•l'- <r ct' \ IN THE .HCN>BLE_mGH COURT OF CHHATTISGARH AT BILASPUR MISC. ^PPEAL N0.. 14-_ OF 2004 n ^PELL/NT / PLIC^T Dr. Vit-thal Kumar Agrawal, aged 61 years, son of late Krishna Kumar Agrawal, resident of-Gudiyari Raipur (C. G.) . VERSUS BESPONDENTS ^ON-APPLIC^TS ^f^ //:^:J ^^e>-' <?•• ^*' ><?•- ^?? /l. Mahadev Transport Service Bila^iur, through M/s. Hakimuddln Oiiner and Transportar Contractor through- Hasan Ahmad Khan son ; orf All Ahmad Khan, near Hotel . Anand, Bus Stand Road,Bi.iaspur Tah. 8, Distt. Bilaspur (C.G.). ^ '2^ Qhanshyam Rathore S/o. Gangaram / Rathore, Drive.r, through- Hasan Ahmad Khari, S/o. Ali Ahmad Khan near Hotel Anand, Bus Stand, Bilaspur (C.G.);., 3w Oriental Insurance Conpany Ltd. through- Branch Manager, Branch Office, Dayalband, Bxlaspur. 4. Bir Singh S/o. Budhram Gond, ./ Truck Driver, Indiara Nagar, Korba, Taho S. Distt.Korba (C.G.) §. Anil Kumar Sharma S/o. Mithlesh Sharma, Truck Owner, 15 Block Qr.No. F-10, S.E.C.L. Colliery Korba (C.G.)^ . 6.| The New India InsurancsConpany /^ V^-.Linu.ted, Bivisional Qfii.ee | Transport Nagar, Korba, Korba (C.G.),.. Distt. iia iia ^-L-^A£s3iib=K£H!yri fc^ IB!s K \w |m^ IE3 jffij» iQ !¥. ls I'n 1>0 ItO iK M \" iog tt- fto |(n 1-F» ^ ^B !8 iB Iffi j§ 18 !.s It- 1*0 i^ IB \\ *-, ) mGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra APPELLANT Misc.Appeal No. 14/2004 Dr. Vitthal Kumar Agrawal Versus RESPONDENTS : Mahadev Transport Service and odiers Appearance: Shri H.B. Agrawal, Senior Advocate with Smt. Iturani Mukherjee, counsel for the appellant. Shri A.K. Athaley, counsel for respondentNo-3. Shri Anand Gupta, counsel for respondent No.6. None for other respondents. APPEAL UNDER ORDER 43 RULE l(c)0f CODE OF CrvqLPROCEDURE ORALORDER (15.09^010) The claims tribunal has dismissed Ifae appellant's/claimants application forrestoration ofthe claim petition under Order 9 Rule 9 ofCPC which was dismissed for want ofprosecution on 10/01/2001. (2) Leamed counsel for the appellant has argued tiiat Ifae finding recorded by the claims tribunal while rejecting the prayer Sx restoration is not correct and fhat previous non-appearance cannot be a ground to refuse restoration ofthe suit without examining as to whether the default on the date when the matter was dismissed for want ofprosecution was sufGciently explained or not. (3) Leamed counsel for tiie respondents have supported the order aaii lias isu^ued that Ae unp^gaeit order does not call fer gny :(--.,;, | -,:vS'J' -•z- l^ (4) The appellant is resident of Raipur. Claim petition was preferred at Korba because the accident had teken place within jurisdiction of Korba Court. The appellant has stated in his application for restoration that he is interested in prosecuting the claim petition and he was not aware of the date of hearing on 10/01/2001 as the lawyer engaged by him could not sent infonnation in this regard. He has also stated that on the said date he was not well and that the claim petition be restored and decided on merits in the interest ofjustice. (5) The claims tribunal has observed in para 7 of the impugned order that the appellant has failed to appear on 7 dates and has also not produced evidence on those dates, Ifaerefore prayer for restoration cannot be allowed. (6) The claims tribunal in para 9 ofthe order has accepted the plea that the appellant was not well on 10/01/2001 and yet the prayer for restoration has been refased on the ground that in Ihe medical certificate it has not been mentioned that the appellant requires complete rest. (7) In the opinion of this court, while considering prayer for restoration of a claim petition the claims tribunal should have examined the matter in a more prodent andjustice oriented approach. Admittedly the appellant is a resident ofRaipur and the claim petition was pending at Korba. Under the amended provisions in the Motor Vehicles Act, a claim petition could be filed at Raipur also. However, 3<l.ac^.l,Ki^t.scs K..-l»x\--^,'ft^ lifi*-,— Bf.i;. »: -? / ; \ '• -^~\. since the appellant has chosen to file the petition at Korba he was prosecuting the same in Ifae claims tribunal at Korba. (8) In the totality ofthe eircumstances, it appears to this court that the claim petition deserves to be restored and decided on its own ments. (9) The impugned order is set aside. The claims tribunal shall proceed to decide the claim petition on merits. It is expected of the appellant to cooperate for early disposal ofthe claim petition. Sdl- prashant Kumar Mishra Judge ^ ^m^-u'MSaAAA:..:.