AFZAL AHMAD Vs. AMZADI BEGUM

JUDGEMENT

(1.) The present writ petition has been filed for quashing the orders dated 18.11.2003 and 11.1.2005 in M.A.C. No.16/02 and order dated 9.3.2006 in Miscellaneous Case no.79 of 2005.

(2.) The facts arising out of the present writ petition are that the opposite party No.1 filed a Claim Petition before the District Judge, Rampur on 7.1.2002 against the petitioner and opposite parties Nos. 4 to 7 stating therein that on 24.8.2001 at about 5.00 p.m. her husband died in an accident due to negligent driving of the driver of the Truck No.UGP 4508. Petitioner and the opposite party Nos.4 to 6 are the owners of the truck and same was insured by opposite party No.7. After receipt of the notice the petitioner as well as the opposite parties Nos. 4 to 6 filed their written statement denying the allegation made in the claim petition. Further it has been stated in their objection that in case the accident is proved there will be no liability of the truck owner as the truck was insured by the respondent No.7. It has further been stated that petitioner and opposite parties appointed the petitioner as pairokar for the purposes of doing pairvi. The date was fixed on 18.11.2003 but due to the illness of the petitioner, as he was having high fever and cough and later-on doctor declared him tuberculosis and suggested him to take rest. The Court had passed an order to proceed ex-parte and 4.1.2005 was fixed for arguments but the petitioner could not be present due to his illness. In the absence of arguments of the petitioner on 4.1.2005, the court had fixed a date 11.1.2005 for judgement and on that date, claim petition was allowed and awarded Rs.3,24,000/- as compensation which was to be recovered from the owner of the vehicle. When the petitioner recovered from illness, on the basis of telephonic talk to his counsel on 10.3.2005, he came to know regarding the ex-parte order. After obtaining the certified copy of the order, moved a recall application with an application for condonation of delay on 7.4.2005 for recalling the orders dated 18.11.2005 and 11.1.2005.

(3.) An objection was filed by the Insurance Company against the recall application and the claimants have also filed their objection. The Court below has rejected the said application without considering the fact that the petitioner was ill and he was not in a position to attend the court and the liability is upon the Insurance Company, therefore, no liability can be fixed upon petitioner. The Claims Tribunal has also not considered the medical certificates submitted by the petitioner.