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Suresh Kumar Moharana and ors. Vs. Brundaban Barik and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 125 to 127 of 1980
Judge
Reported inAIR1981Ori203; 52(1981)CLT181; [1983]54CompCas264(Orissa)
ActsMotor Vehicles Act, 1939 - Sections 110B and 110D; Orissa Motor Vehicles (Accidents Claim Tribunals) Rules, 1960 - Rules 16, 17 and 19
AppellantSuresh Kumar Moharana and ors.
RespondentBrundaban Barik and anr.
Appellant AdvocateR.N. Mohanty, Adv.
Respondent AdvocateA.K. Mohanty, Adv.
DispositionAppeal dismissed
Cases ReferredSamsul Huda v. London and Lancashire Insurance Co. Ltd.
Excerpt:
.....of rule 24. it clearly comes into conflict with sub-section (4) of section 33 and in the event of repugnancy between the substantive provisions of the act and rule it is the rule, which must give way to the provisions of the act. ' it is to be noted in this connection that rules 5 to 19 of the assam motor accidents claims tribunals) rules, 1960 correspond to rules 5 to 19 of the orissa motor vehicles (accidents claims tribunals) rules, 1960. 13. considering the provisions of the act and the rules and relying upon the decisions referred to above, i am clearly of the opinion that the impugned order is without jurisdiction and hence it is a nullity......is that the provisions of section 110-d confer a right of appeal only against an award of the claims tribunal and if there is no award no appeal can lie.counsel for the petitioner has, on the other hand, contended that the impugned order is without jurisdiction and is non-existent in the eye of law. the argument is that after the issues are framed the tribunal must hold an inquiry into the claim and there is no scope for dismissing the claim petition for default.4. section 110-d of the motor vehicles act, 1939, provides as follows:'section 110-d: (1) subject to the provisions of sub-section (2), any person aggrieved by an award of a claims tribunal may, within ninety days from the date of the award, prefer an appeal to the high court. provided that the high court may entertain the.....
Judgment:

P.K. Mohanti, J.

1. These three appeals have been heard together and will be disposed of by this common judgment.

2. On 20-2-1079 while a truck loaded with boulders was coming from Naulpur towards Chandikhole, it met with an accident on the public road. Four labourers who were travelling by the truck sustained injuries as a result of the accident. They filed four separate claim petitions under Section 110-A of the Motor Vehicles Act, 1939, which were registered as Misc. Cases Nos. 41, 42, 43 and 44 of 1979. After the claim petitions were admitted, notices were issued to the owner and the insurer of the vehicle. The owner did not enter contest. The Insurance Company filed its written statement and issues were settled. Misc. Case No. 44 of 1979 was posted to 22-3-1980 while the other three Misc. Cases were posted to 5-3-1980 for hearing. On 5-3-1980 the Insurance Company filed a petition for adjournment of Misc. Cases Nos. 41, 42 & 43 of 1979 to 22-3-1980 for analogous hearing of all the four cases as they arose out of one and the same accident. The Tribunal rejected the prayer and dismissed the claim petitions in Misc. Cases Nos. 41, 42 & 43 of 1979 for default as the claimants were not ready with the hearing. Aggrieved by this order, the claimants have preferred three separate appeals under Section 110D of the Act.

3. The learned counsel appearing for the Insurance Company raised a preliminary objection that no appeal lies against the order dismissing the claim petitions for default. His contention is that the provisions of Section 110-D confer a right of appeal only against an award of the Claims Tribunal and if there is no award no appeal can lie.

Counsel for the petitioner has, on the other hand, contended that the impugned order is without jurisdiction and is non-existent in the eye of law. The argument is that after the issues are framed the Tribunal must hold an inquiry into the claim and there is no scope for dismissing the claim petition for default.

4. Section 110-D of the Motor Vehicles Act, 1939, provides as follows:

'Section 110-D: (1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court.

Provided that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in appeal is less than two thousand rupees.

5. It is manifest that only when an order of the Tribunal partakes of an award the person aggrieved thereby can prefer an appeal under Section 110-D. The Act does not define an award. Therefore, its ordinary dictionary meaning is to be taken. According to the Concise Oxford Dictionary award means 'a judicial decision'. The meaning as given in Webster's New World Dictionary is 'a decision as by Judges'. The Chambers Dictionary gives the meaning as 'judgment'. Thus, an awardj would comprehend a decision of the Tribunal. An enquiry into the claim as provided by Section 110-B culminates in an award. In dismissing a claim petition for default of the claimant no inquiry is held and no decision is arrived at bv the Tribunal. Therefore 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.

