Orissa High Court
Bhagaban Mallik vs Nagendra Biswal And Anr. on 29 July, 1996
Equivalent citations: 1997ACJ1024, 1996(II)OLR298, 1997 A I H C 2736, (1997) ACJ 1034, (1996) 2 ORISSA LR 293, (1997) 1 TAC 73, (1996) 2 ACC 713
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. Entertaining doubt and visualising a situation which requires reconciliation and clarification of the judgment rendered in the cases of Asit Kumar Mohanty v. Second Motor Accident Claims Tribunal, Cuttack and Ors. (Vol. 60 (1988) CLT 587) restricting the applicability of Order 9 of the Code of Civil Procedure (in short 'the Code') to a particular stage before the Motor Accidents Claims Tribunal and Durga Devi Mishra v. Orissa State Road Transport Corporation and Anr. : (Vol. 67 (1989) CLT 184) wherein it has been held that Order 9 is applicable to a proceeding before the Tribunal but without indicating any restriction thereof, our learned brother P. C. Naik, J. felt the necessity for an authoritative pronouncement by a larger Bench for which we are in seisin of this Miscellaneous Appeal preferred Under Section 173 (1) of Motor Vehicles Act, 1939 (in short 'the Act').
2. To appreciate the legal position a brief reference to the factual matrix is necessary. Appellant Bhagaban Mallik filed Misc. Case No. 63787 before the Motor Accidents Claims Tribunal (hereinafter referred to as 'the Tribunal') claiming compensation of Rs. 31,000/- for the death of his mother. The claim petition was filed on 23-11-1987 and the notices were issued to the opposite parties. As they did not take proper steps they were set ex parte, but ultimately the order setting them ex parte having been set aside the matter was adjourned for settlement of issues and hearing. At the behest of the parties the case stood adjourned from time to time and ultimately on 31-10-1992 when none appeared for the petitioner the Tribunal closed the matter on 31-10-1992 fixing 7-11-1992 for judgment on which day the Tribunal passed a nil award and dismissed the claim petition, as there was no proof in respect of the claim advanced. The said Award has been called in question in the present Misc. Appeal. It was contended before the learned Single Judge that the Tribunal was justified in passing the Nil award in view of the ratio in Asit Kumar Mohanty's case (supra). Reference was also made to the case of Durga Devi Mishra (supra) wherein it has been held that the Tribunal has jurisdiction to entertain an application under Order 9 of the Code for restoring a claim petition which was dismissed for default. It has been observed in the referring judgment that in Asit Kumar Mohanty's case though the Court has held that Order 9 is applicable to a proceeding before the Tribunal but it has also observed that once the Tribunal has framed issues the claim case cannot be dismissed for default. Observing that applicability of Order 9 of the Code has been restricted in Asit Kumar Mohanty's case and there is no such restriction in Durga Devi Mishra's case, reconciliation/clarification is thought to be necessary.
3. As we understand from the judgment of reference the question which calls for determination is whether after issues are settled, the Tribunal should pass an award when the claimant is absent or whether the Tribunal would dismiss the claim petition because of non-prosecution.
4. To appreciate the whole scenario it is appropriate to refer to Section 168 of the Motor Vehicles Act, 1988 which reads as under :
"168. Award of the Claims Tribunal--(1) On receipt of an application for compensation made Under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be : xx xx xx ".
This provision corresponds to Section 110-B of the 1989 Act. As per the aforesaid provision the Tribunal is required to hold an inquiry into the claim and pass an award determining the just compensation. A set of rules have been framed which is called as 'the Orissa Motor Vehicles (Accidents Claims Tribunals) Rules, 1960' (hereinafter referred to as 'the Rules'). The relevant rules are Rules 5, 16, 17, 19 and 20. The same are quoted below :
"5. Summary dismissal of application--The Claims Tribunal may, after considering the application and the statement, if any, of the applicant recorded under Rule 4, dismiss the application summarily if for reasons to be recorded in writing, it is of the opinion that there are no sufficient grounds for proceedings therewith.
xx xx xx
16. Framing of issues--(1) After considering any written statement the evidence of the witnesses examined and the result of any local inspection, the Claims Tribunal shall proceed to frame and record the issue upon which the right decision of the case appears to it to depend.
