IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.1735 OF 2014 (CPC) BETWEEN:
DR.HARISHCHANDRA RAI, S/O NARAYANA RAI, AGED ABOUT 38 YEARS, R/AT FLAT NO.702, BLOCK B, BEJAI, KAPIKAD ROAD, MANGALORE TALUK – 575005. …APPELLANT (BY SRI.K.RANJAN KUMAR, ADVOCATE) AND:
1. MRS.VIRNDA NAIR, AGED ABOUT 40 YEARS, R/O 205, KASTURI NAGAR, 2ND C MAIN, NCEF NAGAR, OFF OUTER RING ROAD, BENGALURU – 560043.
2. BAJAJ ALLIANZ GENERAL, INSURANCE CO.LTD, GE PLAZA, AIRPORT ROAD, YERWADA, PUNE-411006, REP. BY ITS MANAGER. ...RESPONDENTS (BY SRI.H.S.LINGARAJ, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.10.2013 PASSED IN MISC.NO.25/2012 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS (SPL) JUDGE, D.K., MANGALORE DISMISSING THE CLAIM, PETITION FOR COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this civil petition is listed for admission, with the consent of learned counsel for the petitioner and the respondent the matter is heard finally on merits.
2. This appeal is filed to set aside the order dated 01.10.2013 passed in Misc. Case No.25/2012 by the Court of the II Additional District and Sessions Judge, D.K., Mangaluru.
3. The facts leading to this appeal are that the appellant had filed a petition in MVC No.1991/2006 claiming compensation in respect of the damage caused to the vehicle in motor vehicle accident. When the matter was posted for evidence he was unable to appear before the Court due to unavoidable circumstances. Therefore, the claim petition was dismissed for non prosecution on 8.12.2010. Being aggrieved by the said order the appellant had preferred Miscellaneous Case No.25/2012 seeking restoration of the claim petition, but the same was rejected by the order dated 01.10.2013. Hence the appellant is before this Court.
4. As could be seen from the order passed in Miscellaneous case it is observed that the claim petition was posted for evidence of the petitioner on 08.12.2010. The petitioner being a medical practitioner could not attend the Court on 8.12.2010. Further it is observed that there are no reasonable grounds to condone the delay in filing the miscellaneous petition and there are no valid grounds to substantiate the contention of the petitioner that he was prevented from attending the Court proceedings for a justifiable cause. Considering the delay caused in filing the Miscellaneous Petition and for want of reasons to prove his absence in conducting the Court proceedings, the petition was dismissed.
5. The counsel for the appellant would strenuously contend that the petitioner is a doctor working in AJ Institute of Dental Science, Mangaluru. He was unable to attend the Court proceedings as he was on emergency duty. The petitioner was always diligent in attending the Court proceedings and even the delay caused in filing the miscellaneous petition was neither intentional nor deliberate. As such, there are valid grounds to set aside the impugned order.
6. Per contra, the learned counsel for the respondents submitted that despite several opportunities given, the petitioner was not diligent in attending the Court proceedings. Even the miscellaneous petition was filed at a belated stage. As such, there are no valid grounds for granting the reliefs claimed. In the event of allowing the appeal, the appellant – petitioner being at fault is not entitled for the interest from the date of dismissal till the date of restoration of the claim petition.
7. The Hon’ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others reported in (2013) 12 Supreme Court Cases 649, after considering the principles laid down in catena of decisions, has observed as follows:
21.1 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2 (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3 (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
8. In the instant case the main grounds for dismissal of the miscellaneous petition is that no valid reasons are assigned in filing the petition within the prescribed limitation period and the negligence of the petitioner in attending the Court proceedings. It is an admitted fact that the petitioner – appellant is a medical practitioner. Though the date of the case was intimated to him, due to emergency in an unexpected case the appellant was held up in the hospital. Considering the reasons assigned for non appearance before the trial Court in attending the proceedings, namely to give evidence in the claim petition and the reasons assigned in the miscellaneous petition, there are valid grounds for granting the reliefs claimed.
9. Accordingly, the appeal is allowed. The impugned order dated 01.10.2013 passed in Misc. Case No.25/2012 by the Court of the II Additional District and Sessions Judge, D.K., Mangaluru, is set aside.
10. The petitioner is not entitled to the interest from the date of dismissal of the motor vehicle claim petition i.e., from 08.12.2010 till the date of restoration of the claim petition.
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JUDGE ykl