^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.0.1 M.A.NO. c^^ /2010 6' APRELLANTS ^ ^p, ^JmA^v^"'l;3 ^,p^^'1 ^.:>'":^1"" 'T^T'^' "^^" RESPONDENTS 4 v ^Oti - ^ pp IAO>M['r^'t- Kartik Ram S/o Late Panchram aged - about 55 years^ R/o Junwani chowk, Urga, TahsU 8& Distt.- Korba [C.G.] VERSUS Non-aoplicant no. 2 l.Mahendra Vishi^akarma S/Q Sukhadi, Aged-about 29 years, R/o village- Devgarh Thana- Sitapur, Distt- Sai^uja [C.G.] at present R/o Ring road, Balco Nagar, Thasil & Distt.- Korba [C.G.] S.Balbir Singh S/o Pyara Singh R/o Model town 314/13 Jhalsal Mandi, Distt- Fatehabad [Haryana] at present R/o qtr. No. 117, Bypass road, Balco riagar Korba, Tahsil & Distt.- Korba [C.O.] 3-The New India Insurance Company Itd. Throvgh- Divisional Manager, D'msion of&ce- T.P.Nagar, Korba, TahsU & Distt.- Korba [C.C.] APPEAL UNDER ORDER 43 RULE fDfci OF CODE OF CIVIL PROCEDURE Non-apolicant no< 3 ^ " HIGH COURT OF CHHATTISGARH AT BILASPUR Slnaie Bench: Hon'ble Shri Juslace Prashant Kumar Mishra M.A.No.59.^2010 APPELLANT RESPONDENTS Versys Kartik Ram Mahendra Vish^ikamia and ofrsers. Shrl Sanjay Patet, counsei for the appeitant. Smt< Chitra Shrivastava, counsei for respondent No.3. APPEAL UNDER SECTiON 43 RULE (I} (cS OF CODE OF CtVIL PROCEDURE ORAL QRDER (15.09.2010) This is an appeal under Order 43 Rule 1(c) of the C.P.C. Qy ttie impuaned order the Motor Accident Ctaims Tribunal has dismissed the app©l!ant'sapplicatlon under Order 9 Rule 9 of C.P.C. for r^toration of restoratlon appllcation. (2) The cialm petltion preferred by frie appetlant was djsmissed In default on 29-12-2008. Application under Order 9 Rule 9 of C.P.C. was also dlsmjssed In defauSt on 14-09-2CMB. Application for restoration was moved on the ground that the appeltant was suffering wft Malaria fever and his lawyer was aiso not weii, l^erefore frie default in appearance had occurred, (3) The rsspondent No.3 herein objected to the prayer for restoration on ttis ground that the reasons assigned for defautt In appearance is neitt^er proper nor sufficient anct ttiat prayer fw restoratson should be rejected. Respondente No. 1 & 2 were ex-parte before the Claims Tribunal. (4) On perusat of the order it vrould appear ttiat the appellant had submitted medlcai cert'sficate to the effect ftat he was not wetl and was advised rest from 12-09-2009 to 18-09-2CX)9. The order of dtsmissal In defauit was passed on 14-09-2W9. The tawyer engaged by th©api^ltant /^ . „ . .. . '..„ . / has also ftted a medical certtficate of hls c(wn itlness as well as hls affidavit -^- that he Is suffering from diabetes and he suddenly felt Itt on 10-09-20(a. (5) The Court beiow has observed that the lawye^ has attended his physicjan at Korba on 12-09-2CX®,therefore, he could have attended the Court at Korba on 14-09-2009 to make a prayer for adjoumment. The obsen/ation made by ttie trlal Court is not reasonable. A person who is not well and has gone for his own checkup to the physidan is not expeetecl to attend the hearing in the Court as he woutd not be in a position to suffer stress and strain of frav^ing and attending ttie Court. (6) tn any case when the appellant as well as hls lawyer have submitted their own medical certificates and ihe affidavite, the tearned Claims Tribunai shouSd havs taken pragmatte and llberal vlew of the matter and should have aHowed the prayer of restoration. In the opinion of ^is Court the prayer for restoratlon deserves to be and is hereby adowed. The impugned order "ss set-aslde. (7) The writ petition Is altowed. (8) Partles to bear thelr own coste. Sd/- Prashant Kumar Mishra Judge K