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Mohammad Yousuf Wani and ors. Vs. Abdul Rehman Gujri and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Reference No. Nil of 1979 and Civil First Appeal No. 2 of 1977
Judge
ActsMotor Vehicles Act, 1939 - Section 110A, 110B and 110D; ;Jammu and Kashmir Motor Vehicles Rules, 1972 - Rule 10.25; ;Jammu and Kashmir Code of Civil Procedure (CPC) , 1977 Smvt. - Order 9, Rules 8 and 9 - Order 43, Rule 1
AppellantMohammad Yousuf Wani and ors.
RespondentAbdul Rehman Gujri and ors.
Appellant Advocate M.A. Nehvi, Adv.
Respondent Advocate S.K. Chaku, Adv.
Cases ReferredG. Gopalaswami v. G. Novalgaria
Excerpt:
- mir, j. 1. this is a reference made to the full bench to determine the following question :'whether the order of the claims tribunal refusing to set aside an order dismissing the claim petition for non-appearance of the claimant is appealable ?'2. it has been urged by mr. chaku appearing for the respondents that the order of the claims tribunal dismissing the claim petition for non-appearance of the claimant is not appealable, as according to him, under section 110-d of the motor vehicles act only an award could be appealed against. his contention was that the order dismissing the claim petition for non-appearance was not an award and, therefore, no appeal would lie against such an order.3. on the other hand mr. nehvi contended that though an appeal was permitted only in case of an award.....
Judgment:

Mir, J.

1. This is a reference made to the Full Bench to determine the following question :

'Whether the order of the Claims Tribunal refusing to set aside an order dismissing the claim petition for non-appearance of the claimant is appealable ?'

2. It has been urged by Mr. Chaku appearing for the respondents that the order of the Claims Tribunal dismissing the claim petition for non-appearance of the claimant is not appealable, as according to him, under Section 110-D of the Motor Vehicles Act only an Award could be appealed against. His contention was that the order dismissing the claim petition for non-appearance was not an Award and, therefore, no appeal would lie against such an order.

3. On the other hand Mr. Nehvi contended that though an appeal was permitted only in case of an award yet the provisions of C. P. C. were applicable to the matter at hand as the rules under Motor Vehicles Act, especially Rules 10.9 and 10.25, have specifically made the provisions of the Civil P. C. applicable to the matters arising under the Act for which no specific provision had been made under the Motor Vehicles Act.

4. In my view whether the provisions of C. P. C. do or do not apply to a matter that arises under Motor Vehicles Act is not directly the point at issue in the instant matter. The question to be decided in this reference is only this much as to whether the order of the Claims' Tribunal refusing to set aside an order dismissing the claim petition for the non-appearance of the claimant is appealable or not.

5. No doubt, the expression 'award' has nowhere been specifically denned in the Motor Vehicles Act. In the ordinary sense, however, the award would mean final disposition and disposal of the matter concerned. If the petition is allowed, it is an award. If it is disallowed the same also is an award.

6. In the instant case, the Claims Tribunal has by virtue of the order passed in fact and in effect dismissed the claims petition. Obviously this was an award and therefore, could be appealed against within the period prescribed for an appeal.

7. An order dismissing the application under Section 110-A as time-barred has the effect of disallowing the compensation claimed. It has been held in AIR 1971 All 503, that the dismissal of the application was an award and appealable under Section 110-D.

'The award includes any decision by the Claims Tribunal in dealing with an application for compensation arising out of an accident.'

8. It has been held in AIR 1967 Mad 403, that an award means to adjudge, grant, judicial decision. In AIR 1977 I & K 90, a Division Bench of this Court has observed that an order rejecting a claim petition on the ground that the same was barred by limitation would be an award and appealable under Section 110-D.

9. In 1975 Acc CJ 448, the High Court of Andhra Pradesh, held that the order dismissing the application of the deceased victim of an accident was an award and was appealable.

10. From a perusal of Section 110-D of the Act, it would appear that there was nothing to indicate that the intention of the Legislature was to restrict the right of appeal only to a case in which the decision of the Claims Tribunal resulted in imposing the liability for compensation. The expression 'award' must be given wider and proper meaning. In my view the award would not only mean an order in a case in which the decision of the Claims Tribunal results in imposing a liability for compensation: but also will include a refusal to do so and also will include an order passed by the Claims Tribunal that may lead to acceptance of the claim or its refusal.

