1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION FIRST FIRST FIRST APPEAL APPEAL APPEAL (ST) No.1292 OF 2007 (ST) No.1292 OF 2007 (ST) No.1292 OF 2007 1) 1) 1) Smt Smt Smt Shobha Raghunath Patil & ors..Appellants Shobha Raghunath Patil & ors..Appellants Shobha Raghunath Patil & ors..Appellants vs vs vs 1) 1) 1) Gulab G.Wayal & anr .. Gulab G.Wayal & anr .. Gulab G.Wayal & anr .. Respondent Respondent Respondents Mr.S.G.Thorat Mr.S.G.Thorat Mr.S.G.Thorat for for for Appellants Appellants Appellants Mr.S.M.Dange Mr.S.M.Dange Mr.S.M.Dange for for for Respondent no.2 Respondent no.2 Respondent no.2 CORAM CORAM CORAM : : : A.S.OKA, J A.S.OKA, J A.S.OKA, J DATED DATED DATED : : : 20th December, 2007 20th December, 2007 20th December, 2007 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT 1.1.1. Heard advocates appearing for the appellants Heard advocates appearing for the appellants Heard advocates appearing for the appellants and and and advocate advocate advocate appearing for the 2nd respondent. appearing for the 2nd respondent. appearing for the 2nd respondent. 2.2.2. Admit. Admit. Admit. 3.3.3. Considering the limited controversy involved Considering the limited controversy involved Considering the limited controversy involved, the the the appeal is taken up for final disposal at the appeal is taken up for final disposal at the appeal is taken up for final disposal at the admission admission admission stage. The respondents have not stage. The respondents have not stage. The respondents have not preferred preferred preferred any appeal against the impugned judgment any appeal against the impugned judgment any appeal against the impugned judgment and and and award award award which is passed on 14th July, 2006 and in which is passed on 14th July, 2006 and in which is passed on 14th July, 2006 and in fact fact fact the entire amount due and payable as per the the entire amount due and payable as per the the entire amount due and payable as per the impugned impugned impugned award has been deposited by the 2nd award has been deposited by the 2nd award has been deposited by the 2nd respondent respondent respondent with the concerned Tribunal. 4. The with the concerned Tribunal. 4. The with the concerned Tribunal. 4. The appellants appellants appellants are the claimants in a Claim Petition are the claimants in a Claim Petition are the claimants in a Claim Petition under under under section 166 of the Motor Vehicles Act, 1988. section 166 of the Motor Vehicles Act, 1988. section 166 of the Motor Vehicles Act, 1988. The The The Claim Petition was filed on account of the Claim Petition was filed on account of the Claim Petition was filed on account of the death death death of the husband of the Ist appellant in a of the husband of the Ist appellant in a of the husband of the Ist appellant in a motor motor motor accident. The 2nd appellant is the minor accident. The 2nd appellant is the minor accident. The 2nd appellant is the minor daughter daughter daughter of of of the deceased. By the impugned Judgment the deceased. By the impugned Judgment the deceased. By the impugned Judgment and and and award dated 14th July, 2006 the Claim Petition award dated 14th July, 2006 the Claim Petition award dated 14th July, 2006 the Claim Petition was was was partly allowed by granting compensation of partly allowed by granting compensation of partly allowed by granting compensation of Rs.8,50,000/- Rs.8,50,000/- Rs.8,50,000/- together together together with interest thereon at the with interest thereon at the with interest thereon at the 2 rate rate rate of 9% p.a. from the date of filing of the of 9% p.a. from the date of filing of the of 9% p.a. from the date of filing of the Claim Claim Claim Petition Petition Petition till the deposit of the amount. The till the deposit of the amount. The till the deposit of the amount. The tribunal tribunal tribunal however, denied interest for the period however, denied interest for the period however, denied interest for the period from from from 31st 31st 31st January 2004 to 5th December, 2005 on the January 2004 to 5th December, 2005 on the January 2004 to 5th December, 2005 on the ground ground ground that on 31st January, 2004 the Claim that on 31st January, 2004 the Claim that on 31st January, 2004 the Claim Petition Petition Petition was dismissed for default and was restored was dismissed for default and was restored was dismissed for default and was restored on on on 5th December, 2005. 5th December, 2005. 5th December, 2005. 