vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1478 OF 1995 WRIT PETITION NO.1478 OF 1995 WRIT PETITION NO.1478 OF 1995 Sonabai Kerappa Katkar & Ors. ... Petitioners V/s. Mohamad Jilani Mohmad Wahid Shaikh & Ors. ... Respondents Mr.G.S. Godbole for Petitioners None for Respondents CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: MARCH 27, 2008 MARCH 27, 2008 MARCH 27, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: . This petition challenges the order passed by the Tribunal refusing to restore the claim application. Petitioner No.1 is the mother of the deceased who met with a fatal accident. The petitioner Nos.2 to 4 are his children. The wife of the deceased has also died. The deceased was wounded fatally on 14.2.1983 in an accident involving a truck. The claim application was filed by the petitioners on 11.8.1983. The petitioners also filed an application under section 92A of the Motor Vehicles Act 1939, claiming 15000/- as no fault liability. The total claim that the petitioners sought was Rs.1 lakh. 2. On 28.6.1985, the application filed under section 92A of the Act was allowed and the petitioners : 2 : were directed to pay Rs.15000/- as no fault liability to the respondents. 3. The claim application was then taken up for hearing. The petitioners were assured by their advocate that he would attend to the matter. It appears that adjournments were sought by the petitioners’ advocate and granted from time to time. By an application made on 5.8.1985, a further adjournment was sought as Petitioner No.1 was unwell. The adjournment was granted. However, the petitioners were not informed by their advocate of the adjourned date. The petitioners were unable to remain present as they were not aware of the date. It appears that their advocate also did not remain present on that day. An application for an adjournment was made while the Tribunal was delivering the judgment in open Court on 4.9.1985 stating that Petitioner No.1 being old and unwell could not attend the Court. The claim application was dismissed. 4. It appears that after the dismissal of the claim application filed by the petitioners, a certified copy was applied for by the petitioner’s advocate. The advocate who was entrusted the work by the petitioners did not accept the delivery of the certified copies immediately. The petitioners accepted the certified copies on 17.4.1986. It appears that after obtaining : 3 : the certified copy, the petitioners approached another advocate for filing an application for restoring the claim application. That restoration application was filed on 25.8.1986. It was vehemently opposed by Respondent No.3. On 3.8.1993, the Tribunal dismissed the application condoning the delay and hence, the present writ petition. 5. A perusal of the order indicates that the claim application was dismissed since the claimants had not proved the incident and the involvement of the truck in the accident. The Tribunal observed that unless the documents which were relied upon by the claimants were proved by examining the witnesses the claim could not be allowed. Thereafter, the petitioners filed a restoration application bearing No.76 of 1993. This application was dismissed by the Tribunal on the ground that it was improbable that the petitioners were not aware of the date on which the matter was fixed for hearing and therefore, Petitioner No.1 ought to have remained present in Court on that date. 6. The Tribunal has, in my opinion, erred in dismissing the application. The Tribunal ought to have considered the fact that the petitioners had entrusted their matter to an advocate who was not diligent. The petitioners, therefore, could not have been penalised : 4 : for the default of the advocate engaged by them. It is well settled that the negligence of an advocate should not jeopardise the interests of a litigant who has been diligent. There is material on record to indicate that the Petitioners had, through their constituted attorney, enquired from their advocate the adjourned dates of hearing as well as whether the certified copy of the judgment was available. Despite these circumstances, the Tribunal has dismissed the application. In my view, the petitioners have shown sufficient cause for condoning the delay and restoring the claim application to file. 7. The impugned order is accordingly set aside. The petition is allowed. Motor Accident Claims Petition No.76 of 1983 is restored to file. It shall be disposed of by 31st December 2008. Rule made absolute. No order as to costs.