R.R.K.TRIVEDI,J. - (1.) FACTS giving rise to this petition are that petitioner is owner of bus No USY 2375 which met an accident on 12.9.1984, at about 6.30 p.m., in which Kailash Nath Singh, husband of respondent No. 1 and father of respondents 2 to 4, died. Kailash Nath Singh was employed as a primary school teacher at the relevant date and time and was coming back from the school alongwith a fellow teacher Raj Bahadur Singh.
(2.) MOTOR Accident Claim Petition No. 38 of 1984 was filed by respondent Nos. 1 to 4 claiming damages on 19.10.1984. It may be mentioned here that petitioner did not appear before the Claims Tribunal in spite of notice by Court, though all the modes including publication on 24.3.1985 were resorted to. The claim petition was ultimately allowed and an award was passed on 6.9.1986 which followed an application under Order 9, Rule 13, C.P.C. by petitioner. The application of petitioner was allowed by the learned Tribunal vide its order dated 1.8.1987 on the condition that petitioner deposits a sum of Rs. 50,000/-. Petitioner challenged the aforesaid order in this Court by filing First Appeal From Order No. 664 of 1987 and this Court by order dated 4.9.1987 stayed the condition contained in she order dated 1.8.1987 requiring petitioner to deposit Rs. 50,000/-. However, further proceedings before the Tribunal after restoration were not stayed. After the order dated 4.9.1987 of this Court, the Tribunal proceeded with the case and fixed 8.10.1987, 2.11.1987, 7.11.1987 and 30.11.1987 for filing written statement by petitioner. On 30.11.1987, petitioner moved an application praying for time to file written statement. On this application Court fixed 7.1.1988 and permitted petitioner to file his written statement. However, petitioner did not appear and Court proceeded exparte and ultimately allowed the claim petition for Rs. 1,50,000/- and passed the award dated 23.5.1988. Then, petitioner filed another application Under Order 9, Rule 13 C.P.C. for setting aside the award dated 23.5.1988. This application was registered as Misc. Application No. 20 of 1988. It was fixed for 4.4.1989, on which date, it appears that an application was filed by learned Counsel for petitioner before the Claims Tribunal for adjourning arguments on the restoration application. However, as there was no body to press this application it was rejected and the application for setting aside award was dismissed in default on the same day. The order dated 4.9.1989 filed as Annexure 2 to the writ petition is being reproduced below: 4.4.1989: Case called out several times till 3.30. O.P. appeared with his Counsel but applicant did not turn up. IID. Counsel for the applicant left adjournment sick application with reader but he did not turn up to press it IID is therefore rejected. Application is dismissed in default of Applicant. Then another application was filed by petitioner for restoration of the application Under Order 9, Rule 13 C.P.C. on 11.4.1989 which was registered as Misc. No. 17 of 1989. The application was supported by an affidavit dated 6.4.1989 of Gyan Singh, father of petitioner. This application was contested by the respondents by filing objection and affidavit. The Claims Tribunal after hearing both the sides rejected the application of petitioner by order dated 26.8.1989, aggrieved from which this petition has been filed Under Article 226 of the Constitution.
(3.) I have heard learned Counsel for parties. Learned Counsel for petitioner has submitted that the absence of petitioner on the date fixed was a bona fide and the Counsel for petitioner moved application before the Claims Tribunal praying for adjournment and thereafter could not appear to press the application under the impression that it shall be allowed as per normal practice of the Court. It has been further submitted that the vehicle was insured. However, the Insurance Company was not impleaded and on that date the petitioner was required to show the papers that the vehicle was insured on the date of accident and as the petitioner could not appear with the papers, application was moved on the ground of non-availability of those papers. The application was illegally rejected. Learned Counsel for petitioner has further submitted that the vehicle was transferred by petitioner in favour of Ramanand Yadav, respondent No. 7, in the month of June, 1983, for an amount of Rs. 50,000/-. Ramanand Yadav filed an affidavit before the Regional Transport Officer, Sultanpur, which has been filed as Annexure 1 to the rejoinder affidavit. The affidavit is dated 25.7.1990. This paper shall be discussed subsequently at the relevant place.;