RAMESH KUMAR Vs. MOHD RAHEES

JUDGEMENT

(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. 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/respondent no.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.

(2.) 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. 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.