FAO 146/2020 1

$~11

*IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 27.10.2021

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FAO 146/2020

LATE MOHD ASIF THROUGH HIS MOTHER LEGAL HEIR

SHABNAM

..... Appellant

versus

SHAHID KHAN & ANR.

..... Respondents

HON’BLE MR. JUSTICE SANJEEV SACHDEVA

Advocates who appeared in this case:

For the Petitioner:

Mr. Vijay Kinger, Advocate (through VC).

For the Respondent:

Mr. Ashish Upadhyay, Advocate (through VC).

CORAM:-

JUDGMENT

1.

Appellant impugns order dated 19.06.2020 whereby the application

of the appellant seeking restoration of the claim petition dismissed in

default, has been rejected.

SANJEEV SACHDEVA, J. (ORAL)

2.

It is contended by learned counsel for the appellant that the appellant

is the legal heir of the deceased and is not educated. He submits that she

had entrusted the case to her advocate who did not appear when the matter

was listed. He submits that the appellant herself had appeared on an earlier

occasion and was under an impression that the review petition filed by the

respondents had been dismissed and the matter was proceeding.

2021:DHC:3412

FAO 146/2020 2

3.

He submits that she thereafter bonafidely filed an execution petition

seeking execution of the award and when she came to know that her claim

petition has been dismissed for non-prosecution, she filed the subject

application for restoration. It is contended that she became aware of the

dismissal of her claim petition only on 02.08.2019 and accordingly on

07.08.2019 subject application for restoration was immediately filed.

4.

It is contended by learned counsel for the respondent that there is no

plausible explanation given by the appellant for not filing the restoration

application within time.

5.

Perusal of the record shows that that the claimant had been

appearing on all dates in person. On the said date i.e. 12.09.2018 the order

records that none had appeared for the claimant and held that claimant was

not interested in pursuing the matter and accordingly dismissed the claim

petition in default.

6.

Subject claim petition was filed by the appellant on account of the

death of her son who was employed in the factory of the respondent No.1.

As per the claim petition the son died on account of electrocution in the

factory premises where it is alleged that there were open wires and

unrepaired electricity connection in the factory.

7.

Perusal of the order sheet shows that the claim petition was earlier

allowed ex-parte in favour of the appellant and the respondent had filed an

application seeking setting aside of the ex-parte order which was allowed

on 21.08.2018 and 2018 and thereafter the case was listed on 12.09.2018

2021:DHC:3412

FAO 146/2020 3

for written statements and framing of issues. It is on 12.09.2018 that the

appellant failed to appear and the claim petition was dismissed in default.

8.

The order of 12.09.2018 however, records that despite availing last

opportunity claimant failed to appear and file counter submissions and the

opportunity was closed. The order is clearly erroneous in as much as there

was no response to be filed by the claimants on the said date. The counter

submissions referred to in order dated 12.09.2018 pertain to the review

application of the respondent No.1 which review application already stood

allowed on 21.08.2018 so there was no question of appellant filing any

further counter submission.

9.

Be that as it may, it is observed that the claimant has filed the claim

petition with regard to the death of her son which allegedly took place in

the factory premises of the respondent.

10.

The Employee Compensa