5.5.5. The only limited challenge in this appeal is to The only limited challenge in this appeal is to The only limited challenge in this appeal is to that that that part of the impugned award by which interest part of the impugned award by which interest part of the impugned award by which interest has has has been denied for the aforesaid period. The been denied for the aforesaid period. The been denied for the aforesaid period. The submission submission submission of the learned advocate for the of the learned advocate for the of the learned advocate for the appellants appellants appellants is that the petition was dismissed on is that the petition was dismissed on is that the petition was dismissed on the the the ground that the appellants were not present ground that the appellants were not present ground that the appellants were not present though though though their advocate was present. The hearing of their advocate was present. The hearing of their advocate was present. The hearing of application application application for the restoration was inordinately for the restoration was inordinately for the restoration was inordinately delayed delayed delayed as the 2nd respondent insurance company as the 2nd respondent insurance company as the 2nd respondent insurance company went went went on on on applying for adjournment from time to time. applying for adjournment from time to time. applying for adjournment from time to time. He He He submitted there was no ground to deny interest submitted there was no ground to deny interest submitted there was no ground to deny interest as as as there was no negligence on the part of the there was no negligence on the part of the there was no negligence on the part of the appellants. appellants. appellants. Submissions of the learned advocate Submissions of the learned advocate Submissions of the learned advocate for for for the 2nd respondent is that the 2nd respondent the 2nd respondent is that the 2nd respondent the 2nd respondent is that the 2nd respondent cannot cannot cannot be blamed if the Claim Petition was be blamed if the Claim Petition was be blamed if the Claim Petition was dismissed dismissed dismissed as as as appellants admittedly remained absent. appellants admittedly remained absent. appellants admittedly remained absent. He He He submitted that considering the fact that Claim submitted that considering the fact that Claim submitted that considering the fact that Claim Petition Petition Petition was dismissed on the ground of default of was dismissed on the ground of default of was dismissed on the ground of default of the the the appellants, appellants, appellants, the tribunal was fully justified in the tribunal was fully justified in the tribunal was fully justified in denying denying denying interest for the period starting from the interest for the period starting from the interest for the period starting from the date date date of of of dismissal and ending with the date of order dismissal and ending with the date of order dismissal and ending with the date of order of of of restoration. He submitted that no case is made restoration. He submitted that no case is made restoration. He submitted that no case is made out out out for interference. for interference. for interference. 3 6.6.6. I have given careful consideration to the I have given careful consideration to the I have given careful consideration to the submissions. submissions. submissions. Claim Petition filed by the Claim Petition filed by the Claim Petition filed by the appellants appellants appellants was dismissed in default on 31st was dismissed in default on 31st was dismissed in default on 31st January, January, January, 2004. On 27th January, 2004 when Claim 2004. On 27th January, 2004 when Claim 2004. On 27th January, 2004 when Claim Petition Petition Petition was was was listed for hearing, an application was listed for hearing, an application was listed for hearing, an application was made made made on on on behalf of the appellants for an adjournment behalf of the appellants for an adjournment behalf of the appellants for an adjournment on on on the ground that the Ist appellant was sick and the ground that the Ist appellant was sick and the ground that the Ist appellant was sick and was was was unable unable unable to attend the Court. The learned Member to attend the Court. The learned Member to attend the Court. The learned Member of of of the tribunal granted adjournment only till 31st the tribunal granted adjournment only till 31st the tribunal granted adjournment only till 31st January, January, January, 2004. On 31st January, 2004 an 2004. On 31st January, 2004 an 2004. On 31st January, 2004 an application application application for adjournment was made by the for adjournment was made by the for adjournment was made by the advocate advocate advocate for the appellants on the same ground. for the appellants on the same ground. for the appellants on the same ground. The The The said application was rejected and the Claim said application was rejected and the Claim said application was rejected and the Claim Petition Petition Petition was dismissed in default by the learned was dismissed in default by the learned was dismissed in default by the learned Member Member Member on the ground that the Claim Petition was an on the ground that the Claim Petition was an on the ground that the Claim Petition was an old old old petition of the year 1999. petition of the year 1999. petition of the year 1999. 