1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7560 OF 2009 Guman Maharu Pawara, Age 39 yrs., Occu. Nil., R/o. Rohini, Tq. Shirpur, Dist. Dhule. ....Petitioner. Versus 1. Shriram Nimba Patil, Age Major, Occu. Vehicle Owner, R/o. Ektas, Tq. Amalner, Dist. Jalgaon. 2. The New India Assurance Co. Ltd. ....Respondents. Shri. Shrimant Mundhe h/f. Shri. S.P. Brahme, Advocate for petitioner. Shri. A.S. Usmanpurkar h/f. Shri. K.V. Kulkarni, Advocate for respondent No. 2. CORAM : R.K. DESHPANDE, J. DATE : 20th July, 2010. ORAL JUDGMENT : 1. This writ petition challenges the order dated 22.7.2009 passed by the Chairman, Motor Accident Claims Tribunal, Dhule, dismissing the application i.e. Claim M.A. No. 38/2007. The Claim Petition i.e. MACP No. 391/03 filed by the present petitioner was dismissed for non appearance by the counsel for the petitioner on 5.12.2007. The 2 application dated 26.6.2007 was filed for restoration and the same has been dismissed by impugned order dated 22.7.2009. 2. Notice in this matter was issued for final disposal on 17.11.2009. Shri. Usmanpurkar, the learned counsel appears for the respondent No. 2. Although the respondent No. 1 is served, none appears for him. The learned counsel for the parties agree that the matter can be finally disposed of at the stage of admission in view of notice dated 17.11.2009. Hence, Rule, made returnable forthwith. Heard the matter by consent of parties. 3. The petitioner has given reasons for non appearance before the Court on 5.12.2007 in his application. No doubt, it is true that the proceedings were fixed on 15.2.2006 and 18.4.2007. When the matter was listed on 5.12.2007, it is alleged that the counsel appearing for the petitioner could not contact the complainant and therefore, he could not be asked to remain present for tendering the evidence. He further urged that the counsel was also appointed as Court Commissioner in another matter and therefore, he could not remain present when the matter was called out. The application for restoration has been filed within a period of limitation. In view of this factual position on record, the Tribunal has committed an error, in dismissing the application for restoration. At the most, the Trial Court could have imposed the cost for restoration of the claim petition. The order of the Tribunal cannot, 3 therefore, be sustained and it is liable to be set aside. 4. Shri. Usmanpurkar, the learned counsel appearing for the respondent No. 2 has urged that the present petition is not maintainable as the Civil Revision Application can be filed under Section 115 of the Code of Civil Procedure (CPC). He relied upon the judgment of the Single Judge of this Court reported in 2004 (4) Mah. L. R. 142 in the case of Vaidik Seva Ashram Vs. Shivanand Ramji Desarwar (D) through L.Rs. After going through the said judgment, I do not find that this Court had laid down the law that if the application for restoration is rejected, then writ petition is not maintainable. On the contrary, the revision would be maintainable, if the order impugned is set aside and the proceedings before the Trial Court comes to an end. However, this is not the position, hence, neither the judgment is applicable to the facts of this case, nor the contentions of the learned counsel can be accepted. The learned counsel further submits that no sufficient cause has been made out for restoration. The Tribunal has noted that on earlier occasion the claimant and his advocate were absent and the Tribunal was, therefore, right in dismissing the application for restoration. The said contention cannot be accepted for the reason that the cause for non appearance on 5.12.2007 is required to be shown. Perusal of the application for restoration makes out the sufficient cause for restoration. The Tribunal has, therefore, acted in exercise of his jurisdiction with material irregularities, resulting failure of justice. The order, therefore, 4 needs to be set aside. 5. In the result, the instant writ petition is allowed. The order dated 22nd of July 2009 passed in Claim M.A.No. 38/2007 by the Chairman, Motor Accident Claims Tribunal, Dhule is hereby quashed and set aside. The MACP No. 391/2003 stands restored, subject to the petitioner paying cost of Rs. 500/- (Rs. five hundred) to the respondent No. 2 on the next date of hearing. [ R.K. DESHPANDE, J. ] ssc/wp7560.09