(2) Notwithstanding anything contained in Sub-rule (1) the Claims Tribunal may drop the proceedings at any stage in its discretion if the claim is admitted by the owner or Insurer.
(17) Determination of Issues--After framing the issues, the Claims Tribunal shall proceed to record evidence thereon which each party may desire to produce.
xx xx xx
19. Judgment and award of compensation--(1) The Claims Tribunal, in passing orders shall record concisely in a Judgment the findings on each of the issue framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurer and also the person or persons to whom compensation, shall be paid.
20. Code of Civil Procedure to apply in certain cases--The following provisions of the First Schedule to the Code of Civil Procedure, 1908 shall, so far as may be, apply to proceedings before the Claims Tribunals, namely, Order V, Rules 9 to 13 and 15 to 30, Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXIII, Rules 1 to 3."
5. Keeping the aforesaid provisions this Court in the case of Suresh Kumar Maharana and others v. Brundaban Barik and another, reported in AIR 1981 Orl. 203 held as follows :
"No doubt. Rule 5 of the Rules provides for summary dismissal of a claim petition. But if the claim petition is not dismissed summarily under Rule 5 and the proceeding is continued in accordance with the subsequent rules and ultimately issues are framed under Rule 16, the Claims Tribunal must decide the issues and record its findings thereon in its judgment as provided by Rules 17 and 19 The Act and the Rules enjoin a duty upon the Tribunal to hold an inquiry into the claim and there is no scope for dismissal of the claim for default. On a careful consideration of the provisions of Section 110-Band Rules 16, 17 and 19, I am inclined to hold that after the issues are framed the Claims Tribunal has no jurisdiction to dismiss the claim petition for default or to refuse to make an award. After framing the issues, the Tribunal has to proceed with the case, hold the inquiry, decide the issues and record its findings thereon notwithstanding the default by either party."
In that case it was decided that the Tribunal cannot dismiss a claim petition for default after issues are settied and if it does so it would amount to a nullity which can be ignored by the Tribunal.
6. In the case of Asit Kumar Mohanty the challenge was to an order by which the Tribunal had restored a claim petition exercising power Under Section 151 of the Code. This Court delineated with regard to the jurisdiction of the Tribunal in this matter. Their Lordships referred to the case of Suresh Kumar Moharana and after quoting paragraph 9 of the said judgment segregated the findings of the said case into two parts and recorded their views. It is profitable to quote their Lordships observation :
"First, if the claim case is not summarily dismissed under Rule 5 of the Rules, as enjoined by Section 110-3 of the Act. it is mandatory to hold an inquiry into the claim. Second, after the issues are framed the Tribunal has no jurisdiction to dismiss the claim case for default or to refuse to make an award. So far as the first part referred to above was concerned no dispute was raised by either party relating thereto and the correctness of the finding was not challenged. So far as the second part was concerned, arguments were advanced as to correctness of the finding with regard to applicability of the provisions of Order 9 of the Code. It was submitted that according to Rule 20 of the Rules, Order 9 of the Code is applicable to the proceeding of a claim case from the beginning to the end and not from the stage of framing of issues and thereafter. In other words, if a claim case is dismissed for default as envisaged in Rule 5, or after issuance of notice to the owner of the Motor Vehicle involved in the accident and its insurer as envisaged in Rule 6 of the Rules, or at any time thereafter, or the claim case is decided in the absence of the owner of the vehicle and its insurer and an ex parte award is passed, the aggrieved party can take resort to Order 9 of the Code for setting aside the order of dismissal or for setting aside the ex parte award on showing sufficient cause for non-appearance in terms of Rules 4, 9 and 13 thereof to the satisfaction of the Tribunal. We therefore, agree partially with the view expressed by the learned Judge in the case of Suresh Kumar Moharana's case (supra) and clarify the legal position to the effect that as enjoined by Rule 20 of the Rules, Order 9 of the Code is wholly applicable to the proceeding of a claim case, irrespective of its stage."
In the aforesaid case their Lordships further observed in paragraph 6 of the judgment :
"Coming to the case in hand as already referred to above, issues were settled on 2-3-1978 and so the claim case could not have been dismissed for deault on 9-1-1979 (Annexure 6-A). This order of dismissal is non-existent in the eye of law........."