7.7.7. An application for restoration being Misc. An application for restoration being Misc. An application for restoration being Misc. Petition Petition Petition No.8 No.8 No.8 of 2004 was filed bythe appellants on of 2004 was filed bythe appellants on of 2004 was filed bythe appellants on 23rd 23rd 23rd February 2004. Notice was issued on the said February 2004. Notice was issued on the said February 2004. Notice was issued on the said application application application which which which was made returnable on 29th July, was made returnable on 29th July, was made returnable on 29th July, 2004. 2004. 2004. A perusal of the roznama of the application A perusal of the roznama of the application A perusal of the roznama of the application for for for restoration shows that on 29th July 2004, 30th restoration shows that on 29th July 2004, 30th restoration shows that on 29th July 2004, 30th August, August, August, 2004, 9th September 2004, and 4th October 2004, 9th September 2004, and 4th October 2004, 9th September 2004, and 4th October 2004 2004 2004 an adjournment was sought on behalf the 2nd an adjournment was sought on behalf the 2nd an adjournment was sought on behalf the 2nd respondent respondent respondent for grant of time to file a reply. On for grant of time to file a reply. On for grant of time to file a reply. On 4th 4th 4th October, 2004 the application for restoration October, 2004 the application for restoration October, 2004 the application for restoration was was was adjourned to 20th November 2004 for filing adjourned to 20th November 2004 for filing adjourned to 20th November 2004 for filing reply reply reply by the 2nd respondent On 20th November 2004, by the 2nd respondent On 20th November 2004, by the 2nd respondent On 20th November 2004, the the the 2nd respondent again applied for an 2nd respondent again applied for an 2nd respondent again applied for an adjournment. adjournment. adjournment. On 13th December 2004, the 2nd On 13th December 2004, the 2nd On 13th December 2004, the 2nd respondent respondent respondent again applied for adjournment. On the again applied for adjournment. On the again applied for adjournment. On the 4 next next next date date date i.e on 5th January 2005 learned Member of i.e on 5th January 2005 learned Member of i.e on 5th January 2005 learned Member of the the the tribunal passed an order on the restoration tribunal passed an order on the restoration tribunal passed an order on the restoration application application application that the same will proceed without that the same will proceed without that the same will proceed without reply reply reply of the 2nd respondent. The application for of the 2nd respondent. The application for of the 2nd respondent. The application for restoration restoration restoration was filed by the appellants within the was filed by the appellants within the was filed by the appellants within the stipulated stipulated stipulated period period period of limitation of 30 days. Though of limitation of 30 days. Though of limitation of 30 days. Though the the the 2nd 2nd 2nd respondent appeared in the said application respondent appeared in the said application respondent appeared in the said application on on on 29th April, 2004, the 2nd respondent went on 29th April, 2004, the 2nd respondent went on 29th April, 2004, the 2nd respondent went on applying applying applying for time to file reply till 13th December for time to file reply till 13th December for time to file reply till 13th December 2004. 2004. 2004. On 13th December, 2004 time was granted till On 13th December, 2004 time was granted till On 13th December, 2004 time was granted till 5th 5th 5th January, 2005. The roznama of the restoration January, 2005. The roznama of the restoration January, 2005. The roznama of the restoration application application application shows that on 24th January, 2005, 14th shows that on 24th January, 2005, 14th shows that on 24th January, 2005, 14th March March March 2005 and 13th April, 2005 advocate for 2005 and 13th April, 2005 advocate for 2005 and 13th April, 2005 advocate for respondent respondent respondent no.2 was absent. The hearing of the no.2 was absent. The hearing of the no.2 was absent. The hearing of the application application application was further delayed as the Presiding was further delayed as the Presiding was further delayed as the Presiding Officer Officer Officer was either absent or was transferred. was either absent or was transferred. was either absent or was transferred. Ultimately Ultimately Ultimately on 19th November, 2005 order was passed on 19th November, 2005 order was passed on 19th November, 2005 order was passed allowing allowing allowing the restoration application subject to the restoration application subject to the restoration application subject to payment payment payment of of of costs of Rs.200/- to the 2nd respondent. costs of Rs.200/- to the 2nd respondent. costs of Rs.200/- to the 2nd respondent. Hearing Hearing Hearing of the application was further delayed as of the application was further delayed as of the application was further delayed as the the the appellants were called upon to lead evidence. appellants were called upon to lead evidence. appellants were called upon to lead evidence. When When When an application for restoration of