IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 234 of 2011 Decided on: 22.09.2011 Oriental Insurance Company Ltd. …Petitioner. Versus Vinod Kumar Gupta & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Ashwani K. Sharma, Advocate. For the respondents: Mr. G.R. Palsra, Advocate, for respondent No. 1. Respondent No. 2 present in person. Respondents No. 3 to 7 proceeded against ex-parte. Deepak Gupta, J. (Oral) This petition by the Insurance Company is directed against the order dated 09.03.2011 whereby the learned Motor Accident Claims Tribunal-II, Mandi, rejected the application filed by the Insurance Company for setting aside the ex-parte award only on the ground that the same was barred by limitation. 2. The undisputed facts are that in the claim petition filed by respondents No. 3 to 7, the Insurance Company had engaged one Shri H.S. Rathore, Advocate, who had been appearing in the 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- matter. However, on 3rd July, 2006, Shri Rathaur did not appear and the Insurance Company was proceeded against ex-parte. 3. The award was passed on 09.10.2006 and according to the Insurance Company, it came to know about the award on 16.10.2006. Thereafter, it applied for copy of the order, which was supplied on 24.10.2006. Then, the application for setting aside the ex-parte award was filed on 09.11.2006. 4. I am constrained to observe that while only deciding the issue of limitation, the learned MACT has gone into the merits of the case and give findings on the merits of the application dismissing the same. He has actually not, in clear cut terms, decided the question whether the application was within time or not. 5. As mentioned above, the award was announced on 09.10.2006 and the application for setting aside the ex-parte award was filed on 09.11.2006. If, at all, there was any delay, it was only of one day. However, if the time spent in obtaining the certified copy of the award is excluded or the limitation is calculated from the date of knowledge, then the application was well within time. This shows total non-application of mind while deciding this issue. 6. I feel that instead of remanding the case, the matter should be heard on merits itself. The application was filed by the Insurance Company in the year 2006 itself and it took more than five years for the learned Tribunal to decide a simple application for setting aside an ex-parte award. In my view, the learned Tribunal has taken a hypertechnical view of the matter. Here is a -: 3 :- case where it stands proved on record that the learned counsel, who was engaged by the Insurance Company in the matter, left practice in January, 2006. There is nothing on record to show that he informed the Insurance Company that he had left practice. He did not appear and the Insurance Company was proceeded against ex-parte on 3rd July, 2006. and award was announced within three months thereafter. I fail to understand what is the negligence which can be attributable to the Insurance Company. The corporate entities cannot be present in Court on every date of hearing. 7. The law is extremely well settled that a party should not suffer for the mistake of its counsel. In this case, the counsel had not only made a mistake, but was highly negligent. Once a counsel leaves practice, it is his duty to inform his clients that he is leaving practice and they may make alternative arrangements for their representation in Court. How can a party know that the counsel, who they have engaged, has left the practice or not. An Insurance Company, a Bank, HRTC or any other corporate entity, which is involved in a large number of cases is not expected, after engaging the counsel, to follow the proceedings on day to day basis. 8. The Apex Court in Rafiq and another versus Munshilal and another, AIR 1981 Supreme Court 1400, held as follows: “3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief -: 4 :- him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. ..................................... What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative.” 9. One could have understood if the Insurance Company for years together had not tried to contact its counsel, but here is a case where admittedly in 2004 itself they had written a letter to their counsel. Merely because it did not receive any response did not mean that it was bound to follow up the case itself. In my opinion, the learned Tribunal totally misdirected itself in rejecting the application. 10. As pointed out above, in para 5 of the order of the learned Tribunal, the only issued framed is as follows: “1. Whether there is sufficient reason to condone the delay in filing the application? OPA” There is hardly any discussion by the learned Tribunal about the delay in filing the application and it has decided the case on merits. -: 5 :- 11. Secondly, I find another grave error in the order of the learned Tribunal. He stated that he found no reason for condonation of delay by holding that it cannot be said that there is sufficient reason for condonation of delay for setting aside the ex- parte 'decree'. There was no ex-parte decree before the Tribunal. A Motor Accident Claims Tribunal only passed awards and not decrees. I think that the Tribunal should have the knowledge that it passes awards and not decrees. 12. Therefore, the order of the learned Tribunal is set aside. The ex-parte award passed against the Insurance Company is set aside and the proceedings shall be re-started from the date when the Insurance Company was proceeded against ex-parte. 13. The parties who are represented are directed to appear before the learned Tribunal on 23rd November, 2011. Notices shall be issued to the claimants. Keeping in view the fact that almost five years have elapsed and also in view of the fact that the claimants have led evidence, the Insurance Company is burdened with ` 5,000/- as costs. The costs be paid to the claimants. (Deepak Gupta) Judge September 22, 2011 (rajni)