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Nandalal Kedia Vs. Jasawant Singh and anr. - Court Judgment

LegalCrystal Citation
Subject;Motor Vehicles
CourtGuwahati High Court
Decided On
Case NumberM.A. (F) 53 of 1981
Judge
ActsAssam Motor Accidents Claims Tribunals Rules, 1960 - Rules 5 and 6; Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 5
AppellantNandalal Kedia
RespondentJasawant Singh and anr.
Appellant AdvocateS.S. Sharma and D.K. Bhatra, Advs.
Respondent AdvocateA.K. Choudhury, Adv.
DispositionAppeal allowed
Excerpt:
.....by the statute. unless a case clearly falls within the ambit of the power, the tribunal is incompetent to dismiss the action. in the case in hand the order of dismissal was clearly violative of the assam motor accidents claims tribunal rules, 1960 read with the provisions of the code made applicable by 'the rules'.8. in the result we set aside the impugned order and allow the appeal......duty of the tribunal to cause service of the notice by a process server under the code when the postal service could not be effected on opposite party no. 1.6. in the result we hold that the learned tribunal had no jurisdiction to summarily dismiss the action and the impugned order is invalid and liable to be set aside, which we hereby do.7. we find reinforcement of the view taken by us, in samsul huda v. london and lancashire insurance co. ltd., air 1972 gauhati 35. in workmen of sotai tea estate, air 1965 assam 80; associated industries (assam) v. jadumoni bhanjo, 1971 lab ic 1005; hazi ali newas v. radheshyam khatowal. air 1973 gauhati 9, although on different context, but similar views have been expressed by this court.the power to non-suit a person must be clearly and.....
Judgment:

Lahiri, J.

1. By short-circuiting the process of trial more often than not the Tribunals cause great harm to the parties. It has become a common practice to nip in the bud the proceedings arising out of motor accident compensation cases before the Tribunal by adopting shortcut methods of dismissal of the actions without taking care to dispense the deliberate and benignant justice to the victims of motor accidents.

2. The Appellant-Claimant filed his claim petition before the learned Tribunal, took all necessary steps to serve notices on the Opposite Parties, the owner-driver of the truck as well as the insurer M/s. National Insurance Co. Ltd., Nowgong, Assam. He paid the postal charges for summoning the Opposite Parties. The processes were sent by registered post to the opposite parties. On 4-4-1981 Opposite Party No. 2 the Insurance Company appeared and prayed for time to file written statement. However, the service report on opposite party No. 1 was that the addressee was 'not known' to the postal peon, beamed Tribunal posted the case on 3-8-1981 and passed the following order :

'Fixing 3-6-1981 let opposite party No. 1 be called and on that date the Insurance Company and Opposite Party No. 1 shall file written statement'.

It shows that learned Tribunal took upon itself the obligation to serve notice which is in conformity with the provisions of Rule 6 of the Assam Motor Accidents Claims Tribunal Rules, 1960, for short, 'the Rules'. On 3-6-1981, opposite party No. 2 filed written statement. Learned Tribunal directed the petitioner to take steps within 10 days for serving notice on opposite party No. 1 and fixed 6-7-1981. Another connected matter was tagged with the case which was to come up on that date. On 6-7-1981 which was fixed for appearance of opposite party No. 1 and not for hearing, the claimant was absent and no steps had been taken by him to summon Opposite Party No. 1. So, learned Tribunal dismissed the claim case. One thing for sure is that in the instant case Opposite Party No. 2 appeared and asserted that they were liable to pay compensation only to the extent prescribed under Section 96 of the Motor Vehicles Act, 1940. It contested the claim on various grounds. The claim case was dismissed, therefore, it was a case of 'no award', that is, an award granting no compensation. Against this award the claimant has preferred this appeal.

3. The provisions of the Assam Motor Accident's Claims Tribunal Rules empowers summary dismissal of an application under Rule 5 if there are no sufficient grounds for proceeding. It is not a dismissal of that kind. In so far as the service of notice is concerned Rule 6 takes charge, which reads as follows:--

'6. Notice to parties involved.--If the application is not dismissed under Rule 5, the Claims Tribunal shall send to the owner of the motor vehicle involved in the accident and its insurer a copy of the application together with a notice of the date on which it will hear the application and may call upon the parties to produce on that date any evidence which they may wish to tender.'

