Judgment:
S.U. Khan, J.
1. Heard learned Counsel for the parties. Respondent Nos. 1 and 2 filed Motor Accident Claim Petition (M.A.C.P.) No. 198 of 2003 against petitioner, the insurance company and Ripusudan Pandey-respondent No. 3 the vehicle owner. Father of the claimants had died in an accident with the vehicle belonging to respondent No. 3. Claim petition was decided on 20.8.2004 by Motor Accident Claim Tribunal/Additional District Judge/Special Judge (Anti Corruption), Bareilly. Claim was allowed for Rs. 1,82,000. In the judgment copy of which is Annexure-7 to the writ petition it is mentioned that respondent No. 3 vehicle owner filed written statement, pleading that suddenly a child had come in front of the Jeep, the driver intended to apply the brake however, his foot pressed the accelerator instead of brake which resulted in the death of father of claimants. It was also pleaded in the written statement that the offending Jeep was insured with the petitioner-insurance company. Cover note number and the date on which it was issued were also mentioned in the written statement. It was also stated that driver of the offending Jeep was holding valid driving licence. Number of the driving licence was also mentioned and name of the driver was also mentioned as Ram Bahadur. It is also mentioned in the judgment that on behalf of the claimants themselves photocopy of the insurance cover note was filed and photocopy of the driving licence of Ram Bahadur driver of the offending Jeep was also filed. It is also mentioned that defendants did not file any oral or documentary evidence regarding accident and negligence of the driver in the accident. Under Issue No. 3 the Tribunal held that on the basis of insurance cover note etc. filed by the claimants it was approved that the Jeep was insured with the petitioner. Under Issue No. 2 the question as to whether at the time of accident Jeep driver was having valid driving licence or not was discussed. The petitioner-insurance company had vehemently argued that the driver was not having valid licence. The plea was accepted and it was held that it could not be proved that the driver was having valid driving licence. Ultimately it was directed that the awarded amount shall be paid at the first instance by the petitioner-insurance company and thereafter it would be at liberty to recover the same from respondent No. 3 the vehicle owner.
2. It has been stated that the said amount has been deposited by the insurance company.
3. After recital of the issues in the judgment dated 20.8.2004 the Tribunal observed that the claimants through Fehrist (Index) No. C-20 filed photo copy of D.L. of Ram Bahadur. D.L. stands for driving licence. However, under Issue No. 2 it held that no documentary evidence had been filed to show that the driver was having valid driving licence. Probably the Tribunal meant that original driving licence had not been filed.
4. Annexure-5 to the writ petition is copy of statement of P.W. 1. She was cross-examined by learned Counsel for the petitioner as well as learned Counsel for vehicle owner. Similarly copy of statement of P.W. 2 is Annexure-6 to the writ petition. He was also cross-examined by learned Counsel for the petitioner as well as learned Counsel for vehicle owner. It appears that respondent No. 3 filed two written statements copies of which ware Annexures-2 and 3. One was filed on 10.2.2004 and other on 8.3.2004. Annexure-2 is signed by respondent No. 3 as well as by Shri H. S. Anand, learned Counsel. However, Annexure-3 contains the signatures of some other advocate.
5. After Judgment dated 20.8.2004, respondent No. 3 filed a restoration replication on 18.9.2004 copy of which is Annexure-8 to the writ petition. In the said application it was stated that respondent No. 3 had handed over the case to his advocate Shri Roop Ram Rana for filing proper defence. Thereafter it was mentioned that applicant was not provided opportunity to defend his case on merit and the case was decided ex parte. It was further stated that applicant never engaged Shri H. S. Anand, advocate and his counsel was Shri Roop Ram Rana and that applicant wanted to contest the case on merit. Restoration application was signed by an advocate also. His name is not given but his signatures tally with the signatures of the advocate who signed second written statement-Annexure-3 to the writ petition. Restoration application was registered as Misc. Case No. 9 of 2004 and was allowed on 26.10.2004 by M.A.C.T., Bareilly. The said order has been challenged through this writ petition.
6. In the impugned order it is mentioned that counsel for claimants stated during the course of arguments that he had no objection if the restoration application was allowed and judgment dated 20.8.2004 was set aside and the claim petition thereafter was decided on merit after affording an opportunity to the Jeep owner to defend the petition on merit. This clearly shows collusion of the claimants with the Jeep owner. Moreover documents pertaining to insurance of the offending Jeep were also filed by the claimants. Obviously the documents must have been provided by respondent No. 3 the Jeep owner to the claimants. This further shows collusion.
7. In the impugned order it has been held that in the main judgment no argument of counsel for Jeep owner was mentioned hence it was clear that his counsel did not address the Court at the stage of arguments. It is also mentioned that respondent No. 3 did not sign the order sheet. In this regard learned Counsel for the petitioner has drawn the attention of the Court to Annexure-4 which is typed as well as photostat copy of the order sheet. On the order sheet of 12.2.2004 signatures of respondent No. 3 are there. On the margin of the order sheet of the said date there is endorsement by Shri H.S. Anand, learned Counsel for respondent No. 3 that on behalf of opposite party No. 2 (i.e., respondent No. 3 of this writ petition) no evidence was proposed to be adduced. It has further been mentioned in the impugned order that counsel of O.P. No. 2 also did not sign the order sheet on any date. From these facts it was concluded by M.A.C.T. that O.P. No. 2-Ripusudan Pandey was not being represented either personally or through counsel in the main case hence he did not get an opportunity to contest the same and judgment dated 20.8.2004 was delivered ex parte against him. Ultimately restoration application was allowed. Judgment and order dated 20.8.2004 was set aside.
8. I find that the impugned order is utterly illegal. Respondent No. 3 clearly admitted that he was aware of the proceedings and he also engaged Shri Rana as his counsel. Thereafter there is absolutely no explanation that why either respondent No. 3 or his advocate Shri Rana did not appear on any date and why respondent No. 3 did not adduce any evidence. There is absolutely no explanation that why Shri Anand, learned Counsel represented respondent No. 3. It is quite possible that Shri Anand may be colleague or junior of Shri Rana who entrusted him to look after the case on behalf of respondent No. 3. If respondent No. 3 did not bring any witness to be examined on his behalf and did not handover the driving licence of the driver to his advocate then his advocate whomsoever he may be could not properly contest the case on behalf of respondent No. 3. Shri Anand never made any concession of any sort on behalf of respondent No. 3 in the case before the Tribunal. Even if the entire role played by Shri Anand as counsel of respondent No. 3 is ignored, absolutely no ground for nonappearance had been pleaded by respondent No. 3. Accordingly, restoration application could not be allowed.
9. Therefore, it is amply proved that respondent No. 3 was not at all interested in conducting the case. After handing over some documents to the claimants, he did not consider it necessary to take care of the case. No leniency can be shown to such a party.
10. Accordingly, writ petition is allowed. Impugned order dated 26.10.2004 allowing the restoration application is set aside.