Ram Wati and ors. Vs. Commissioner of Police and ors. - Court Judgment

R.C. Jain, J.

1. By means of this petition under Article 227 of the Constitution, the petitioner seeks quashing of an order dated 16th November, 2001, passed by the Judge, Motor Accident Claims Tribunal, Delhi, thereby dismissing applications of the petitioner under Order 9 Rule 4 read with Section 151 of the Limitation Act seeking restoration of the petitioner which was dismissed in default.

2. The facts leading to the present petition are that on 18th March, 1994, the petitioner had filed a petitioner under the Motor Accident Claim Act for award of the compensation in regard to the accidental death of her only son of young age. The petition was dismissed in default on 18th March, 1997 as it was not being pursued diligently and steps for effecting service upon the respondents were not taken despite repeated opportunities allowed for the purpose. An application dated 3rd March, 2000, accompanied by another application under Order 5 of the Limitation Act was moved on behalf of the petitioner praying for setting aside the order of dismissal and its restoration after condensation of delay in filing the application with the averments and allegations that the petitioner is an illiterate lady ordinarily resident of a remote village in District Bulandshahar, U.P. She deputed a certain Shri Ram Babu to file and pursue the petition through an advocate by the name of Shri P.K. Tyagi. The counsel after filing the petition kept the petitioner and Ram Babu in dark about the progress of the petition and assured them that the petition was being pursued diligently, though in fact he failed to take steps for effecting service upon the respondents despite 7-8 opportunities granted for the purpose. On 17th April, 1997, certain Amar Pal who was witness in the criminal case met the Advocate Shri P.K. Tyagi and enquired from him about the progress of the petition and counsel informed him that the matter was listed for 18th April, 1997. On 9th February, 2000 Shri Ram Babu appeared in the court of the Metropolitan Magistrate where the trial of criminal case under Section 279/304-A IPC was in progress and he approached Mr. Tyagi, Advocate, to know about the progress of the petition. Mr. Tyagi, bluntly told him that as nobody was pursuing the matter, the petition stood dismissed in default. Shri Ram Babu informed the fact of the dismissal of the petition to the petitioner at her native village and, thereafter, she engaged a new counsel who inspected the record and filed the application. It is stated that the absence of the petitioner on 18th March, 1997, was not deliberate and the petition was dismissed owing to the callous/ negligence on the part of the counsel to pursue the matter as undertaken by him. Both application were supported by the affidavit of the petitioner.

3. The learned trial court has dismissed the application and refused to restore the petition mainly on the ground that the petitioner was negligent in pursuing the matter inasmuch as she or her counsel failed to take steps by filing the process fee etc. for effecting the service on the respondents despite several opportunities allowed for the purpose. No cause much less sufficient cause was made either for condensation of delay in filing the application or for setting aside the order of dismissal of the petition. Aggrieved by the said order he petitioner has filed the present petition.

4. I have heard the learned counsel for he parties and have given my thoughtful consideration to their submission. From the recapitulation of the various proceedings conducted ever since the filing of the petition uptill 18th March, 1997, viz. over a period of three years would undoubtedly show that the petition was not being prosecuted diligently on behalf of the petition but the ultimate question which requires consideration in this case is as to whether on the peculiar facts of this case that an illiterate lady with a rural background and belonging to a less advantageous section of the society and who had reposed confidence in her counsel and another person for prosecuting the petition should be allowed to suffer on account of the utter negligence of the counsel. Ordinarily the petitioner is suppose to keep a track of the progress of his/her court case but when the petitioner is based outside the place of the court/tribunal and the party had put implicit faith on the counsel as in the present case it was the bounded duty and responsibility of the counsel to keep the party abreast with the progress of the matter. In the case in hand the counsel who has taken upon himself the responsibility to take requisite steps necessary for the prosecution of the petition and had assured of the same to the petitioner, a higher responsibility rested with counsel. There is no rebuttal to the position that the counsel had not informed the petitioner or Shri Ram Babu about the progress of the petition or even about its dismissal. Rule of prudence as firmed up in a legal proposition that a party should not be made to suffer for negligence or misdemeanour of his counsel in the prosecution of the case. In the case in hand it is manifest that the counsel had betrayed the confidence reposed by the petitioner by not prosecuting the petition diligently and, thereforee, the petitioner who was handicapped largely on account her illiteracy and rural background should not and cannot be made to suffer particularly when the petition was for the grant of award of compensation in respect of the death of her only young son. The learned trial court ought to have taken these aspects into consideration rather then being guided by the strict adherence of the rules. Admittedly the respondents had not been served of the notice of the petition and no prejudice would have been caused if the dismissal of the petition had been set aside and the petition restored for being tied on merits.

5. Having considered the matter in its entirety, this court is of the opinion that on the peculiar facts and circumstances of this case it would be expedient in the interest of justice if the petitioner is allowed to pursue her petition. Accordingly the impugned order dated 16th November, 2000, is hereby set aside. The order of the dismissal of the petition is also set aside and the claim petition is ordered to be restored with the direction to the Tribunal to dispose of the same in accordance with law.