RAJASTHAN HIGH COURT

                   Bheru Lal

                   Vs.

                   Raghubeer

                   C.W.P. No. 1510 of 2003
                       (S.K. Keshote, J.)

                   17.10.2003

                   ORDER

S. K. Keshote, J.

1. Heard learned counsel for the petitioners, perused the writ petition and its
enclosures.

2. By this writ petition under Article 227 of the Constitution of India, the claimant
petitioners are praying for quashing and setting aside of the order dated 8th of May,
1999 (Annexure-1) and order dated 13th of July, 2001 of the learned Judge, Motor
Accident Claims Tribunal, Kekri (for short, 'the Tribunal'). Further prayer is made for
restoration of the claim petition to its original number with a direction to the learned
Tribunal to decide the same within the stipulated period.

3. The facts, in brief, giving rise to filing of this petition are that the claimant
petitioners filed a claim petition before the learned Tribunal claiming compensation to
the tune of Rs. 7,17,500/- for the loss suffered by them due to the death of their minor
son aged 9 years, a student of Second class, in an accident took place on 27th of
August, 1994. This claim petition was registered as claim case No. 24/1994. They
engaged Sri Jag Mohan Singh, Sr. Advocate. He assured the claimants petitioners that
he would attend each and every date in the matter and when their presence would be
required, he would inform them accordingly.

4. It is stated that after presentation of the claim petition, unfortunately the counsel for
the claimants petitioners suffered by cancer disease. He remained hospitalized for a
long time and ultimately died. When the claimant petitioners came to know of the
death of their counsel, the claimant petitioner No. 1 rushed to the Tribunal personally
and made a search of the position of the claim petition.

5. On 18th of December, 1996 for the first time he came to know that the claim
petition has been dismissed for non prosecution on 8th of May, 1995. He contacted Sri
Ramesh Dhabhai, Advocate and moved an application on 27-1-1997 for restoration of
the claim duly supported by an affidavit. He also filed an application under Section 5
of the Limitation Act for condo nation of delay. The notices of this application were
issued to the respondents. None of the respondents filed reply to the application.
Under the impugned order the learned trial Court dismissed that application and thus
this writ petition.

6. From the order of the learned Tribunal, I find that orally this application was
strongly opposed by the Insurance Company. In such matters and more so after the
amendment made by the Parliament in Section 166 of the Motor Vehicles Act, 1988
(for short 'the Act, 1988'), opposition of the application for restoration by the Insurance
Company is difficult to appreciate.

7. This Court has granted time to the counsel for the Insurance Company to take
instructions in the matter whether the Insurance Company is really opposing it. The
learned counsel has taken instructions and stated that the Insurance Company is
opposing it. This Court called the Regional Manager of the Company. He stated that
on receipt of the notices of the case the Company engaged the Advocates and
instructed them to contest the same on merits. The Regional Manager of the Company
stands to the stand that the Company contests the matter.

8. I find from the record of the case that in the motor accident the only son of the
claimants petitioner, aged 9 years, has died. The averments made by the claimants
petitioners in their application for restoration of the claim petition which was
dismissed in default, stand uncontroverted as reply thereto has not been filed by the
Company. That is also the position with regard to the application filed by the claimant
petitioners under Section 5 of the Limitation Act. Thus, there is no dispute on the
facts.

9. The petitioners engaged Sri Jag Mohan Singh, Advocate in the matter. The
Advocate fell ill and remained confined to bed for a long period and ultimately died on
18th December, 1996. The petitioners came to know about the dismissal of the claim
petition for non-prosecution on 8th of May, 1995. Sri Jag Mohan Singh, Advocate died
of cancer. The petitioners have filed affidavit of Ramesh Dhabhai, Advocate. He made
a statement on oath that Jag Mohan Singh. Advocate was his junior and he was
looking after this claim petition for petitioners. On 8th of May, 1995 he remained
absent in the Court due to his illness. He remained ill for a long period and he did not
give any information to the clients.

10. The Insurance Company has not denied these facts, how far it is justified or what
locus stand it has to oppose this application orally. That apart, the Insurance Company
is totally ignorant of the fact that in the claim petition now the limitation is not any
barrier. The fresh claim petition can be filed. Opposition of such an application orally
by the Insurance Company in the facts of this case appears to be a most cruel and
inhuman act. The poor claimants petitioners have lost their only son, aged of 9 years
in the accident and still the Insurance Company is opposing the application. The
Insurance Company has also failed to appreciate that the provisions of the C.P.C. are
not strictly applicable to the proceedings before the learned Tribunal.

