Skip to content


Smt. Nishemani SwaIn and ors. Vs. Maheswar Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 176 of 1983
Judge
Reported inAIR1985Ori128
ActsMotor Vehicles Act, 1939 - Sections 110A, 110B and 110D; Code of Civil Procedure (CPC) - Order 9
AppellantSmt. Nishemani SwaIn and ors.
RespondentMaheswar Sahu and ors.
Appellant AdvocatePradeep Mohanty and ;B.P. Ray, Advs.
Respondent AdvocateB.B. Ratho, ;R.P. Mohapatra and ;A.K. Mohanty, Advs.
DispositionAppeal allowed
Cases ReferredState of Orissa v. Member
Excerpt:
.....are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section..........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 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.'dismissal of a claim petition for default after the issues were framed was held in the said reported decision to be a nullity. however, no interference was made as the appeal was not maintainable.6. in the present case, the claimants were absent. opposite party no. 1, the owner of the vehicle causing the accident was present. the tribunal took up the inquiry. the claimants being absent to adduce any.....
Judgment:

S.C. Mohapatra, J.

1. Claimants in a proceeding under Section 110-A of the Motor Vehicles Act, 1939 (Act II of 1939) are the appellants.

2. The impugned order reads as follows : 'The petitioners are absent on repeated calls.No steps taken although the time at present is 12.30 P.M. Opposite party No. 1 present through his Advocate. Other opposite parties are absent and no steps taken. Enquiry of the case is taken up. Opposite party No. 1 denies to adduce any evidence. There is no evidence to prove the claims of the petitioners. Hence, the case is dismissed as claim not proved. Parties are to bear their own costs in the circumstances of the case.

3. In the memorandum of appeal, it has been stated on affidavit that the counsel was proceeding to the Tribunal on a Scooter with another Advocate, On the way as there was mechanical trouble, the Scooter had to be repaired for which there was delay in reaching the office of the Tribunal. It was stated that on 4-1-1983, though the case was fixed for hearing, the Advocate was to take steps for adding the correct insurer as a party which was available from the particulars supplied by another insuring agency who was made a party. Mr. B. P. Ray, the learned counsel for the appellants was also the Advocate for the claimants before the Tribunal. He has stated at the Bar that he was proceeding to Tribunal with Mr. Kishore Kumar Jena, when the Scooter gave mechanical trouble. The facts asserted in the memorandum of appeal on affidavit and the statement of Mr. Ray at the bar are not disputed by the respondents.

4. The only point raised on behalf of the respondents is that the dismissal of a claim petition on account of absence of the claimants is not an award and the appeal under Section 110-D of the Act as such is not maintainable as the order passed is not an award against which only an appeal is maintainable.

5. The question of maintainability of an appeal under Section 110-D of the Act against an order dismissing a claim petition for default was the subject-matter of consideration of this Court in a decision reported in ILR (1981) 1 Cut 474 : (AIR 1981 Orissa 203) (Suresh Kumar Moharana v. Brundaban Bank). It was held :

'an order of dismissal of a claim petition for default is not an award so as to attract the scope of Section 110-D. I would accordingly hold that the present appeal is not maintainable.'

It was further held in para 9 of the reporter decision at page 478 (of ILR) ; (at p. 205 of AIR) :

'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 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.'

Dismissal of a claim petition for default after the issues were framed was held in the said reported decision to be a nullity. However, no interference was made as the appeal was not maintainable.

6. In the present case, the claimants were absent. Opposite party No. 1, the owner of the vehicle causing the accident was present. The tribunal took up the inquiry. The claimants being absent to adduce any evidence and opposite party No. 1 having declined to adduce any evidence, no material was available to the Tribunal. Accordingly, it could not award any compensation to the claimants. An inquiry under Section 110-B of the Act culminates in an award. The award may be for a quantified amount of compensation or refusal to compensate a claimant. In this case, the order impugned amounts to refusal to compensate the claimants. Accordingly, the impugned order is an award and an appeal against the same is maintainable under Section 110-D of the Act.

7. On account of the vehicle going out of order on the way which was accidental in nature, the Advocate for the claimants could not reach the Tribunal in time to take steps. There was, thus, sufficient cause for the claimants for their absence. The proceeding was at a stage of hearing after the issues were framed. The Tribunal has no jurisdiction to entertain an application under Order 9, C.P.C. It is now the settled position that a Tribunal may have ancillary powers but has no inherent powers. See ILR (1971) Cut 1325 : (1972 Tax LR 1735) State of Orissa v. Member, Sales Tax Tribunal. Recalling a final order is not an ancillary power though the Tribunal can ignore its previous final order where it is a nullity. Common law right to claim compensation by a sufferer for tortious act so far as motor vehicles accidents, has not been provided under the Act. Statute has created a Tribunal for the purpose so that sufferers will not have to travel through the technicalities of theprocedure and are not to satisfy the strict rule of evidence and would get the due compensation speedily. With that end in view, Section 110-B has provided that after giving opportunity to parties, the inquiry will be conducted by the Tribunal in spite of one party not taking part in the inquiry. This benevolent provision to give benefit to the sufferer who could not take part in the inquiry is to be interpreted in a manner by which the benefit under the law is able to be enjoyed by him. As the Tribunal is not able to help the sufferer, the High Court in appeal is to examine the cause of absence of a party and give the required relief. In that view of the matter, having found that there was sufficient cause for absence of the claimants to take part in the inquiry, I set aside the final order of the Tribunal and direct it to take up the inquiry afresh. For proper inquiry all facilities are to be given to the parties.

8. In the result, the appeal is allowed. Parties are to bear their own costs in this Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //