1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Smt.Sovani Bai & Ors. vs. Dy.Chief Medical & Health Officer, & Ors. (S.B.CIVIL WRIT PETITION NO.57/08) Dated:- 18th March, 2008. HON'BLE MR.JUSTICE SANGEET LODHA Mr.S.L.Jain, for the petitioner. 1. This writ petition is directed against order dated 14.11.07 passed by the Motor Accident Claims Tribunal ( in short “the Tribunal” hereinafter)in Civil Misc.Case No.10/07 ( M.A.C.T. Case no. 90/06), whereby an application preferred by the non claimants -respondents under Order 9 Rule 13 read with Section 151 C.P.C. for setting aside the ex parte award, has been allowed. 2. The relevant facts are that the claimants petitioners preferred a claim petition before the learned Tribunal claiming compensation on account of death of Shri Sohan Lal , husband of petitioner no.1 and father of petitioner nos.2 and 3, as a result of an accident occurred on 25.11.05. A reply to the claim petition was filed on behalf of non claimants contending that the accident had occurred on account 2 of rash and negligent driving by the motor cyclist deceased Shri Sohan Lal, therefore, the claimants are not entitled to claim any compensation from non claimants. On the basis of the pleading of the parties, the learned Tribunal framed the issues . The claimants concluded their evidence and the matter was posted for non claimants' evidence. In spite of two opportunities granted, the non claimants did not produce their evidence , therefore, on 24.4.07 while adjourning the matter to 15.5.07, the non claimants were granted last opportunity to produce the evidence on payment of cost of Rs.300/-. However, nobody appeared on behalf of the non-claimants on 15.5.07, therefore, the matter was proceeded ex parte against the non claimants and was posted for final arguments on 22.5.07. The arguments were heard and an award of compensation quantified at Rs. 15,85,000/- was passed in favour of the claimants and against the non claimants, on 23.5.07. 3. The non claimants respondents preferred an application for setting aside the ex parte award stating therein that as the Government Advocate was busy in some other case, therefore, he could not remain present when the matter was called by the learned Tribunal. It was submitted on behalf of the non claimants that the Government Advocate had not given any information to the non claimants regarding the last opportunity being granted for producing the evidence so also regarding passing of the ex 3 parte award. It was submitted on behalf of the non claimants that they came to know about the ex parte proceedings only on 10.8.07, when they received the copy of the award passed by the learned Tribunal. A reply to the application was filed on behalf of the respondents wherein it was contended that an application for certified copy of the award was submitted by the Government Advocate on 6.6.07 but, a copy thereof was dispatched by the Tribunal to the non claimants on 6.6.07, therefore, the stand taken by the respondents that they had no knowledge about the ex parte proceedings prior to 10.8.07 cannot be accepted. It was submitted on behalf of the claimants petitioners before the learned Tribunal that the non claimants have failed to produce the evidence even after last opportunity being granted on payment of cost. It was contended that it is the duty of the party to the proceedings to keep knowledge about the proceedings in the matter pending before the Court. Accordingly, the claimants urged that non-claimants have failed to establish that they were prevented by sufficient cause from appearing , when the matter was called by the learned Tribunal for hearing. 4. After due consideration, the learned Tribunal arrived at the finding that from the material on record , it is not clear as to whether the certified copy of the award was sent by the Government Advocate to the non claimants , therefore, it cannot 4 be said that the non claimants had knowledge of passing of the ex parte award prior to 10.8.07. The learned Tribunal observed that the claimants have not filed any reply to the application preferred by the non claimants for condonation of delay , therefore, the stand taken by the non claimants remains uncontroverted . The learned Tribunal observed that the provisions of Civil Procedure Code do not apply to the proceedings under the Motor Vehicles Act strictly, and on technical ground, it will not be justified to deprive a party from defending the matter. Thus, on the facts and in the circumstances of the case, the Tribunal reached to the conclusion that an opportunity should be extended to the non claimants to lead their evidence. Accordingly, while condoning the delay the application preferred by the non claimants for setting aside ex parte award has been allowed and the non claimants have been granted an opportunity to lead their evidence on payment of costs a sum of Rs.1500/-. 5. The learned counsel for the petitioner contended that the application preferred by the non claimants for setting aside the ex parte award was highly belated . The order proceeding ex parte was passed on 15.5.07 and the application for setting aside the ex parte proceedings was submitted on behalf of the non claimants on 10.8.07. According to the learned counsel there was no plausible explanation for the delay caused in filing 5 the application for setting aside ex parte award. The learned counsel submitted that the Tribunal was not justified in setting aside the award on the ground that the amount awarded is very high and non claimants are government servants. The learned counsel further submitted that absence of the counsel and his failure to inform the party about the proceedings cannot be a ground for setting aside the ex parte award. Accordingly, it is urged by the learned Counsel that the non claimants have not been able to establish any sufficient cause for setting aside the ex parte award and the learned Tribunal has seriously erred in setting aside the award on such flimsy grounds. 6. It is to be noticed that there was absolutely no material on record to show that the non claimants had the knowledge about the last opportunity being granted for producing the evidence or about the ex parte award being passed against them by the learned Tribunal on account of their absence, therefore, the failure of the non claimants to produce the evidence on the date fixed or the delay in filing the application for setting aside the ex parte award cannot be attributed to mala fide, gross negligence or laches on their part. It is true that a litigant should be vigilant enough and should keep himself informed about the proceedings pending before the Court but then, this fact cannot be lost sight of that in our legal system, the parties are generally represented by their counsels and they are not required to remain personally 6 present on each date of hearing, therefore, while relying upon the counsel , unaware about the order passed by the learned Tribunal if the non claimants could not produce the evidence on the date fixed then, for such lapse, it will not be appropriate to deprive them to defend the matter altogether and make to suffer the huge liability under the ex parte award passed by the learned Tribunal. As laid down by the Hon'ble Supreme Court in the matter of Rafiq & Anr. vs. Munshilal & Anr.[1981(2) SCC , 788)], a party should not be made to suffer for inaction or deliberate omission or misdemeanor of the advocate. It is settled law that the rules of procedure should not be applied strictly so as to deny the justice to the party, unless, the court is satisfied that the party had motive for his non appearance on the date fixed for hearing and he deliberately absented himself to achieve such motive. As a matter of fact, whether the cause shown for the absence is sufficient or not has to be construed liberally keeping in view the facts and circumstances of each case. 7. On the totality of the facts and circumstances of the present case, in my considered opinion, the sound judicial discretion exercised by the learned Tribunal subserves the cause of justice and cannot be faulted with. I do not find any infirmity or illegality in the order impugned, warranting interference by this Court in exercise of its extra ordinary jurisdiction under 7 Article 227 of the Constitution of India. 8. In the result, the writ petition fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J.