OM PRAKASH MALHOTRA Vs. NIRLA

JUDGEMENT

(1.) Whether a Motor Accident Claims Tribunal Constituted u / S. 165 of the Motor Vehicles Act, 1988, (far short the Act), can impose cost while recalling an order purporting to have been passed under Order 9 Rule 7 of the Code of Civil Procedure, 1908, (for short the Code), is the short but significant question that falls for determination in this Civil Revision filed by opposite parties (the defendant) in a motor accident claim preferred by opposite parties 1 to 6 against the applicant, the owner of the vehicle and opposite party No. 7.

(2.) The facts need not detain much as the same are admitted. A claim petition was filed by opposite parties 1 to 6 against the applicant, the owner of the vehicle and opposite party No. 7 the National Insurance Co. It was alleged that one Jagat Narain, the husband of opposite party No. 1 Smt. Nirmala Kumari and father of opposite party No. 2 died in an accident caused by the truck belonging to applicant. A claim for a sum of Rs. 317600.00- was made by opposite parties 1 to 6 against the applicant and opposite party No. 7. The notices were issued to the applicant to appear and file written statement by 23-3-90 and 30-3-90 was fixed for framing issues. In spite of notice to the applicant, he did not appear on 23-3-90 nor on 30-3-90, rather he had come earlier to Etawah on 15-3-90 and engaged one Sri G. D. Misra, Advocate, but he did not inform the progress nor he appeared on the date fixed. Later on when the applicant enquired into and came to Etawah on 1-4-91 it transpired that Sri G.D. Misra died and the applicant was not informed. The order to proceed ex parte against the revisionist was passed on 21-8-90. On 2-4-91 the applicant engaged another counsel Sri Ashok Kumar Tewari and moved an application purporting to be under Order 9 Rule 8 of the Code to recall the earlier order dated 21-8-90. On 3-491 the application of the applicant was allowed and he was directed to file written statement provided he deposits Rs. 25,000 / - in the court within a week. Against that order the present civil revision has been filed.

(3.) Sri R. K. Porwal, learned counsel for the applicant urged that the provisions of Order 9 Rules 7 and 8 of the Code would apply, the applicant personally was not at fault, rather his advocate did not appear nor informed the applicant and the applicant could not know about the date fixed or the progress in the case. Consequently the application for restoration ought to have been allowed without any cost or deposit of any amount and the Tribunal has exceeded its jurisdiction in allowing the application for restoration directing the applicant to file written statement on the condition that the applicant shall deposit Rs. 25,000.00-. In any case nominal cost could have been imposed.