1. Heard learned advocate, Mr.R.K.Mansuri for the petitioner. Though rule is served on the respondents, nobody appears.
2. The petitioner is the original claimant of MACP No.9 of 2002 filed before the Motor Accident Claims Tribunal, Sabarkantha at Himatnagar. Said petition was dismissed for default as the petitioner was not present on the relevant date fixed for hearing. The petitioner preferred application for restoration of the main claim petition under Order IX Rule 9 of CPC along with an application for condonation of delay. However, said application was dismissed vide order dated 18-10-2011 passed by the learned Motor Accident Claims Tribunal at Modasa, District Sabarkantha in C.M.A.No.168 of 2010. Hence, the present Special Civil Application is preferred by the petitioner.
3. Although process was duly served, respondents did not remain present either personally or through advocate. Hence, the following order was passed by the Court (Coram: Anant S.Dave,J.) on 6-8-2012:
“Though served no one appears.
Heard learned advocate for the petitioner.
An undertaking dated 4-8-2012 is filed by petitioner inter alia stating that the petitioner-claimant will not claim any interest on the awarded compensation amount, if any, for the period from 04-10-2004 till the date of restoration. The above undertaking dated 04-08- 2012 is ordered to be taken on record.
Issue Rule returnable on 30.08.2012. Direct service is permitted.”
4. Normally, under Article 227 of the Constitution of India, this Court has limited power to interfere with the findings arrived at the trial court or the tribunal except in cases where the order suffers from miscarriage of justice or without jurisdiction or apparent legal error is committed. However, while using discretion in favour of affected parties i.e. victims or claimants in motor accident cases, lenient view should be taken by the trial court or tribunal.
5. Considering the undertaking filed by the petitioner before this Court and also considering the reasons shown by the petitioner before the Tribunal for condoning the delay caused in preferring the restoration application, this Court is of the opinion that sufficient cause has been given for condoning the delay in preferring the restoration application and hence, the tribunal has committed an error in dismissing the delay condonation application. In view of the above, this petition deserves to be allowed and delay caused in preferring the restoration application deserves to be condoned in the interest of justice.
6. This petition is accordingly allowed. Order dated 18-10- 2011 passed by the learned Motor Accident Claims Tribunal at Modasa, District Sabarkantha in C.M.A.No.168 of 2010 is quashed and set aside and delay caused in preferring restoration application is condoned. Learned Tribunal is directed to restore Motor Accident Claims Petition No.9 of 2002 to its original file. Petitioner is directed to file an undertaking before the tribunal to the effect that petitioner will not claim any interest on the awarded compensation amount, if any, for the period from 04-10-2004 till the date of restoration. Rule is made absolute to the aforesaid extent.
(M.D.SHAH, J.) radhan/