IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 420 of 2009 Date of Decision : November 23rd, 2009 Sh. Het Ram Garg Petitioner Versus Sh. Mahesh Ohri and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. G. D. Verma, Sr. Advocate, with Mr. B. C. Verma, Advocate, for the petitioner. For the respondents : Ms. Sunita Sharma, Advocate, for respondent No. 3. Sanjay Karol, J. (Oral) The petitioner herein is partly aggrieved of the impugned order dated 22.5.2009 whereby his application for recalling the earlier order dated 2.6.2008 passed by the Motor Accident Claims Tribunal, Fast Track Court, Shimla in Petition No. 173-S/2 of 2005/03, titled as Sh. Het Ram Garg versus Sh. Mahesh Ohri and others, stands dismissed with cost of Rs. 5000/-. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Even though respondents No. 1 and 2 herein stand served but none has caused appearance, hence matter is being considered in their absence. On 2.6.2008 the Tribunal passed the following order: “No PW is present. Even steps to summon the witnesses as per the last/Court order(s) have not been taken till date. Learned counsel for the petitioner prays for the grant of more time to lead the evidence on the ground that the disability certificate has not been issued in favour of his client so far. Time prayed is granted being not opposed and in the interest of justice. Thus, now put up on 4.7.2008 for P/E at own risk. 3rd and last opportunity. It is made clear that taking into account the cavalier manner in which the petition is being prosecuted by the petitioner, he will not be entitled to the interest on the Award money, if any, from the date of filing of the petition till the conclusion of his evidence.” On 4.7.2008 statements of the petitioner’s witnesses was recorded. On 29.9.2008 petitioner filed an application under Section 151 CPC for recalling the order dated 2.6.2008 as there was no intentional delay on his part and evidence could not be led for want of issuance of disability certificate by the appropriate authorities. In terms of the impugned order the application stands dismissed for the reason that even though the claim petition filed under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act), was filed on 11.3.2003, but issues could be 3 framed only on 17.1.2008 and petitioner failed to lead evidence inspite of various opportunities granted to him. The proceeding were conducted by him in a cavalier manner as the owner of the vehicle was arrayed as a party only after a period of more than six years. Even the name of the driver allegedly driving the offending vehicle at the time of the accident had been wrongly mentioned. While dismissing the application the Tribunal imposed cost of Rs. 5000/-. Importantly petitioner’s another application filed under Order 1 Rule 10 CPC, seeking impleadment of the owner of the vehicle was also decided in terms of the said order. The delay in impleading the original owner was not considered as a factor at all. In fact the application was not opposed by the respondents. Having perused the record I am of the view that the order passed is not only harsh, erroneous and not borne out from the record, but is also contrary to the settled position of law. The claim petition was presented on 29.3.2003 and on 2.5.2003 summons were directed to be issued to the respondents. Thereafter till 18.6.2004 the matter was adjourned from time to time as no Presiding Officer was available. On 12.8.2004 notices were again directed to be issued to the respondents. Only respondent No. 1 could be served and fresh steps for service of respondent No. 2 was directed to be taken. Thereafter the Presiding Officer went on leave and the matter was adjourned twice. On 4 29.11.2005 the case was transferred to another Court. Since one of the respondents was minor, an application under Order 32 Rule 2 CPC and another application under Order 1 Rule 10(2) CPC was filed. Till 4.7.2006, either the Presiding Officer was on leave or the matter was adjourned on the respondents’ request to file reply to the same and it was only on 5.5.2007 that application filed under Order 32 Rule 2 CPC was allowed and application under Order 1 Rule 10(2) CPC was dismissed as not pressed. As directed the amended memo of parties was filed by the petitioner and the matter was adjourned for filing reply to the main petition. It was only on 11.9.2007 that the insurers application filed under Section 170 of the Act was allowed and the matter was directed to be listed on 10.10.2007 for framing of issues on which date respondent No. 2 moved an application under Order 6 Rule 17 CPC which was allowed on 21.11.2007. Importantly, it was by way of amendment that the respondent No. 1 and 2 for the first time informed the correct name of the driver to be Atul Ohri and not Mahesh Ohri. Issues in the claim petition were framed only on 17.1.2008 when the matter was adjourned for recording the petitioner’s evidence on 28.3.2008 on which date petitioner did not produce any evidence and the matter was adjourned for 2.6.2008 on which date the order in question was passed. On the next date fixed i.e. 4.7.2008 statement of four witnesses produced by the claimant was recorded and his evidence was closed. 