11. In the instant case the order passed by the Claims Tribunal dismissing the claims petition for non-appearance was an award by itself, and the order refusing to set aside the same also by itself was an award. In both the cases the claims petition is finally disposed of and in the result the compensation is refused. The order, therefore, was an appealable one and as such the appeal was maintainable.

12. I have considered the question on facts as well as on merits.

13. The petitioner had filed a claim under the Motor Vehicles Act. He had engaged a counsel to appear on his behalf. On a particular date when the case was called by the Tribunal neither the petitioner nor his counsel was present. It was, therefore, dismissed in default. When the petitioner came to know about it, he filed an application for setting aside the order of dismissal in default. Learned Claims Tribunal, dismissed the application saying that 'sufficient cause was not shown' for non-appearance on the due date. The learned Claims Tribunal, it appears has placed a very limited interpretation upon the expression 'sufficient and reasonable cause'. The petitioner had engaged a counsel who could not present himself before the Tribunal for one reason or the other. The application for setting aside the dismissal order could have been set aside on payment of costs, if the Tribunal so desired. In my view, expression 'sufficient cause' should be given wider interpretation which would enable the petitioner to obtain the desired results without at the same time, of course, offending the rights of others. The order of learned Claims Tribunal dismissing the application for restoration of the claims petition under the circumstance was not, in my view, justified. The order of the learned Tribunal refusing to set aside the dismissal order of the claims petition could not, therefore, be upheld. The order is as such, set aside and it is directed that the Claims Tribunal should proceed in accordance with law to determine the petition for payment of compensation.

14. The reference is accordingly answered and the civil 1st appeal filed against the order of the Motor Accidents Claims Tribunal J. & K., Srinagar, dated 25-10-1976 is allowed and disposed of accordingly. The record be returned to the learned Claims Tribunal with the direction that he shall proceed with the matter in the light of the observations made above.

Kotwal, J.

15. I have gone through the judgment prepared by my learned brother Mir J. I am afraid, I cannot agree with him that the question referred to the Full Bench has to be answered in the affirmative. True, the term 'award' has not been defined in he Motor Vehicles Act, 1939, hereinafter to be referred to as the Act, nevertheless, the key to its content and import is provided by Section 110-B of the Act which reads as under :

'110-B. Award of the Claims Tribunal.--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 enquiry into the claim and may make 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 or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.'

16. On a careful analysis of this section, it becomes clear that an award contemplated by it has four ingredients. These are:

(i) whether any compensation is at all payable to the claimant;

(ii) if so, what amount is payable which in the opinion of the Tribunal could be just;

(iii) to whom it is payable; and

(iv) who, out of the owner, the driver, and the insurer of the vehicle is liable to pay the amount and to what extent.

17. Furthermore, the term 'award' occurring in Section 110-D should be assigned the same meaning as is given to it under Section 110-B, for, it is well settled that where a word has been used in various provisions of an Act, it shall be presumed that the Legislature intended that it should convey the same meaning in each such provision. Section 110-D which deals with appeals reads as under:

'110-D. Appeals.-- (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 the appeal is less than two thousand rupees.'

18. Section 110-B no doubt postulates an enquiry with regard to the merits of the claim, which has to precede the award that finally disposes of the claim petition, one way or the other, after expressly dealing with each of the aforesaid four ingredients. The Tribunal may on such enquiry either reject or grant the petitioner's claim in toto, or grant it in part only. Mr. Chaku, however, contended that unless the Tribunal allows payment of compensation either in whole, or in part, its order cannot tantamount to an award within the meaning of Section 110-B or Section 110-D. For this, he also relied upon Sub-section (2) of Section 110-D which provides that no appeal under the section shall lie where the amount in dispute in the appeal is less than rupees two thousand. I see nothing in either of the sections that can warrant such an inference. Section 110-B no doubt speaks of determining the amount of compensation which appears to be just, but, this does not necessarily imply that to give it the flavour of an award, the order of the Tribunal must allow some compensation to its claimant. Just amount on a reasonable interpretation of the section means and includes the full amount claimed, a part of it and even nil amount. Similarly, what Subsection (2) of Section 110-D provides is that before an appeal against an award may lie, the amount in dispute in the appeal must be rupees two thousand or above. The expression 'the amount in dispute in appeal' occurring in the sub-section cannot be interpreted to mean the amount granted by virtue of the award challenged in the appeal. This can be better understood by the following illustration:

Suppose the petitioner claims a sum of rupees ten thousand by way of compensation, but the Tribunal allows a sum of rupees nine thousand only. The petitioner cannot go in appeal against the said award because the amount in dispute in his appeal will be less than rupees two thousand, though an appeal would be competent at the instance of the respondent who denies his liability to pay any compensation whatsoever, as the amount in dispute in his appeal would be rupees nine thousand. Suppose in this very case the Tribunal rejects the petitioner's claim in toto. An appeal against the said award would be competent at his instance as in this case the amount in dispute would be rupees ten thousand. There is ample authority for this view. (B. Govindarajulu Chetty v. M.L.A. Govindaraja Mudaliar, AIR 1966 Mad 332, Vidya Wati v. Himachal Govt. Transport, 1970 Acc CJ 424 (Delhi), Kongara Narayanamma v. Uppala China Simhachalam, 1975 Ace CJ 448 and Krishen Lal Trikha v. Jupiter General Insurance, AIR 1977 J & K 90).

19. But, the enquiry into the merits of the petitioner's claim contemplated by Section 110-B is one that is necessary as well as feasible. No such enquiry, for instance, would be ceeded where the opposite party straightway Ecmits the claim of the petitioner, or where the petitioner himself does not press his claim. Again, no such enquiry would be necessary where the claim petition is dismissed as barred by time. Similarly, where the claimant after filing the claim petition fails to appear and prosecute the petition, no enquiry may be possible and the Tribunal may have to finally dispose of the petition by dismissing it for default in his appearance. In each case, the order of the Tribunal finally disposing of the claim petition, even without making any enquiry into the merits of the petitioner's claim would be an award within the meaning of Section 110-B, because in all these cases the Tribunal would finally dispose of the claim petition either because there would be no need to make any such enquiry, or because such enquiry would not be feasible at all. Such an order would obviously produce the same result as would be produced by an order disposing of the claim petition after making a regular enquiry into the merits of the claim. To interpret award as an order that may be passed only after making a regular enquiry into all the aforesaid four ingredients of Section 110-B would not be possible, as it would defeat the very object of the Act, which is to make the High Court and not the Tribunal, as the final arbiter in the matter. Rule 10.25, occurring in Chapter X of the Rules made under the Act provides:

'10.25. Civil P. C. to apply in certain cases.-- In so far as these rules make no provision or make insufficient provisions the Claims Tribunal shall follow the procedure laid down in the Jammu and Kashmir Civil P. C., Smvt. 1977 (Act X of 1977) for the trial of suits.'

A Tribunal, in terms of Order 9, Rule 8 of Civil P. C. has, therefore, power to dismiss a claim petition for non-appearance of the petitioner. The petitioner can also make an application for its restoration. If sufficient cause for his non-appearance is shown by him, the Tribunal shall restore his petition, but if he fails to show it, his restoration application shall be dismissed by the Tribunal by applying the provisions of Order 9, Rule 9. An order under Order 9, Rule 9 rejecting a restoration application is no doubt appealable under Order 43, Rule 1 (c), but, right of appeal being a substantive right and not merely a procedural right, no appeal against an order of the Tribunal dismissing a restoration application would lie to the High Court in view of the specific provisions of Section 110-D, which does not provide for appeal against each and every order of the Tribunal, but; only against an award. The net result would be that the Tribunal would be made the final arbiter in such a case against the clear legislative intent manifested by Section 110-D. Viewed thus, the term award shall have to be interpreted to include even an order whereby the claim petition is dismissed by the Tribunal for non-appearance of the petitioner. Where a term is capable of two interpretations, it is well settled, the interpretation that advances the object of the legislation has to be preferred to the one that defeats it.

20. Mr. Nebvi then argued that the widest possible meaning should be given to the term award to serve the aforesaid legislative purpose and relied upon a single Bench decision of the Madras High Court in G. Gopalaswami v. G. Navalgaria, AIR 1967 Mad 403, in particular to the following observations contained therein (para 2):

'A preliminary objection was taken to the maintainability of the appeal. It was submitted that under Section 110-D an appeal is provided to a person aggrieved by an award of a claims Tribunal. It was contended that the order of the Claims Tribunal refusing to entertain the application which was filed 60 days after the date of the accident is not an award. I am unable to accept this contention, for the order of the Tribunal refusing to entertain an application puts an end to the claim and decides the application once for all against the claimant. A reading of Section 110-D does not warrant the restricted meaning that an appeal is available only against the order granting or refusing the award. The meaning of the word 'award' is 'to adjudge, grant ... ... judicialdecision'. The word award is used to include a decision by the Claims Tribunal in dealing with an application for compensation arising out of an accident. To construe the word award to include only the determination or refusal to grant any compensation may be giving a very restricted meaning. When the Tribunal decides to entertain an application after the expiry of the sixty days or refuses to entertain an application, the decision is judicial in character, and is an award. Section 110-D provides right of appeal to any person aggrieved by an award of the Claims Tribunal, and if the order refusing to excuse the delay is an award, there can be no difficulty in holding that appeal lies against such order under Section 110-D.'

