ORIENTAL INSURANCE CO LTD Vs. SANJAY KUMAR

JUDGEMENT

(1.) Oriental Insurance Co. Ltd., Charkhi Dadri, who is respondent No. 3 in the claim petition filed by Sanjay Kumar (respondent No. 1 herein) and which is pending before Motor Accidents Claims Tribunal, Narnaul (hereinafter referred to as 'the Tribunal'), has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 10.8.2005, passed by Tribunal, whereby defence of the petitioner has been struck off under Order 8, rule 1, Civil Procedure Code, on account of non-filing of written statement within a period of ninety days from the date of service of summons.

(2.) Counsel for petitioner contends that petitioner insurance company was served with notice for appearance for 18.4.2005. On that day, one Mr. R.K. Chaudhary, Advocate, put in appearance on behalf of the petitioner company and thereafter, the case was adjourned to 1.6.2005, written statement of the petitioner was not ready, therefore, on request, case was adjourned to 18.7.2005 for filing the same. But on 18.7.2005 again adjournment was sought for filing the written statement and the case was accordingly adjourned to 10.8.2005. On that day, written statement on behalf of the petitioner company was not filed and its defence was struck off on account of non-filing of the written statement within the period of ninety days from the date of service of the summons. Thereafter, after framing the issues, case was adjourned for evidence of the claimant.

(3.) Counsel for petitioner submits that earlier, a claim petition was filed by Sanjay Kumar, respondent No. 1, in the year 2002, but the same was got dismissed as withdrawn with permission to file a fresh claim petition subject to limitation vide order dated 4.3.2005. In the said claim petition, one Mr. Jitender Kumar, Advocate, was appearing for petitioner company. When the second petition was filed, Mr. R.K. Chaudhary, Advocate, put appearance on behalf of the petitioner company and when he intimated to the petitioner company for his appearance in the case, the letters were issued by the company to the said advocate that Mr. Jitender Kumar, Advocate who was earlier dealing with the case, will represent the company. Therefore, because of the correspondence between the advocates and the company, written statement could not be filed within the stipulated period of ninety days. Counsel for the petitioner submits that in case, the impugned order of striking the defence is not set aside and the company is not permitted to file its written statement, a serious prejudice will be caused to it, as it is case of the petitioner that the claim petition filed by the respondent is not maintainable under section 163-A of the Motor Vehicles Act. Besides this, the petitioner has to make its submissions on various other issues on merits of the case. In these circumstances, counsel for the petitioner submits that in various decisions, the Hon'ble Apex Court has held that the provision of Order 8, rule1, Civil Procedure Code, is directory and the court can grant permission to file written statement even beyond the period of ninety days, if a case in this regard is made out. Counsel submits that in the facts and circumstances of the case, the petitioner company be granted one opportunity to file written statement subject to payment of costs.