27-wp-631-11.doc jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 631 OF 2011 Dilip Shankar Chavan ..Petitioner Vs. Babulal Venidas Patel and Ors. ..Respondents Shri. Nagesh Y.Chavan advocate for petitioner None for respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 20th JULY, 2011. P.C.: 1. Heard Mr. Chavan, the learned counsel appearing for the petitioner. All respondents are duly served but none appeared on their behalf. This petition is taken up for admission and decided forthwith. 2. The petitioner is an Indian citizen and is permanently residing in Sangli District. He is the original claimant in M.A.C.T. Petition No. 304 of 2006. 3. The 1st respondent is the owner of the offending vehicle which is a truck and the 2nd respondent is the insurer/insurance company. 4. By this petition under Article 227 of the Constitution of 1 27-wp-631-11.doc India, the petitioner is challenging the order passed on 24th September, 2010 by the Member, Motor Accident Claims Tribunal, Sangli in MACT Petition No. 8 of 2009. 5. It is not necessary to narrate the facts because, the petitioner filed this claim seeking compensation for an serious injury in an accident caused by the offending vehicle. In the claim petition, the petitioner sought compensation in the sum of Rs.2,75,000/-. The 2nd respondent appeared and filed written statement. 6. Thereafter an attempt was made for settlement and the matter was referred to permanent Lok Adalat. It appears that the matter was again listed before the Tribunal because the settlement could not be arrived between the parties. The same was listed on 4th December, 2008. However, the petitioner was not available on that date. It is the grievance of the petitioner that because of the accident and the injuries, he lost a permanent job. He was therefore, in search of job and left Sangli for Pune. He could not contact his advocate and give him instructions. It is in such circumstances that the claim petition came to be dismissed in default. 7. The petitioner upon knowledge of this order of dismissal filed Misc. Application No. 8 of 2009 for restoration. That 2 27-wp-631-11.doc application was opposed by the respondents and particularly by the Insurance Company. The impugned order arises out of the dismissal of this restoration application. 8. Having heard Shri. Chavan and with his assistance perusing the petition and annextures thereto, I am of the opinion that the learned Judge should have restored the MACT Claim Petition. It is rather surprising that on such an application the learned Judge directed parties to lead evidence. An affidavit in lieu of examination-in-chief was filed by the petitioner. There was an opportunity for cross- examination given to the Insurance Company. It may be that the petitioner was aware of the pendency of the Claim Petition and that it was listed for hearing on a particular date. However, the learned Judge does not find fault with the petitioner for remaining absent on the relevant date viz. 4th December, 2008. Similarly, he does not find fault with the reason stated, namely, that the petitioner was unable to contact his advocate and give him instructions. Yet, when sufficient cause was shown for the absence on the relevant date, the learned Judge adopts a hyper technical approach and finds fault with the petitioner for not contacting his advocate 4 to 5 days before he decided to go 3 27-wp-631-11.doc to Pune. According to the learned Judge it is not a sudden development and since the petitioner did not inform his advocate this is an inaction on his part which shows his negligence. 9. Upon perusal of the order passed by the Court below, I am of the opinion that when the learned Judge does not dispute that the petitioner was absent because he had to go in search of job to Pune and was unable to give instructions to his advocate in advance as the visit was not fixed and planned, in such circumstances and looking into the nature of the claim by a person who is a sufferer and injured because of a motor accident, the Court below should have restored the main application to its file for disposal afresh in accordance with law. I am sure that the time taken in disposing of the Misc. Application could have been very well utilized for considering the grievance of the petitioner on merits. This is not a case where deliberate inaction or utter negligence is a conclusion which can be drawn from the admitted facts. It is not a case of malafides either. In such circumstances, liberal view should have been taken and the application ought to have been restored to file. 10. As a result of the above discussion, the writ petition succeeds. The order dated 24th September, 2010 is 4 27-wp-631-11.doc quashed and set aside and the MACT Petition No. 304 of 2006 is restored to the file of the Member, Motor Accident Claims Tribunal, Sangli for disposal afresh on merits and in accordance with law. Since the respondents are absent, there will be no order as to costs. [ S.C. DHARMADHIKARI, J. ] 5