1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.394 OF 2004 Maria Christabella Pereira, Resident of House No.148, Palmar Vaddo, Pomburpa, Bardez-Goa. …. Petitioner V/s 1. Sheik Noor Mohamed, r/o. House No.163, Dunang, Cuncolim, Salcete, Goa. Driver of Bus bearing No.GA-02/T-4342 (TATA) 2. Maumeena Travels, Behind Varca Church, Salcete, Goa, Represented by Mrs. Maumeena Martins. (Owner of bus) 3. Cymbionic Marketing Pvt. Ltd., 605, “B”, 6th floor, Dempo Traders, Patto Plaza, Panaji, Goa 403001, Represented by its Marketing Manager, Mr. Francisco Fernandes. 4. United India Insurance Co. Ltd., Divisional Office, Salgaoncar Chambers, 2nd floor, P.O. Box 106, Margao, Goa 403601. …. Respondents Shri Valmiki Menezes, Advocate for the Petitioner. Shri A.R.S. Netrawalkar, Advocate for Respondent No.4. CORAM : F.M. REIS, J. DATE : 26th SEPTEMBER, 2011 2 JUDGMENT : Heard Shri V. Menezes, learned Counsel appearing for the petitioner and Shri A.R.S. Netrawalkar, learned Counsel appearing for respondent no.4. 2. The above petition challenges the order dated 23/03/2004 and the order dated 23/07/2004, passed by the Presiding Officer of the Motor Accidents Claims Tribunal, North Goa at Mapusa in Claim Petition No.31/2002. The Claim Petition was filed by the petitioner seeking compensation on account of the injuries sustained in an accident by the petitioner in a bus accident. 3. After the written statement was filed, issues were framed in the said Claim Petition bearing no.31/2002. The petitioner examined herself on 7/10/2003. Prior to that the petitioner filed affidavit in evidence on 1/08/2003 and the matter was fixed on 5/09/2003 when the advocate for the petitioner was absent and the proceedings were adjourned and fixed on 7/10/2003, conciliation could not be arrived at. The evidence was recorded on 7/10/2003 and the matter was posted for further evidence on 31/10/2003. Thereafter, on 31/10/2003, the petitioner sought an 3 adjournment which was granted by the learned Tribunal and matter was posted on 13/01/2004 when evidence of AW2 was recorded. The matter was thereafter posted on 20/02/2004 when the claimant sought for time and the proceedings were fixed on 23/03/2004. The petitioner was present, but however, the advocate was absent and the learned Tribunal closed the evidence of the petitioner on the said date. Thereafter, the petitioner filed an application for review/recall of the said order by filing Review Application No.1/04 which came to be rejected by the learned Tribunal by order dated 23/07/2004. 4. Being aggrieved by the said orders passed by the learned Tribunal present application is filed. 5. Shri V. Menezes, learned Counsel appearing for the petitioner has pointed out that the petitioner has sought adjournments on valid grounds and as such the learned Judge was not justified to close the evidence of the petitioner. The learned Counsel has taken me through the roznama and pointed out that the petitioner had availed of only two adjournments as the previous adjournments sought by the petitioner were in view of the fact that 4 the conciliation attempt had failed. The learned Counsel further submitted that on the relevant date the advocate of the petitioner was busy before the election commission and, as such, on account of his absence the petitioner was not in a position to lead evidence on the said date. The learned Counsel further pointed out that she has stated in an affidavit the reason why her advocate was unable to be present on the relevant date i.e. on 23/03/2004. The learned Counsel further submitted that the law is well settled by the Apex Court that in cases in which the adjournment is sought on the ground of the absence of the advocate, unless any malafides are shown there is no reason not to accept such application as a party should not suffer on account of the lapse of the advocate. The learned Counsel further submitted that grave and irreparable prejudice shall occasion to the petitioner in case the petition is not allowed as the petitioner shall be precluded from adducing evidence. Learned Counsel submitted that, as such, the impugned order deserves to be quashed and set aside. 6. On the other hand Shri A.R.S. Netrawalkar, learned Counsel appearing for respondent no.4 supported the impugned order. The learned Counsel pointed out that the Court has no 5 jurisdiction to grant any adjournments on three occasions. The learned Counsel further submitted that there are no justifiable reasons adduced by the petitioner in order that she can be entitled for an adjournment on the relevant date. The learned Counsel, as such, submitted that the petition deserves to be rejected. 7. Having heard the learned Counsel and on perusal of the record, I find that after the filing of the affidavit by the claimants the matter was fixed for conciliation. The matter was adjourned on 5/09/2003 apparently on the ground that the conciliation had failed. As such, it cannot be accepted that the matter came to be adjourned on 5/09/2003 at the instance of the petitioner. It is also to be noted that the petitioner was present on the said date and the Tribunal could have proceeded with the matter as the affidavit was already on record on the previous date of hearing. Thereafter, the records reveal that there were two adjournments sought by the petitioner on the ground that the advocate was not available. Though the Tribunal on 20/02/2004 had granted last and final opportunity nevertheless on account of unavoidable reasons the petitioner was unable to proceed in the matter on 23/03/2004. Though there might have been some 6 negligence on the part of the advocate of the petitioner to proceed with the matter before the Tribunal, I find that merely because of negligence on the part of the advocate by itself cannot disentitle the petitioner from obtaining an adjournment on the relevant date. It is to be noted that the claim petition is filed for compensation on the ground that the petitioner has suffered injuries on account of a motor vehicle accident. Considering that respondents have not disputed the allegations made in the affidavit filed by the petitioner in support of her petition there is no justification not to accept the explanation given by the petitioner to the effect that she was unable to proceed with the case on 23/03/2004, as her advocate was not available and she had not exhausted the number of the adjournments she is entitled and the claim petition was filed before the 2002 amendment to the Civil Procedure Code. 8. In the peculiar facts of the present case, the learned Judge was not justified to close the evidence on 23/03/2004. The subsequent order passed by the learned Judge dismissing the review application is only on the ground that review was not maintainable. As such, I find that the impugned order passed by the Tribunal deserves to be quashed and set aside. To avoid any 7 further delay in the matter petitioner was called upon to file affidavit to disclose the name of the witness. Accordingly, affidavit was filed stating inter alia that the petitioner wants to examine six more witnesses in the said proceedings. 9. Considering the facts and circumstances of the case, I pass the following : O R D E R (i) The impugned order dated 23.3.2004 deserves to be quashed and set aside and the petitioner is allowed to lead further evidence in the claim petition. (ii) The Tribunal is directed to proceed with the hearing in the Claim Petition after permitting the petitioner to examine six witnesses in accordance with law. (iii) Petition stands disposed of accordingly subject to payment of costs of Rs.1,000/- by the petitioner to the State Legal Service Authority. (iv) Rule is made absolute in the above terms. 8 (v) Parties are directed to appear before the learned Tribunal on 14/11/2011 at 10.00 a.m. F.M. REIS, J. NH/-