High Court · 2025

1. Heard learned counsel for the parties and perused the record.

2. This petition has been filed challenging the order dated 26.07.2021 passed by Motor Accident Claim Tribunal, District- Ghaziabad allowing an application under Order IX Rule 13 of C.P.C. filed by the claimants.

3. Brief facts of the case are that Claim Petition No. 366 of 2011 was filed by the claimants claiming compensation for death of their son in a road accident involving roadways Bus No. UP-12-K- 5906 belonging to Uttar Pradesh State Road Transport Corporation. The Corporation appeared in the aforesaid claim petition and has filed written statement. In the written statement, the Corporation has not denied the accident involving Bus No.UP- 12-K-5906 but has said that the accident was because of the negligence of the deceased and not of the negligence on the part of the driver of the Transport Corporation. The said claim petition was dismissed on 25.07.2012 in the absence of counsel for the claimants. A restoration application along with the delay condonation application for recalling the order dated 25.07.2012 was filed by the claimants on 18.04.2019. The case of the claimants-respondents inter alia was that they have appointed one counsel to conduct on their behalf, who has never informed them about the progress of the case and when they came to know about the dismissal of the claim petition, they appointed another counsel and got the record inspected and moved an application for restoration along with delay condonation application. It was also stated in the restoration application that because of the death of their son, they were not in a position to conduct the case personally and therefore, they have appointed one counsel. To this application, objections were filed by the U.P.S.R.T.C denying the averments made in the application. The objections filed by the U.P.S.R.T.C. have been annexed as Annexure No. 8 to the petition. The application filed by the claimants-respondents was allowed by the Tribunal by its order dated 26.07.2021. Hence the present writ petition.

3. It has been contended by counsel for the petitioner that after the dismissal of the claim petition on 25.07.2012, a second petition was filed by the claimants in the year 2017. In the second petition, the U.P.S.R.T.C. filed objections to the effect that the earlier petition filed by the claimants has been dismissed in default and thereafter, the claimants filed an application for withdrawal of the claim petition, which was allowed by order dated 21.01.2019. It has been further contended that since the claimants have filed a second claim petition in the year 2017 therefore, it is incorrect on their part to assert that they came to know about the order of dismissal in the year 2019 as stated in the restoration application. It has been further submitted by counsel for U.P.S.R.T.C. that since the petitioners were in knowledge of the order, at least in the year 2017 when they filed second petition, the Tribunal has erroneously allowed their application accepting their case that they had no knowledge of the dismissal of the claim petition.

4. Per contra, learned counsel for the respondents submitted that this objection was never taken by U.P.S.R.T.C. before the court below. The counsel for the respondents has referred to the objections filed by the petitioner, which are annexed as Annexure No. 8 to the petition and from perusal of the same, it is apparent that no such objection was taken by U.P.S.R.T.C. before the Tribunal. It has been further contended by counsel for the respondents that this objection has been taken for the first time before the writ court. Further, it has been submitted by counsel for the respondents that even assuming that the respondents came to know about the order dismissing their claim petition in the year 2017 when they filed the second petition, as alleged by the U.P.S.R.T.C., at the best the claimants-respondents were pursuing a wrong remedy and instead of filing a recall application, they filed second claim petition on a wrong legal advice.

5. After considering the arguments of the respective parties and perusing the record, I am of the view that Tribunal has committed no illegality in allowing the application under Section 5 of the Limitation Act as well as restoring the claim petition. The objection as to the filing of second claim petition was never taken by the Corporation-petitioner before the Tribunal and therefore, the said objection cannot be permitted to be taken for the first time at the stage of writ petition. There is no denial on the part of U.P.S.R.T.C. /petitioner as to the factum of accident and involvement of bus of U.P.S.R.T.C., which is apparent from their written statement, which was filed in the claim petition. The claimants-respondents cannot be blamed for choosing a wrong forum, especially, after loosing their young son in a road accident. The mistake, if any, was because of the wrong legal advice. Further, to condone the delay in filing the restoration application is a discretion of the Tribunal or the court and normally, the appellate or the writ court should not interfere with the exercise or discretion unless, the same is perverse.

6. Since there was no material before the Tribunal as to the filing of the second claim petition, I am of the view that nothing wrong has been done by the Tribunal. In view of the same, the writ petition lacks merit and is dismissed.

7. However, since the claim petition is pending since 2011, it would be expedient that the same may be considered and decided, expeditiously, after hearing all the concerned parties and giving a reasonable opportunity of leading evidence in respect of their case provided there is no other legal impediment Order Date :- 19.8.2025 Nitika Sri. (Manish Kumar Nigam,J.) NITIKA SRIVASTAVA High Court of Judicature at Allahabad

1. Heard learned counsel for the parties and perused the record.

2. This petition has been filed challenging the order dated 26.07.2021 passed by Motor Accident Claim Tribunal, District- Ghaziabad allowing an application under Order IX Rule 13 of C.P.C. filed by the claimants.

