Himachal Pradesh High Court
Triveni Prasad vs Kanwal Jeet And Others on 4 March, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.424 of 2009.
Reserved on: 26.02.2016.
Pronounced on : 04.03.2016
.
Triveni Prasad .....Appellant
Versus
Kanwal Jeet and others ..... Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice of Whether approved for reporting? Yes.
For the appellant: Mr.Rupinder Singh, Advocate.
rt For the respondents: Neemo for respondent No.1.
Ms.Shilpa Sood, Advocate, for
respondent No.2.
___________________________________________________________ Mansoor Ahmad Mir, Chief Justice This appeal is directed against the award, dated 27th July, 2009, passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P., (for short, the Tribunal), in Claim Petition No.91-MAC/2 of 2006, titled Triveni Prasad vs. Kanwal Jeet and others, whereby the Claim Petition filed by the claimant (appellant herein) came to be dismissed, (for short, the impugned award).
::: Downloaded on - 15/04/2017 19:52:08 :::HCHP 22. I have heard the learned counsel for the parties and have gone through the record.
3. Ms.Shilpa Sood, learned counsel appearing for .
the insurer, vehemently argued that the Claim Petition was not maintainable for the reason that the claimant had already filed a Claim Petition before the Motor Accident Claims Tribunal, Ambala, Haryana, for the same cause of of action and the said Claim Petition came to be dismissed in default, vide order dated 2nd June, 1994. Thus, it was rt submitted by the learned counsel that the instant Claim Petition is hit by the principles of res judicata. Ms.Sood further submitted that in terms of Order 9 Rule 9 of the Code of Civil Procedure (for short, CPC), the Claim Petition ought to be dismissed.
4. A perusal of the record reveals that the Claimant had filed a Claim Petition before the Motor Accident Claims Tribunal, Ambala, which was dismissed in default by the said Tribunal vide order dated 2nd June, 1994. Copy of the said order has been proved on record before the Tribunal as Ext.PW-2/A. It is apt to reproduce the said order hereunder:
::: Downloaded on - 15/04/2017 19:52:08 :::HCHP 3"Present: None for the petitioner.
Shri S.P. Chawla, counsel for respondents No.1,2.
Shri Ravinder Chawla counsel for respondent no.3.
Case called several times since morning. None .
has turned up on behalf of the petitioner. Waited sufficiently. It is already 12.35 P.M. Hence, present petition is dismissed in default. File be consigned to record room.
Sd/-
Motor Accident Claims Tribunal, Ambala, 2.6.94."
of
5. Thus, the moot question to be determined in this appeal is - Whether the fresh claim petition is maintainable in the event of dismissal in default in the presence of rt respondents/defendants, of the earlier instituted Claim Petition?
6. In order to determine the issue, a reference may be made to Section 169 of the Motor Vehicles Act, 1988, (for short, the MV Act), hereunder:
"169. Procedure and powers of Claims Tribunals.
1. In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
2. The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. (2 of 1974.) ::: Downloaded on - 15/04/2017 19:52:08 :::HCHP 4
3. Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry."
.
7. Section 176 of the MV Act empowers the State Government to make rules for the purpose of implementing the provisions contained in Sections 165 to 174 of the MV Act. It is apt to reproduce Section 176 of the Act, hereunder:
of "176. Power of State Government to make rules.
A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:--
rt a. The form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such applications;
b. The procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
c. The powers vested in a Civil Court which may be exercised by a Claims Tribunal;
d. The form and the manner in which and the fees (if any) on payment of which an appeal may be preferred against an award of a Claims Tribunal; and e. Any other matter which is to be, or may be, prescribed."
8. The Central and the State Governments have framed their own rules. State of Himachal Pradesh has also framed the Himachal Pradesh Motor Vehicles Rules, 1999, ::: Downloaded on - 15/04/2017 19:52:08 :::HCHP 5 (hereinafter referred to as the Rules). Rule 232 of the Rules ibid provides as under:
"232. The 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 Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30 ;
Order IX ; Order XIII ; Rule 3 to 10 ; Order XVI, Rules 2 to 21 ; Order XVII ; Order XXI and Order XXIII, Rules 1 to 3.
Section 169 and 176 (b)."
9. Thus, it is clear from the above quoted Rule that of the provisions of Order 9 of the CPC have been made applicable to the proceedings under the MV Act.
10. Order 9 Rule 9 of the CPC bars the plaintiff from rt instituting a fresh suit on the same cause of action where a suit is wholly or partly dismissed under Rule 8. However, the plaintiff is provided liberty to apply for setting aside the order of dismissal. It is apt to reproduce Order 9 Rule 9 of the CPC hereunder:
"9.Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.::: Downloaded on - 15/04/2017 19:52:08 :::HCHP 6
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
11. Thus, from the above it is clear that since the provisions of Order 9 Rule 9 of the CPC are applicable to the .
proceedings under the MV Act, therefore, in case a Claim Petition is dismissed in default under Order 9 of the CPC, the claimant has to file an application for recalling of the order of dismissal, which procedure, in the instant case, was never of adopted by the Claimant. Rather, the claimant chose to file a fresh claim petition, that too, in the State of Himachal rt Pradesh, which is not permissible under Rule 9 of the CPC.
12. Nothing was brought to the notice of the Court that the claimant ever applied for the recalling of the said order or the said order, at any point of time, was set aside by appropriate court of law. Thus, the said order of dismissal in default has attained finality.
13. In view of the above discussion, one comes to the inescapable conclusion that the second claim petition was barred.
14. Having said so, the claim petition was liable to be dismissed on this count alone.
::: Downloaded on - 15/04/2017 19:52:08 :::HCHP 715. As a consequence of the above discussion, I am of the considered view that the claim petition merits to be dismissed and the same is dismissed. Consequently, the .
appeal is also dismissed.
March 04, 2016. ( Mansoor Ahmad Mir ) (Tilak) Chief Justice of rt ::: Downloaded on - 15/04/2017 19:52:08 :::HCHP