6. The next question for consideration is whether the Tribunal has jurisdiction to dismiss a claim petition for default without holding an inquiry as contemplated under Section 110-B of the Motor Vehicles Act.

7. Section 110-B provides as fallows:

'On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and 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 the insurer.'

8. In exercise of the powers under Section 111-A of the Act, the State Government have made rules which are called the Orissa Motor Vehicles (Accidents Claims Tribunals) Rules, 1960. According to Rule 20 of the said Rules, the provisions of Order 9, C. P. C. shall, so far as may be, apply to proceedings before the Claims Tribunal. But neither the Act nor the Rules provide that after the issues are framed the Claims Tribunal may dismiss a claim petition for default of the claimant. Rule 20 only lays down that the provisions of Order 9, C. P. C. may apply in so far as they may be made applicable. The issues are framed under Rule 16. Rule 17 provides that after framing the issues, the Claims Tribunal shall proceed to record evidence thereon which each party may desire to produce. According to Rule 19 the Claims Tribunal shall record concisely in a judgment the findings on each of the issues framed and the reasons for such finding 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. Thus, it will be seen that under the scheme of the Act and the Rules the Claims Tribunal must hold an inquiry to adjudicate upon the claim for compensation and make an award determining the amount of compensation.

9. 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 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. I am fortified in this view by the decision of a Division Bench of the Gauhati High Court in the case of Samsul Huda v. London and Lancashire Insurance Co. Ltd., AIR 1972 Gauhati 35, and the decision of their Lordships of the Supreme Court in the case of Commissioner of Income-tax v. Chenniappa Mudaliar, AIR 1969 SC 1068. In the Supreme Court Case their Lordships interpreted Section 33 (4) of the Indian Income-tax Act, 1922 and declared Rule 24 of the Appellate Tribunal Rules, 1946 ultra vires the Section 33 (4). Section 33 (4) of the Indian Income-tax Act, 1922 runs as follows:--

'The appellate Tribunal may after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it deems fit, and shall communicate any such orders to the assessee and to the Commissioner.''

10. Rule 24 of the Appellate Tribunal Rules, as amended, is in the following terms:

'Where on the day fixed for hearing or any other day to which the having may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may dismiss for default.'

11. After considering the provisions of Section 33 (4) and Rule 24, their Lordships held as follows:

'Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly comes into conflict with Sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and Rule it is the Rule, which must give way to the provisions of the Act.'

12. In the Gauhati case after the issues were framed the case was fixed for hearing on 30th June, 1969. On that date, the claimant prayed for an adjournment, but the prayer was rejected and the case was dismissed for default.

He filed a petition under Order 9, Rule 9, C. P. C. read with Section 151, C. P. C. for setting aside the order of dismissal which was also dismissed for default. Aggrieved by this order, the claimant preferred an appeal and also filed a writ application under Articles 226 and 227 of the Constitution. Dealing with the writ application and construing the provisions of the Assam Motor (Accidents Claims Tribunals) Rules, 1960 and Section 110-B of the Act, the Division Bench held as follows (at p. 39):--

'In the instant case no doubt Rule 20 of the Assam Motor (Accidents Claims Tribunals) Rules is not challenged as ultra vires Section 110-B of the Motor Vehicles Act. But it must be remembered that Rule 20 does not lay down that after the issues are framed in the case in accordance with Rule 16, the Claims Tribunal may dismiss the application for compensation for default of either party. Rule 20 generally lays down that these provisions of Order 9 of the Civil Procedure Code may be applicable in so far as they may be made applicable. Rule 20 does not provide that after framing of issues under Rule 16 an application may be dismissed for default without complying with Rules 17 and 19. ...............under Rule 5 there may be a case of summary dismissal of an application but if the application 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 give its findings thereon in its judgment as provided by Rules 17 and 19. In other words the Claims Tribunal must hold the enquiry into the claim and there is no scope for dismissal of the claim for default at this stage.'

It is to be noted in this connection that Rules 5 to 19 of the Assam Motor Accidents Claims Tribunals) Rules, 1960 correspond to Rules 5 to 19 of the Orissa Motor Vehicles (Accidents Claims Tribunals) Rules, 1960.

13. Considering the provisions of the Act and the Rules and relying upon the decisions referred to above, I am clearly of the opinion that the impugned order is without jurisdiction and hence it is a nullity. But it cannot be interfered with in this appeal in view of my earlier finding that no appeal lies against an order dismissing a claim petition for default. It is, however, open to the Tribunal to ignore the impugned order and proceed with the case from the stage at which it was dismissed for default.

14. In the result, the appeal is dismissed on the ground of non-maintainability, but in the circumstances without any order as to costs.


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