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2011 DIGILAW 2114 (ALL)

Shesh Mani Shukla v. Union of India and others

2011-09-09

SIBGHAT ULLAH KHAN

body2011
Sibghat Ullah Khan, J.;- Heard learned counsel for the appellant. Motor Accident Claim Petition No.1 of 2005 by Union of India through Commanding Officer, respondent no.1 in this appeal, was filed against the vehicle owner (appellant), Oriental Insurance Company - respondent no.2 and Karamat Ali driver of the vehicle, respondent no.3. The said claim petition was decided on 21.4.2006 by Motor Accident Claim Tribunal/Additional District Judge, Court no.1, Pilibhit directing payment of Rs.73,909.00 by the Oriental Insurance Company and thereafter the Insurance Company was permitted to recover the amount from the appellant. 2. Inspite of sufficient service appellant had not appeared before the Tribunal. Thereafter, he filed restoration application which was registered as Misc. case no.11 of 2009. The Motor Accident Claim Tribunal dismissed the restoration application on 14.5.2010 which order has been challenged through this F.A.F.O. 3. In the claim petition appellant was represented by a counsel. However, subsequently he took up the case that he had not engaged any counsel and no notice of the claim petition was served upon the appellant. It has been stated that engagement of Shri Nihal Ahmad as counsel for the appellant before the Tribunal below was the result of a fraud, forgery and manipulation. 4. Under the award Insurance Company deposited the amount through Cheque dated 16.10.2007 and thereafter applied for recovery of the said amount from the appellant and consequently the recovery certificate was issued against the appellant on 14.8.2008. 5. Against the very order which has been challenged through this appeal (i.e. order dated 14.5.2010) petitioner filed writ petition no.37249 of 2010 which was dismissed on merit by detailed judgment dated 6.7.2010 copy of which is Annexure-VI 6. In para-14 of the affidavit filed in support of the stay application it has been stated that against order dated 6.7.2010 appellant has filed review petition which is pending. It has categorically been held in the judgment dated 6.7.2010 that appellant had filed his vakalatnama in the case and had engaged Shri Nihal Ahmad as his counsel before the Tribunal below. The writ petition was dismissed on merit and not on the ground of non-maintainability. Filing of this F.A.F.O. thereafter is utter abuse of the process of court. Appellant and Shri J.K.Srivastava, learned counsel who has filed this appeal both are severely condemned for filing this appeal after dismissal of the writ petition on merit against the same order. The writ petition was dismissed on merit and not on the ground of non-maintainability. Filing of this F.A.F.O. thereafter is utter abuse of the process of court. Appellant and Shri J.K.Srivastava, learned counsel who has filed this appeal both are severely condemned for filing this appeal after dismissal of the writ petition on merit against the same order. Shri J.K.Srivastava, learned counsel shall be careful in future. Shri Chandra Bhan Kushwaha, learned counsel who also filed listing application on 26.4.2011 in this F.A.F.O. is also similarly warned. 7. First appeal from order is accordingly dismissed. 8. Tribunal below/A.D.J. Court no.1, Pilibhit is directed to recover the amount from the appellant and hand that over to the Insurance Company at every cost within one month from the date of receipt of this order and send compliance report to this court. 9. Office is directed to send a copy of this judgment to M.A.C.T./A.D.J., Court No.1, Pilibhit. 10. Office is further directed to place copy of this order in the file of writ petition no.37249 of 2010 decided on 6.7.2010 in which review petition is pending.