Orissa High Court
Asit Kumar Mohanty vs The Second Motor Accidents Claims ... on 28 July, 1988
Equivalent citations: 1(1989)ACC147
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT K.P. Mohapatra, J.
1. The petitioner has challenged Annexures 6-C and 6-D, orders passed by the Second Motor Accidents Claims Tribunal (referred to as the 'Tribunal') on 19-5-1981 and 30-7-1981 respectively in a case Under Section 110-A of the Motor Vehicles Act (referred to as the 'Act').
2. The short and undisputed facts are that opposite party No. 2, who met with an accident on 13-12-1976 with the truck bearing registration No. O.R.U. 6025 belonging to the petitioner near village Bhanpur in Cuttack-Bhubaneswar Road, instituted a claim case Under Section 110-A of the Act (registered as Misc. Case No. 16 of 1977) claiming compensation of Rs. 45,000/-. In course of the proceeding, the Tribunal framed issues by order dated 2-3-1978 and the case was posted for hearing from time to time and lastly on 9-1-1979, it was dismissed for default, because opposite party No. 2 did not take steps (Annexure 6-A). On 7-2-1979 opposite party No. 2 filed a petition Under Order 9 Rule 9 of the Code of Civil Procedure (referred to as the 'Code') (registered as M.J.C. No. 7 of 1979). This M.J.C. was also dismissed for default on 2-7-1979. Long thereafter on 4-7-1980 opposite party No. 2 filed a petition (registered as M.J.C. No. 20 of 1980) purported to be Under Section 151 of the Code for restoration of the claim case (Misc. Case No. 16 of 1977), M.J.C. No. 20 of 1980 was taken up for hearing on 19-5-1981 and the Tribunal relying upon the decision reported in Suresh Kumar Moharana v. Brundaban Barik and Anr. 52 (1981) CLT 181, restored the claim case and posted the same for hearing (Annexures 6-C and 6-D).
3. Mr. S.K. Dey, learned Counsel appearing for the petitioner, challenged the order of restoration of the claim case which, according to him, was disposed of without notice on the petitioner. He further urged that in case the claim case shall be heard, opposite party No. 2 should be precluded to participate in it. Mr. Ajaya Mohanty, learned Counsel appear ing for opposite party No. 2, on the other hand contended that the impugned order of restoration of the claim case was in accordance with the ruling of this Court and since the claim case has been restored, opposite party No. 2 who is the claimant cannot be prevented according to law for participation in the hearing.
4. At the time of hearing of the writ petition, one of the legal questions that arose for consideration was whether the provisions of Order 9 of the Code are applicable to a claim case Under Section 110-A of the Act. This point has been answered by this Court in the case of Suresh Kumar Moharana (supra) and is no longer open to doubt in view of the provisions of Rule 20 of the Orissa Motor Vehicles (Accidents Claims Tribu nal) Rules, 1960 (referred to as 'the Rules'). Thereafter, if a claim case is dismissed for default or is decided ex-parte, the aggrieved party can invoke Rules 4, 9 and 13 of Order 9 of the Code, as the case may be, for appro priate relief.
5. Now coming to the decision in the case of Suresh Kumar Moharana's case (supra), a close reading thereof shows that the learned Judge referred to the relevant provisions of the Act and the Rules and 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-B and Rules 16, 17 and 19, I am inclined to hold that after the issues are framed the Claims Tribunal has no jurisdiction to dismits the claim petition for default or to refuse to make an award. After framing the issues, the Tribunal has to proceed with the cases, hold the inquiry, decide the issues and record its findings thereon notwithstanding the default by either party.
The above finding can be divided into two parts. First, if the claim case is not summarily dismissed Under Rule 5 of the Rules, as enjoined by Section 110-B 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.
6. 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 default on 9-1-1979 (Annexure 6-A). This order of dismissal is nonexistent in the eye of law, so also the order of dismissal of M.J. No. 7 of 1979 on 2-7-1979. Because the dismissal of orders did not exist in the eye of law, the question of bar of limitation for delay in filing the restoration M.J.C. No. 20 of 1980 did not arise. It will appear from the records of M.J.C. No. 20 of 1980 that the petitioner had been noticed and he had filed his counter opposing restoration of the claim case. Therefore, it cannot be said that he had not received notice and the impugned order of restoration dated 19-5-1981 (Annexure 6-C) was passed without compliance with the principles of natural justice. Once the claim case was restored and is to be proceeded with, it is elementary that opposite party No. 2, the claimant himself cannot be prohibited from participating in it by adducing evidence.
7. Viewed in the light of the above discussion, we do not find any material to interfere with the impugned orders (Annexure 6-C and 6-D). On the the other hand, we direct the Tribunal to treat the claim case, which is more than 10 years old, with expedition and dispose of the same within four months. The parties should appear before the Tribunal on 4-8-1988 for receiving directions.
8. In the result, the writ petition is dismissed. Hearing fee at Rs. 250/- (Rupees two hundred fifty).
D.P. Mohapatra, J.
9. I agree.