From the ratio of the aforesaid judgment we find that the view expressed in Suresh Kumar Moharana's case was partially accepted By the Division Bench. As we understand from the partial acceptance. Order 9 of the Code would be applicable at every stage commencing from summary dismissal as enjoined in Rule 5, after issuance of notice as envisaged in Rule 6 or at any time thereafter or after the decision is made in absence of the owner or the insurer and an aggrieved party can resort to Order 9 of the Code. To elucidate, it becomes clear that even if the Tribunal passes a Nil award the same can be set aside by filing an application to set it aside as provided under Order 9 which has been made applicable under Rule 20 off the Rules. If the Tribunal does not pass an award after settlement/framing of issues but dismisses it for default that would be without jurisdiction and that does not really exist in the eye of law. As far as this judgment is concerned their Lordships have affirmed the view expressed in Suresh Kumar Moharana's case that it is obligatory on the part of the Tribunal to pass an award after settlement of issues.
7. We may now refer to the case of Durga Devi Mishra. That was a case which was referred to a Division Bench because the learned Single Judge expressed doubt with regard to the ratio of the decision in the case of Smt. Nisamani Swain and Ors. v. Maheswar Sahu and Ors.: (Vol. 58 (1984) CLT 465). It is relevant to state here Nisamani's case. The learned Single Judge has held that the Tribunal had no jurisdiction to entertain an application under Order 9, Rule 9 of the Code. A division Bench referred to Rule 20 and held as follows :
"It is, therefore, obvious that the provisions of Order 9 of the CPC have been expressly made applicable to the proceedings before the Claims Tribunal in the State of Orissa. In that view of the matter the restoration of the claim case by the Tribunal was perfectly within its jurisdiction, and it must be held that Nisamani Swain's case (supra) has not been correctly decided by the Single Judge. The counsel appearing for the respondents also could not support the said decision in view of the specific provisions in the aforesaid rules making Order 9 of the Code of Civil Procedure applicable to the proceedings before the Accidents Claims Tribunals."
It is pertinent to mention here that in the aforesaid case the claim case was dismissed for default and subsequently restored on an application being filed and the Division Bench held that Tribunal was within its jurisdiction to restore the same by holding that Order 9 of the Code has been expressly made applicable. In that case the issue was not whether the Tribunal could dismiss for default or not and whether the Tribunal was bound to pass an award after a particular stage. In fact, in the aforesaid case the Court has directed itself with regard to the power of restoration. As has been rightly observed in the referring judgment there is no conflict between the two opinions. We also notice in Durga Devi Mishra's case it has been held that Order 9 is applicable. No riders have been imposed, no restrictions have been incorporated. In the case of Asit Kumar Mohanty their Lordships also observed that Order 9 of the Code is wholly applicable to the proceeding of a claim case irrespective of its stage and the language used in para 5 of the judgment by their Lordships is that Order 9 is applicable to the proceeding of a claim case from the very beginning to the end. We do not see any restriction imposed thereon but their Lordships have in para 6 of the said judgment observed that the Tribunal cannot dismiss a claim petition for default after issues are settled. As we find from the referring judgment a doubt has cropped up if Order 9 is absolutely applicable whether the Tribunal should have jurisdiction to dismiss for default in absence of the claimant and when there is no response on his behalf on the date of hearing, or the Tribunal should proceed to pass an award. The view indicated therein, if Order 9 has application from the beginning to the end, and the Civil Court has jurisdiction to dismiss a suit on the date of absence of the plaintiff there is no reason to arrive at a conclusion that the Tribunal should proceed to pass an award after issues are settled, and should not dismiss the claim petition for default as such an interpretation is not in consonance with the Rule 20 of the Rules as well as the Bench decisions of this Court which have laid down that Order 9 is applicable at every stage. Here perhaps a clarification is necessary to dispel the doubt.