the Claim an application for restoration of the Claim an application for restoration of the Claim Petition Petition Petition arising out of a fatal accident was filed arising out of a fatal accident was filed arising out of a fatal accident was filed within within within the stipulated period of limitation, it is the stipulated period of limitation, it is the stipulated period of limitation, it is surprising surprising surprising that the learned Member of the Tribunal that the learned Member of the Tribunal that the learned Member of the Tribunal compelled compelled compelled the appellants to lead evidence for the appellants to lead evidence for the appellants to lead evidence for making making making out sufficient cause for restoration. Such out sufficient cause for restoration. Such out sufficient cause for restoration. Such a technical approach on the part of the tribunal technical approach on the part of the tribunal technical approach on the part of the tribunal was was was not at all warranted. not at all warranted. not at all warranted. 8.8.8. The 2nd respondent could have always given The 2nd respondent could have always given The 2nd respondent could have always given consent consent consent or or or could have left it to the learned Member could have left it to the learned Member could have left it to the learned Member 5 of of of the tribunal. However, hearing of the the tribunal. However, hearing of the the tribunal. However, hearing of the application application application for restoration was delayed for such a for restoration was delayed for such a for restoration was delayed for such a long long long time from the end of July, 2004 only because time from the end of July, 2004 only because time from the end of July, 2004 only because the the the 2nd respondent went on applying for 2nd respondent went on applying for 2nd respondent went on applying for adjournment. adjournment. adjournment. This was a case where the appellants This was a case where the appellants This was a case where the appellants had had had shown diligence by applying within the shown diligence by applying within the shown diligence by applying within the stipulated stipulated stipulated period of limitation. period of limitation. period of limitation. 9.9.9. Considering the aforesaid factual aspects, Considering the aforesaid factual aspects, Considering the aforesaid factual aspects, there there there may be some justification in denying interest may be some justification in denying interest may be some justification in denying interest up up up to the end of July 2004 when the 2nd respondent to the end of July 2004 when the 2nd respondent to the end of July 2004 when the 2nd respondent appeared appeared appeared for the first time before the tribunal in for the first time before the tribunal in for the first time before the tribunal in the the the restoration restoration restoration application. However, there was no application. However, there was no application. However, there was no justification justification justification for denying interest for further for denying interest for further for denying interest for further period period period as the appellants cannot be blamed for as the appellants cannot be blamed for as the appellants cannot be blamed for further further further delay and to some extent the blame for delay and to some extent the blame for delay and to some extent the blame for delay delay delay has to be shared by the 2nd respondent. has to be shared by the 2nd respondent. has to be shared by the 2nd respondent. Hence, Hence, Hence, I pass the following order : I pass the following order : I pass the following order : O R D E R R D E R R D E R (i) (i) (i) The impugned award is modified. The The impugned award is modified. The The impugned award is modified. The appellants appellants appellants are entitled to interest on are entitled to interest on are entitled to interest on compensation compensation compensation amount for the period between amount for the period between amount for the period between 1st 1st 1st August, 2004 till 5th December 2005. August, 2004 till 5th December 2005. August, 2004 till 5th December 2005. However, However, However, they will not be entitled to they will not be entitled to they will not be entitled to interest interest interest for period between 31st January for period between 31st January for period between 31st January 2004 2004 2004 to 31st July, 2004. Interest will be to 31st July, 2004. Interest will be to 31st July, 2004. Interest will be atatat the rate of 9 % p.a. the rate of 9 % p.a. the rate of 9 % p.a. (ii) (ii) (ii) Appeal Appeal Appeal is partly allowed in above terms is partly allowed in above terms is partly allowed in above terms with with with no no no order as to costs. order as to costs. order as to costs. (iii) (iii) (iii) The 2nd respondent is granted time of The 2nd respondent is granted time of The 2nd respondent is granted time of 3 months months months to deposit the enhanced amount. to deposit the enhanced amount. to deposit the enhanced amount. (A.S.Oka, (A.S.Oka, (A.S.Oka, J) J) J)