Mr.Thaker has submitted that despite issuance of notice, the petitioners did not care to remain present for all these years and hence, looking to the callous attitude of the petitioners, no order may be passed in the matter.

[4] Heard the learned advocates for the respective parties.

[5] The facts, which are not in dispute are that in the Workman's Compensation Application No.90 of 2008 was filed by the claimants, in which a notice was issued to the petitioners, which was also served. Since no appearance was filed despite the service of notice vide Exh-15, the right to reply was closed. Ultimately, by the judgment and order dated 20.07.2016 passed by the Commissioner of Workman's Compensation, the petitioners are directed to pay an amount of Rs.3,73,800/- with 9% interest along with 20%

C/SCA/19012/2018 ORDER DATED: 23/12/2021

penalty within a period of 30 days. Pursuant to the aforesaid judgment, the Recovery Certificate of amount of Rs.7,17,696/- was issued on 05.04.2018. After the petitioners received notice with a view to implementation the Recovery Certificate on 22.11.2018, they rushed to the Court by filing the captioned writ petition. Meanwhile, the petitioners filed a delay condonation application on 04.12.2018 seeking restoration of the original proceedings, which is still pending.

[6] It is not in dispute that the petitioners are having valid insurance policy of the vehicle in question and the respondents claim can be indemnified from such policy and the petitioners cannot be saddled by compensation. It appears that the petitioners have suffered due to negligent attitude of the advocate. This Court is of the opinion that the writ petition is required to be allowed by suitably imposing cost on the petitioners. The petitioners are directed to pay a cost of Rs.20,000/- to the respondents/legal heirs of the deceased. The petitioners are further directed to deposit an amount of Rs.3,73,800/- before the Workman's Compensation Commissioner, within a period of six weeks. After such amount is deposited, the Commissioner of Workman's Compensation is directed to decide the

C/SCA/19012/2018 ORDER DATED: 23/12/2021

application dated 04.12.2018 i.e Delay Condonation Application No.25 of 2018, after hearing concerned parties on merits. The same shall be decided within a period of three months after the amount of Rs.3,73,800/- is deposited by the petitioners. It is clarified that if the aforesaid amount is not deposited within a stipulated time, the Commissioner Workman Compensation shall not entertain the application filed for delay condonation. If the aforesaid amount is deposited by the petitioners within the stipulated time, the Recovery Certificate shall not be implemented till the delay application is decided.

[7] With these directions, the writ petition is disposed of.

(A. S. SUPEHIA, J) NABILA