1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7451 OF 2009 Bhismaharya s/o Digambarrao Suryawanshi, age: 38 years, Occ: Agril., R/o Lakhangaon, Tq. Ausa, District Latur. Petitioner Versus 1 Baburao s/o Narayan Shivalkar, age: 48 years, Occ: Business, R/o Bhada, Tq. Ausa, District Latur. 2 Satish s/o Sukumar Andhare, age: 26 years, Occ: Driver, R/o Lakhangaon, Tq. Ausa, District Latur. Respondents Mr.B.N.Patil, advocate for the petitioner. Mr.M.L.Dharashive, advocate for Respondent No.1. Respondent No.2 served. CORAM: R. K. DESHPANDE, J. DATE : 21 st July, 2010. ORAL JUDGMENT: 1 This writ petition challenges the order dated 11 th September, 2009, passed by the Principal District Judge & Ex-Officio Member of Motor Accident Claims Tribunal, Latur, dismissing Misc. Application (MACP) No.13 of 2006, filed by the present petitioner. The application, which is rejected, was for condonation of delay caused in filing application for setting aside ex parte order passed by the Motor Accident Claims Tribunal. 2 2 In the earlier round of litigation i.e. in Writ Petition No.4126 of 2008, this Court had remanded the matter back, by judgment and order dated 08.05.2009, with a direction to provide an opportunity to the petitioner to establish truth into the causes of delay shown by him. Since, according to the tribunal, the petitioner has failed to establish the same, the application has been rejected. 3 The notice in this matter was issued on 17.11.2009 and ad interim relief in terms of prayer clause (D) staying the execution proceedings i.e. R.D.No.251/2005 has been granted. In response to the notice, learned Counsel Shri Dharashive appears for Respondent No.1, who is original claimant. The parties agree that the matter can be disposed of finally at the stage of admission. Hence, Rule, made returnable forthwith and heard finally. 4 The Tribunal has held that there is no document from the concerned advocate filed on record. Name of the lawyer of petitioner was also not disclosed nor any affidavit of the lawyer was filed on record as to what incorrect advise was given. Further, no medical certificate was filed in order to prove that the petitioner and his family members were suffering from “chicken gunya”. It has further been observed that in spite of opportunity being given, the petitioner has although filed a medical certificate on record, no case is made out for condonation of delay. 5 The award is passed against the petitioner, who is owner of the vehicle, which is for an amount of Rs.36,000/- inclusive of Rs.25,000/- towards interim compensation along with interest at the rate of 9% p.a. from the date 3 of filing of the claim petition till its realisation. It is incomprehensible that the petitioner having known that decree is passed against him would not take any steps. There cannot be such intention to avoid challenging it. There may be delay but the same cannot be intentional. It cannot be said that the petitioner was deliberately not taking steps for filing application for setting aside ex parte award. In view of this, in my opinion, sufficient cause was made out for condonation of delay. The Tribunal ought to have condoned the delay by saddling costs. 6 The award is for an amount of Rs.36,000/- along with interest at the rate of 9% p.a. from the date of filing of the claim petition till its realisation. The Tribunal shall calculate the amount, which is payable in terms of the award by the petitioner to the claimants and same shall be made known to the petitioner. The petitioner shall thereupon deposit the entire amount within a period of one month from such communication before the Tribunal. It is only upon deposit of such amount, the Tribunal shall proceed to decide the matter afresh by giving, the petitioner and respondents, an opportunity of being heard including to lead evidence in the matter. Pending decision of the claim petition, the amount, if deposited by the petitioner, shall be invested in Fixed Deposit in any Nationaised Bank and shall not be disbursed to the Respondents. The disbursement of the amount shall depend upon outcome of the proceedings pending before the Tribunal. 7 In the result, order dated 11.09.2009, passed by learned Principal District Judge and Ex-Officio Member of Motor Accident Claims Tribunal, Latur in Misc. Application (MACP) No.13/006 is hereby quashed and set aside. Said Misc. Application (MACP) No.13/2006 is allowed. The Tribunal shall decide M.A.C.P. No.441/1999 within a period of six months from the date 4 of receipt of writ of this Court. The parties shall appear before the Tribunal on 2 nd August, 2010, on which date, the Tribunal shall communicate the amount to be deposited by the petitioner. If the petitioner fails to deposit the amount, the Tribunal shall treat this petition as dismissed. 8 Rule is made absolute in aforesaid terms. However, petitioner shall pay costs of Rs.2000/- (Rs.Two thousand) to the Respondents in respect of this petition. (R. K. DESHPANDE) JUDGE ******* adb/wp745109