1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION No. 8978 OF 2009 IN FIRST APPEAL (St.)No. 17676 OF 2009 ________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | ________________________________________________________ This application is for condonation of delay of 622 days, caused in filing first appeal. Heard Shri Nerlikar, learned counsel for the applicant and Shri Rathi, learned counsel for respondents. In the application the applicant averred that the advocate for the applicant had filed written statement as well as affidavit in chief. The advocate has taken due care but he has failed to communicate the decision in the matter. The applicant used to meet his advocate and used to ask about the stage of the matter. It is the case of the applicant that the concerned advocate, in reply used to tell him that the matter is still pending. However, subsequently there was communication gap. It is the case of the applicant that the concerned Advocate did not communicate the progress of the matter as also the decision. The notice of Darkhast No. 2 12/2009 was received by his wife, some time in the month of March 2009, as contemplated under Order 21 Rule 22 of the Civil Procedure Code, 1908. The applicant further asserts that his wife forgot to inform him about the receipt of that notice and ultimately the appeal is filed on 27-08-2009. Thus, in the process, the delay of 622 days is caused in filing the appeal. 2 On merits the learned counsel for the applicant submits that initially the respondents filed petition U/Sec. 166 of the Motor Vehicle Act, 1988. Pursis at Exh. 11 was filed seeking permission to convert the claim U/Sec. 166 to claim U/Sec. 163-A of the said Act. However, learned counsel submits that, there is no order permitting conversion of the petition from Section 166 to Section 163-A of the said Act. Apart from this, he submits that, this was hit and run case. The deceased was pillion rider and the applicant was driving the motorcycle bearing No. MH-22-C-9530. The accident was occasioned because of the dash given by the unknown truck. Therefore, he submitted that applicant is not at all responsible for causing accident. 3 The learned counsel for the opponent submitted that undoubtedly initially the claim petition was filed U/Sec. 166 of the said Act 3 and the pursis at Exhibit 11, seeking permission to convert the same to petition U/Sec. 163-A, of the said Act was filed. However, the Court did not pass any order permitting conversion. He further submitted that though death occurred in the year 2003 till date respondents have not received Rs. 50,000/- towards NFL amount. 4 Considering the averments in the application, as also controversy raised in the first appeal, in my opinion, the interest of justice would be served, if delay is condoned subject to payment of costs. In my opinion the applicant has made out the case for condoning the delay. 5 Civil Application is allowed in terms of prayer clause ‘B’ subject to applicant depositing cost of Rs. 5,000/-, within two weeks from today in this Court. The respondent is permitted to withdraw the amount of Rs. 5,000/- so deposited. If the amount is not deposited within two weeks from today, the Civil Application shall stand dismissed without further reference to the Court. (R.G. KETKAR, J.) 25th November, 2009 SDM* ca 8978.09 4