1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1955 OF 2009 Dagdu S/o Gafur Shaikh, Age: 50, Occ:Agri., R/o. Palsab, Tq. and Dist. Osmanabad. .. Appellant Versus 1. Sudhakar s/o Jaidev Phutane, Age: 40, Occ: Transport Business, R/o. Palsab, Tq. and Dist. Osmanabad. 2. New India Assurance Company Ltd., Bhivandi, Through Branch Manager, New Indian Assurance Company Ltd., Shivaji Chowk, Osmanabad. .. Respondents ... Mr. M.L. Dharashive, Advocate for appellant. Mr. K.V. Kulkarni, Advocate for respondent No.2. ... CORAM : R.G. KETKAR, J. DATE : 14TH DECEMBER, 2009. PER COURT : Heard Shri. M.L. Dharashive, learned Counsel for the appellant and Shri. K.V. Kulkarni, learned Counsel for respondent No. 2. 2 2. By order dated 10-11-2009 fresh notice was issued to respondent No. 1 for final disposal of the appeal. Though respondent No.1 is again served, no one appears on his behalf. 3. Admit. 4. Learned Counsel waives service for respondent No.2. 5. By consent, the appeal is taken up for final hearing forthwith. The appellant challenges the judgment and award dated 30-04-2009 passed by the learned Member, M.A.C.T. Osmanabad in M.A.C.P. No.100/2002. The appellant filed affidavit in lieu of examination in chief at Exhibit-36. He thereafter did not appear before the Court for cross examination. The affidavit in lieu of examination in chief was filed on 29-07-2008. The case was fixed for cross examination of the appellant on 3 09-09-2008, 18-09-2008, 25-09-2008,04-10-2008, 17-10-2008, 06-11-2008, 25-11-2008, 10-12-2008, 11-12-2008, 31-12-2008, 09-01-2009, 09-02-2009, 25-02-2009, 05-03-2009, 31-03-2009, 18-04-2009, 29-04-2009 and finally on 30-04-2009 claim petition was dismissed by the Tribunal which order is impugned in the present appeal. 6. From the events disclosed hereinabove, it is abundantly clear that despite giving several opportunities to the appellant, he did not avail of the opportunities. However, considering the fact that the claim petition arises out of the accident and the applicant is a vegetable vendor, in my opinion, interest of justice would be served by setting aside the impugned judgment and award subject to payment of the costs to respondent No.2. 7. It is made clear that the payment of costs shall be condition precedent. On condition of the applicant paying costs of Rs.5000/- (Rs. 4 Five Thousand only) to respondent No. 2 within four weeks from today, the impugned judgment and award shall stand set aside and M.A.C.P. No. 100/2002 shall stand revived. If the applicant fails to pay the costs within four weeks from today, the order dated 30-04-2009 shall stand revived. It is further made clear that respondent No. 2 will be entitled to agitate that the appellant is not entitled to interest on the amount of compensation as determined from 09-01-2008 till 30-04-2009 as the appellant was absent in the trial Court and he cannot take advantage of his own wrong. The trial Court will consider the said contention in accordance with law. Keeping the liberty to respondent No. 2 to agitate the said point, the appeal is allowed in above terms with no order as to costs. ( R.G. KETKAR, J.) sut/DEC09/fa1955.09