3. Brief facts of the case are that Claim Petition No. 366 of 2011 was filed by the claimants claiming compensation for death of their son in a road accident involving roadways Bus No. UP-12-K- 5906 belonging to Uttar Pradesh State Road Transport Corporation. The Corporation appeared in the aforesaid claim petition and has filed written statement. In the written statement, the Corporation has not denied the accident involving Bus No.UP- 12-K-5906 but has said that the accident was because of the negligence of the deceased and not of the negligence on the part of the driver of the Transport Corporation. The said claim petition was dismissed on 25.07.2012 in the absence of counsel for the claimants. A restoration application along with the delay condonation application for recalling the order dated 25.07.2012 was filed by the claimants on 18.04.2019. The case of the claimants-respondents inter alia was that they have appointed one counsel to conduct on their behalf, who has never informed them about the progress of the case and when they came to know about the dismissal of the claim petition, they appointed another counsel and got the record inspected and moved an application for restoration along with delay condonation application. It was also stated in the restoration application that because of the death of their son, they were not in a position to conduct the case personally and therefore, they have appointed one counsel. To this application, objections were filed by the U.P.S.R.T.C denying the averments made in the application. The objections filed by the U.P.S.R.T.C. have been annexed as Annexure No. 8 to the petition. The application filed by the claimants-respondents was allowed by the Tribunal by its order dated 26.07.2021. Hence the present writ petition.

3. It has been contended by counsel for the petitioner that after the dismissal of the claim petition on 25.07.2012, a second petition was filed by the claimants in the year 2017. In the second petition, the U.P.S.R.T.C. filed objections to the effect that the earlier petition filed by the claimants has been dismissed in default and thereafter, the claimants filed an application for withdrawal of the claim petition, which was allowed by order dated 21.01.2019. It has been further contended that since the claimants have filed a second claim petition in the year 2017 therefore, it is incorrect on their part to assert that they came to know about the order of dismissal in the year 2019 as stated in the restoration application. It has been further submitted by counsel for U.P.S.R.T.C. that since the petitioners were in knowledge of the order, at least in the year 2017 when they filed second petition, the Tribunal has erroneously allowed their application accepting their case that they had no knowledge of the dismissal of the claim petition.

4. Per contra, learned counsel for the respondents submitted that this objection was never taken by U.P.S.R.T.C. before the court below. The counsel for the respondents has referred to the objections filed by the petitioner, which are annexed as Annexure No. 8 to the petition and from perusal of the same, it is apparent that no such objection was taken by U.P.S.R.T.C. before the Tribunal. It has been further contended by counsel for the respondents that this objection has been taken for the first time before the writ court. Further, it has been submitted by counsel for the respondents that even assuming that the respondents came to know about the order dismissing their claim petition in the year 2017 when they filed the second petition, as alleged by the U.P.S.R.T.C., at the best the claimants-respondents were pursuing a wrong remedy and instead of filing a recall application, they filed second claim petition on a wrong legal advice.

5. After considering the arguments of the respective parties and perusing the record, I am of the view that Tribunal has committed no illegality in allowing the application under Section 5 of the Limitation Act as well as restoring the claim petition. The objection as to the filing of second claim petition was never taken by the Corporation-petitioner before the Tribunal and therefore, the said objection cannot be permitted to be taken for the first time at the stage of writ petition. There is no denial on the part of U.P.S.R.T.C. /petitioner as to the factum of accident and involvement of bus of U.P.S.R.T.C., which is apparent from their written statement, which was filed in the claim petition. The claimants-respondents cannot be blamed for choosing a wrong forum, especially, after loosing their young son in a road accident. The mistake, if any, was because of the wrong legal advice. Further, to condone the delay in filing the restoration application is a discretion of the Tribunal or the court and normally, the appellate or the writ court should not interfere with the exercise or discretion unless, the same is perverse.

6. Since there was no material before the Tribunal as to the filing of the second claim petition, I am of the view that nothing wrong has been done by the Tribunal. In view of the same, the writ petition lacks merit and is dismissed.

7. However, since the claim petition is pending since 2011, it would be expedient that the same may be considered and decided, expeditiously, after hearing all the concerned parties and giving a reasonable opportunity of leading evidence in respect of their case provided there is no other legal impediment Order Date :- 19.8.2025 Nitika Sri. (Manish Kumar Nigam,J.) NITIKA SRIVASTAVA High Court of Judicature at Allahabad