5 Record reveals that delay up to the stage of framing of issues is not attributable to the petitioner at all. Either the Presiding Officer was on leave or the respondents had repeatedly taken time to file reply or they had moved an application for amendment of the reply. Record also reveals that for the purpose of leading evidence petitioner had sought adjournment only twice and that too for want of issuance of the disability certificate by the authorities. Hence the observations that the petitioner had been pursuing the matter in a cavalier manner is contrary to the record and based on erroneous presumptions and assumptions of the Presiding Officer. The petitioner was seeking to recall order dated 2.6.2008 whereby his valuable statutory right for payment of adequate compensation by way of interest stood foreclosed. While passing the said order the Tribunal could have only taken into account his conduct as recorded in the proceedings prior to the said date. It seriously erred in rejecting the application by considering his subsequent conduct. It erred in observing that the petitioner had not taken steps for impleading the correct person as the owner of the vehicle. That apart, the stage for determining the petitioner’s entitlement for interest on the awarded sum had not arisen. No doubt the grant of payment of interest is discretionary in nature but however as stipulated under Section 171 of the Act, the stage for 6 award of interest would arise only with the allowing of the claim of compensation by the Tribunal. The proceedings were at the stage when even the petitioner’s evidence had not concluded. Hence no order disentitling him for payment of interest at all could have been passed. The question of payment of interest would arise only after determination of issues in favour of the claimant and quantification of compensation under the various heads. Further imposition of cost while dismissing the application is uncalled for. The application in question had been filed with promptitude and on justifiable grounds. It was neither malafide nor intended to protract the proceedings. Atleast it is not so borne out from the record. Infact the respondents had not opposed the same. Hence there was no question of imposition of any cost. The Apex Court in Ashok Kumar Mittal versus Ram Kumar Gupta and another, (2009) 2 SCC 656 has held that award of cost under Sections 35 and 35-A of the Code of Civil Procedure is discretionary and subject to the conditions and limitations prescribed under the provisions of law, compensatory costs for vexatious claims and defences may not exceed Rs. 3000/-. The primary object of levying costs is to recompense a litigant for the expense incurred by him in litigation to vindicate or defend his right. It is payable by a losing litigant to his successful opponent. Even this Court in M/s Rai Singh Roshan Lal Negi and others versus Surjit Bawa and others, 1986 Sim. L.C. 187 while dealing with 7 a case where cost of Rs. 1000/- had been imposed, had held that in the absence of any material to show that the expenses incurred by the respondents justified award of cost, to reimburse the opposite party, the imposition of cost was unreasonable. There is no doubt that while passing the impugned order the Tribunal had shown scant regard to the law laid down by the Court. The order appears to have been passed without any basis or justifiable grounds and reasons. The order has been passed in hot haste without application of judicial mind and judicial discretion. Importantly no costs were imposed while allowing the petitioner’s application for impleadment of the owner of the vehicle nor was any reference made with regard to his conduct while deciding the same. Hence in these circumstances the exercise of discretion by the Tribunal in the matter of award of cost is vitiated and the order passed in the exercise of discretion must be regarded as having been made in excess of jurisdiction resulting into failure and miscarriage of justice. The impugned order dated 22.5.2009, to the extent it dismisses the petitioner’s application for recalling the order dated 2.6.2008 is set aside. The order dated 2.6.2008 to the following extent is set aside: “It is made clear that taking into account the cavalier manner in which the petition is being prosecuted by the petitioner, he will not be entitled to the interest on the Award money, if any, from the date of filing of the petition till the conclusion of his evidence.” 8 It is however clarified that the conduct of the parties shall definitely be kept in mind while awarding interest, if any, at the time of the passing of the final award. The petition is allowed with the aforesaid observations. (Sanjay Karol), Judge. November 23rd, 2009 (PK)