11. Motor Vehicles Act, 1988 is a benevolent piece of legislation, which is enacted
keeping in view socio-economic problems and difficulties.

12. The learned Tribunal has also acted highly arbitrarily, cruelly and inhumanly in
the matter. It has failed to draw the distinction in the cases of the nature relating to the
property or other rights and the cases where poor parents filed a claim petition for
compensation for the loss of life of their only son aged 9 years in a motor vehicle
accident.

13. It is unfortunate that our judicial officers do not read the statutory provisions as
well as case laws. Otherwise this order would not have been passed by him in the
matter. The provisions for restoration of the matter dismissed in default are to be
liberally construed. The reference here may have to the decision of the Hon'ble
Supreme Court in the case of G. P. Srivastava v. R. K. Rayzada, 1 This was the case in
connection with the Order 9, Rule 13 of the Civil Procedure Code. The Court held that
expression "........was prevented by sufficient cause from appearing" must be liberally
construed where defense is reasonable, defendant approaches the Court for setting
aside of the ex parte decree within statutory period, non-appearance is not mala fide or
intentional. The Courts have wide discretion and the expression must be construed as
elastic expression and no hard and fast guide line can be prescribed. The Court has
further held that the claim of sickness made for setting aside of the ex parte decree
cannot be rejected merely because the medical certificate was obtained from a private
paractitioner and not from a Government Doctor. Even where the defendant found to
be negligent he may be compensated by the costs. A narrow and technical approach of
the Court leads unnecessary prolongation of the matter. The justice can only be
achieved in case defendant is allowed to bring his case within reasonable time.

14. The learned trial Court has gone altogether on technical approach which is against
the basic principles to do justice in between the parties and have a justice oriented
approach more so in the motor vehicle claim cases. He started to find fault with the
poor claimants that date of death was not given, the date on which the Advocate fell ill
was not mentioned, the Advocate's ailment which he suffered, was not given, for what
period he suffered illness was not given. The substance is that the Advocate was ill,
which is not in dispute, on the date on which the matter was dismissed in default. The
poor claimants had engaged the Advocate and they are not unreasonable in their
approach to feel saved and free in his hands.

15. The averments made in the affidavit are not controverted and thus they are to be
accepted. Otherwise also on each and every date it was not expected from the
claimants to remain present in the Tribunal. Their role comes only when the pleadings
are to be prepared and produced and for recording of their statements. I am satisfied
from the facts of this case that stage was not reached. In case the order of the learned
trial Court is allowed to stand it will result failure of justice to these poor claimants
who have lost their only son aged 9 years in the motor vehicle accident. Law is meant
for doing justice in between the parties. Procedural law is handmade of justice and
reasonable claim of the claimants is thrown out of the Court without adjudication, it
will be travesty of justice.

16. As a result of the aforesaid discussion, this writ petition succeeds and the same is
allowed. The orders dated 8th of May, 1999 and 13th of September, 2001 of the
learned Judge, Motor Accident Claims Tribunal Kekri are quashed and set aside and
the Motor Accident Claim Case No. 24/1994 is restored to its original number.

17. The learned trial Court is directed to pass forthwith the order under Section 140 of
the Act, 1988, if it is already not passed, and further decide the claim petition within a
period of six months from the date of receipt of the copy of this order.

18. Where the learned Tribunal decides to award the interim compensation to the
claimants the whole amount thereof is to be kept in the FDR in any Nationalized Bank
and the monthly interest accrued thereon is to be paid to the claimants.

19. It is a fit case where the cost is to be awarded to the claimants petitioners against
the Insurance Company as it was a just and reasonable case where the Insurance
Company should not have opposed the application and rather it should have submitted
that it has no objection in restoration thereof. Not only this even before this Court this
writ petition has been opposed. The poor claimants, who have lost their son aged 9
years, have to bear heavy litigation expenses.

20. In these circumstances, the Insurance Company is directed to pay Rupees 5000/-
as cost of the writ petition to the claimants petitioners. This amount of costs is to be
paid personally to the petitioner No. 1 by Account Payee Cheque/DD/Pay Order.

Petition allowed.

Cases Referred.

1. 2000 (3) SCC 54: (AIR 2000 SC 1221)