UNITED INDIA INSURANCE CO LTD Vs. SAROJA

JUDGEMENT

(1.) THE Civil Revision Petition is against setting aside the order of dismissal made in I.A.No.370 of 2009. THE application is filed to condone the delay of 929 days in preferring the application to set aside ex parte decree dated 14.11.2006 passed against the petitioner / second respondent. In the affidavit filed in support of the petitioner, the petitioner would content that earlier the MCOP itself was dismissed for default. THE papers were mixed with old records and it could not be traced and subsequently when the petition was restored, they did not have the knowledge as the records were misplaced with other records. THEy came to know about the decree only much later. THErefore, there has crept in a delay of 929 days in preferring the appeal. THE application is filed under Section 5 of the Limitation Act. THE respondent has specifically pleaded in the affidavit that as early as on 31.01.2005, the MCOP itself was dismissed for default. THErefore the respondent claimed to have filed in IA No.385 of 2006 and 386 of 2006 for condoning the delay and restoring the petition which was dismissed for default. But that applications were allowed without notice to the petitioner. THErefore they were not aware of the restoration and subsequently the petition itself was decreed exparte on 14.11.2006. Since they did not have knowledge about the restoration there has crept in delay to set aside the exparte decree. But the respondent would contend that in the application in I.A.No.385 of2006 and 386 of 2006 for restoration and condonation of delay, notice was issued to the petitioner and it was served but since he did not appear later on, the MCOP was decreed ex parte on 14.11.2006 and they would also further contend that even thereafter on 01.02.08, they filed an E.P. Application and in the E.P also notice was served and after nine hearings only, the present application has been filed. THErefore the condone delay application should not be allowed and it was rightly rejected by the Court below.

(2.) HEARD both the parties.

(3.) THE learned counsel would point out that even the tribunal has categorically stated in the present application itself that in respect of application in IA No.385 and 386 of 2006, notice itself was dispensed with. THErefore before restoration, no notice was admittedly sent to the Insurance company and it was restored without any notice to the insurance company. THErefore when it was restored without notice to the respondent company, it is quite natural that the insurance company could not have contested the matter that they were under the impression that the petition was dismissed for default long back. Subsequently they had come to knowledge of the very ex parte decree much later when the EP was filed, notice was sent and only through notice they have come across the restoration and condonation and therefore they have filed the present application with the condonation of 992 days. Apart from this, the learned counsel also brought to the notice of this Court that in respect of earlier application filed by the very same party under the Workmen's Compensation Act in W.C.No.58 of 1998 before the Dy. Commissioner of Labour, Salem and that was ultimately dismissed on the ground that he is not a worker as contemplated under the Act as early as on 28.03.1999 and thereafter only the present MCOP itself has been filed much later in the year 2003 but this information was not available at that point when the matter was taken up. THErefore a new information has come to the knowledge of the Insurance company which is also been brought to the notice of this court. THErefore under the change in the circumstances in respect of the claim made by the claimant, then necessarily this application has got to be allowed so that it will give an opportunity for them to put on trial for both the parties to whether still the respondent/claimant is entitled to compensation under the Motor Vehicles Act.