8. By incorporation of Rule 20, Order 9 has been made applicable. The said rule has to be read in harmony with other Rules. Rule 5 confers express power on the Tribunal to dismiss an application in a summary manner. As already indicated earlier Rule 16 deals with framing of issues. Rule 17 provides that after framing the issues the Claims Tribunal shall proceed to record evidence thereon which each party may desire to adduce. As envisaged under Rule 19 the Claims Tribunal in passing the order shall record concisely in a judgment the findings on each of the issues framed and the reasons for such finding and make an award, justifying the amount of the compensation to be paid by the insurer and also the person or persons to whom compensation shall be paid. If an application is not summarily dismissed it continues to reach its logical end, and the logical end is as provided for under Rule 19 of the Rules. That apart, Section 166 (old Section 110-B) casts a mandate on the Tribunal to pass an award determining the amount of compensation. Reading the Rules in juxtaposition of Section 166 of 1988 Act (110-B of the old Act) it is beamingly clear that the Tribunal has no jurisdiction to dismiss a claim petition for default after issues have been framed. But, if an award has been passed, the same can be set 3side taking resort to Order 9 of the Code. We may hasten to add that in the Motor Vehicles Act the Tribunal has been created so that the parties can seek adjudication of their grievances and claim compensation for tortious act, technical fetters and procedural obstacles are not to be emphasized by the Tribunal. Because of this purpose Under Section 166 of the Act it has been, mandated that the Tribunal should conduct an inquiry which in our veiw, also would include an inquiry in respect of a claim of an absentee claimant. The Tribunal in all cases need not pass a Nil award. On perusal of the documents filed by the parties and causing such inquiry as it may deem fit and in the fitness of things finding out the factum of accident from the available papers and the validity of insurance coverage may pass an award as a prudent person would do in the facts and circumstances of the case. Statutory duty is cast on him to do so. Being an authority under a benevolent statute he cannot dismiss the claim petition for default when some materials can be made available. The rule making authority in its wisdom has framed rules conferring express authority on the Tribunal to dismiss a claim petition summarily at a particular stage, and thereafter has laid down the requirements on the part of the Tribunal to pass an award. These rules are in consonance with the Scheme of the Act and more so with the provisions enumerated Under Section 110-8 (presently 168). In the case of Asit Kumar Mohanty it has been held that Order 9 of the Code Is applicable at all stages. By holding that it is applicable "at all stages, it means, even if an award is passed in absence of the claimant, and in stead of preferring an appeal the party can move the Tribunal taking resort to the provisions of Order 9 to set it aside. The concept of Order 9 will be applicable to a dismissal order under Rule 5 as well as to an award passed under Rule 19 if the claimant is absent. Same also is applicable for the opposite parties if the award has been passed ex parte. To read otherwise would make the Scheme of the Act and the provisions under the Rules nugatory and would defeat the stipulations made therein. We may further observe that the beneficial aspect of Order 9 has been made totally applicable to a proceeding under the Act but the technical impositions, like dismissal for non-prosecution and absence, has been curtailed by the Rules and the provisions in the Act. This interpretation is purposive and is in harmony with the object of the Act and the Rules and we accordingly make this clarification. This should reconcile the ratio of the judgments rendered in the cases of Asit Kumar and Durga Devi Mishra (supra).
9. After answering the reference in the aforesaid manner we would have normally sent the matter to the learned Single Judge. In course of hearing of the matter we wanted the learned counsel to address us on merits and they unhesitatingly agreed for disposal of the Misc. Appeal by the Division Bench.
10. We have perused the award passed by the Tribunal, We notice that the Tribunal has issued notice to the claimant-petitioner therein by order dated 22-4-1992 to appear on 31-10-1992 for hearing. On 31-10-1992 there was no appearance on behalf of the claimant petitioner and the Tribunal fixed the matter for passing of the award. We find, there is no denial of existence of insurance policy by the insurer. The owner had not filed written statement and was set ex parte. In the present appeal he has also not appeared. We have also taken into consideration the grounds canvassed in the present appeal that the claimant-appellant was seriously ill and the father of the counsel was suffering on the date fixed and, therefore, there was no appearance on the date of hearing. We are of the considered view that there was justification for the absence of the claimant-appellant before the Tribunal. We make it clear that in a case of this nature the High Court even sitting in appeal can examine the cause of absence of the party and grant the required relief if the party in stead of approaching the Tribunal to set aside the order/award comes directly to this Court. In view of our aforesaid findings we set aside the impugned award and remit the matter to the Tribunal. The claimant and opp. party No. 2 would appear before the Tribunal on 8th of September, 1996 to take further instruction. As we are remitting the matter to the Tribunal we would direct the Tribunal to issue fresh notice to the owner, opp. party No. 1, and proceed thereafter as per law.
11. The Misc. Appeal is accordingly allowed. Parties to bear their own costs.
S. Chatterji, A.C.J. I agree.