In view of the nature of the claim proceedings the obligation has been cast on the Tribunal to see that the notices are served. In the Rules we do not find any provision for payment of any court-tee for issuance of any notice to the Opposite Party. It is a marked departure from the Code of Civil Procedure. We are of the opinion that in view of the nature and quality of the proceedings the legislature, in the fitness of things, thought it fit that a claimant, a victim of accident should not pay any court-fee nor should he be burdened with any liability except furnishing the names and addresses of the Opposite parties for serving the processes. In so far as summoning of witnesses is concerned we find in Rule 8 of 'the Rules' that it can be served only 'on payment of the expenses involved', Rule 9 restricts appearance of legal practitioners in such proceedings. Under these circumstances the Tribunals ought to guide a claimant and state the consequence of non-compliance of the directions of the Court. In the instant case the claimant had paid costs of serving notices by registered post, he had given the known address of the party and thus fulfilled his obligations. If the postal report showed that the addressee was 'not known' to the postal peon learned Tribunal should have taken recourse to serve the process through the process server of the Court. This obligation is cast on the Tribunal by Rule 6 of 'the Rules'.

4. Be that as it may, we find that the learned Tribunal has acted beyond its jurisdiction in dismissing the case of the petitioner when the insurer, Opposite Party No. 2, appeared in Court, submitted its written statement, and, thus the case could not have been dismissed insofar as it was concerned. Under Rule 20 of 'the Rules' the provisions of Order 5, Rules 9 to 13, 15 to 30, Order 13, Rule 21, Order 16, Order 17 and Order 23, Rules 1 to 3 are made applicable as far as practicable. In our opinion the provisions of the Orders and Rules of the Civil Procedure Code are not to be applied strictly but they may be used only for disciplined disposal of cases. However, let us turn to the provisions of Order 9 to find out whether the learned Tribunal could dismiss the entire case of the claimant when Opposite Party No. 2 had filed written statement. There is no rule in Order 9 which empowers the Court to dismiss the case against Opposite Party No. 2. We find that Order 9, Rule 2 provides for dismissal of suit when summones are not served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges and On no other count. In the instant case no court-fee or postal charge is required to be paid for summoning the opposite party. Even assuming that it was the obligation of the plaintiff to pay the court-fee and postal charges there is no order, general or specific by learned tribunal directing the claimant to pay court-fee or postal charges and, as such, no penalty of dismissal of the case could have been imposed under Order 9, Rule 2 of the Code. Order 9, Rule 5 lays down that when after a summons has been issued to the defendant, or to one of the several defendants and returned unserved, the plaintiff fails, for a period of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant. Therefore, the dismissal of the case against Opposite Party No. 2 is not envisaged in Order 9, Rule 5 of the Code.

5. The next question is could the learned Tribunal dismiss the suit following the provisions of Order 9, Rule 5 of the Code when summonses were not served by the Officer who are ordinarily to certify to the Court such returns? Under 'the Code' service of process is done by the process servers of the Court who are to certify to the Court about the manner of service and/or the returns. In the instant case the return was not certified by the Officer ordinarily certifying the returns, namely, the Nazir and other process servers. The return was just a note of a postal peon to the Post-Master which was communicated to 'the Tribunal'. Admittedly the summons was not served by the serving officers of the Court and there is no endorsement of the time and manner of service nor was it served in a manner required under the Code of Civil Procedure. We are of the view that the postal report is not the certification by any of officer of the Court who can, ordinarily certify service of summons. Under these circumstances we are of the opinion that Order 9, Rule 5 is inapplicable. In view of the provisions of Rule 6 of the Assam Motor Accident Tribunal Rules it was the duty of the Tribunal to cause service of the notice by a process server under the Code when the postal service could not be effected on Opposite Party No. 1.

6. In the result we hold that the learned Tribunal had no jurisdiction to summarily dismiss the action and the impugned order is invalid and liable to be set aside, which we hereby do.

7. We find reinforcement of the view taken by us, in Samsul Huda v. London and Lancashire Insurance Co. Ltd., AIR 1972 Gauhati 35. In Workmen of Sotai Tea Estate, AIR 1965 Assam 80; Associated Industries (Assam) v. Jadumoni Bhanjo, 1971 Lab IC 1005; Hazi Ali Newas v. Radheshyam Khatowal. AIR 1973 Gauhati 9, although on different context, but similar views have been expressed by this Court.

The power to non-suit a person must be clearly and specifically conferred by the Statute. Unless a case clearly falls within the ambit of the power, the Tribunal is incompetent to dismiss the action. The power of dismissal is a drastic, penal and lethal weapon to be exercised only when the Tribunal is conferred with the said power expressly and unambiguously. In the case in hand the order of dismissal was clearly violative of the Assam Motor Accidents Claims Tribunal Rules, 1960 read with the provisions of the Code made applicable by 'the Rules'.

8. In the result we set aside the impugned order and allow the appeal. However, we make no orders as to cost. We direct the appellant to take immediate steps for service of notice on Opposite Party No. 1 within 10 days from the date of receipt of the records by the Tribunal. As prayed for, the appellant is granted liberty to file correct address within the aforesaid period. Send down the records forthwith for early disposal of the matter by learned Tribunal.


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