IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.239 of 2004
MADHAV KUMAR SINGH @ MADHAV SINGH & ANR.
Versus
KAMLA KANT JHA & ORS
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11. 8/7/2008 Heard the learned counsel for the appellants and the
learned counsel for the respondent no. 3, the New India
Assurance Company Ltd. Nobody appears for other
respondents in spite of the validly served notice on them.
The Insurance Company has also filed show
cause/rejoinder which is on record. The impugned order is
dated 12.4.2004 whereby and whereunder Misc. petition No. 8
of 2003 arising out of the claim case No. 40 of 1992 filed under
order 9 Rule 9 C.P.C. in respect of restoration of the aforesaid
claim case by setting aside the order of dismissal dated
7.8.2003, has been dismissed by learned 3rd. Additional District
Judge-Cum- Accident Claim Tribunal, Bhagalpur.
It has been submitted that the appellant’s claim case
No. 40 of 1992 was dismissed on 7.8.2003 for default as no
pairvi was made on behalf of the appellant nor anybody did
respond to the cause. The appellant was given an impression
that his claim case bearing No. 40 of 1992 has been transmitted
to the Lok Adalat and as such, he was prevented from taking
any effective steps for proceeding ahead with the matter in the
Tribunal. His subsequent petition filed under Order 9 Rule 9 of
the C.P.C. for restoration of the claim case was also dismissed
without appraisal of fact and circumstance, under which the
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claimant/appellant was prevented from pursuing the matter in
right perspective.
On the other hand, the learned counsel for the
respondent No. 3, the New India Assurance Company Ltd., by
referring the impugned order itself coupled with the order dated
7.8.2003 has submitted that conduct of the petitioners/appellant
is manifest wherefrom anyone could infer that in spite of
pendency of the claim case for about 11 years, not a single
witness on behalf of the claimant was ever produced. He has
also submitted that there was no occasion in the given situation
for filing any attendance of witness in the Tribunal by the
claimant/appellants in case they were really under the
impression that claim case has been transmitted in the Lok
Adalat.
Having considered the facts and circumstance,
averments made in the respective petitions as also other
connected materials on the record it would be desirable that an
opportunity to contest the matter on merit should be given to the
petitioner/appellants so that their claim case could be decided
by the court below but for that the Insurance Company should
also not be harassed for bearing them any interest for the
continuance of the proceeding right from 1992, for no fault of
their.
After hearing learned counsel of both sides, the period
of 12 years should be excluded to be counted for the purpose of
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paying any interest to the Claimant from the date of appearance
of the Insurance Company in the court below in case any award
thereof is made against them by the Insurance Company on
final conclusion of the proceeding.
The petition after setting aside the impugned order is
hereby allowed.
S.Ali (Subash Chandra Jha, J.)