Every decision is an authority on its own facts. In this case the claim petition was dismissed by the Tribunal on refusing to condone the delay in filing it. The observations in it to the effect that even an order condoing the delay would be an award was thus clearly an obiter dictum. With utmost respect to the learned Judge, an order condoning the delay cannot be given the status of an award, because it neither disposes of the claim petition finally by going into the merits of the claim, nor does it have the direct and immediate effect of bringing the proceedings in the claim petition to an end. I am in respectful agreement with the view taken in Mangat Ram v. Kamlesh, 1969 ACC CJ 123 (All) and S. Johny Saheb v. Ademma, AIR 1978 Andh Pra 447 that an order condoning delay in filing a claim petition is not an award appealable under Section 110-D. That apart, in taking away the jurisdiction of ordinary Civil Courts for trying suits for recovery of compensation arising out of motor vehicle accidents and vesting the same in the Tribunals, the Legislature clearly intended to short circuit the lengthy procedure provided for suits and provide a cheap and speedy remedy to the aggrieved. To interpret the term award so as to mean and include each and every order that may be passed by the Tribunal would surely defeat the aforesaid legislative object as it would tend to temporize the proceedings and thereby cause considerable delay in granting appropriate relief to the aggrieved party.

21. It, therefore, follows that an order of the Tribunal which finally disposes of the claim petition, one way or the other, after making an enquiry into the merits of the claim, or the direct and immediate effect whereof is to terminate proceedings in the claim petition even without going into the merits of the claim, would be an award within the meaning of Sections 110-B and 110-D. Applying this test, an order dismissing a claim petition for non-appearance of the petitioner is an award, but an order dismis sing an application for its restoration is not an award, for, by virtue of it neither the claim petition is dismissed after enquiry into the merits of the claim, nor has it the direct and immediate effect of terminating the proceedings in the claim petition even otherwise. It would no doubt indirectly justify the earlier order of the dismissal of the claim petition and thus remotely deal with the termination of proceedings in the claim petition, but its direct and immediate effect would be merely to finally dispose of the restoration application on its own merits, i. e. whether or not there was a sufficient cause for the petitioner's non-appearance. None of the authorities, viz., Komal Charan v. State of U. P., AIR 1971. All 503, G. Gopalaswami v. G. Navalgaria, AIR 1967 Mad 403, Kongara Narayanamma v. Uppala China Simhachalam, 1975 Acc CJ 448 (Andh Pra) and Krishen Lal Trikha v. Jupiter Gen. Insurance, AIR 1977 J & K 90, relied upon by Mir J. is direct in point In all these cases the claim petitions had been dismissed as barred by time. My answer to the question referred to the Full Bench would be, therefore, in the negative.

22. Mr. Nehvi then asked me to treat this appeal as a revision. The whole case not having been referred to the Full Bench, as erroneously inferred by Mir J. on the interpretation of the order of reference, and the question whether or not a revision against the impugned order is competent also not having been referred to the Bench, I refrain from expressing any opinion on it. It would be, however, open to the appellant to set his plea before the Bench to which this appeal may now be assigned for its final disposal.

Farooqi, Acting C.J.

23. I have had the advantage of going through the judgments prepared by Kotwal, J. and Mir J. The short question before us is whether the order of the Accidents Claims Tribunal, refusing to set aside an order dismissing the claim petition for default of appearance of the claimant, amounts to an award and is appealable under Section 110-D of the Motor Vehicles Act, providing that any person aggrieved by an award of the Claim Tribunal may prefer an appeal to the High Court, (hereinafter referred to as 'the Act'). Mir J. has held that the order amounts to an award and is appealable. Kotwal J. has, however expressed a contrary view and held that the order does not amount to an award and as such, it is not appealable. I am inclined to agree with the view expressed by Kotwal J., but I have my own reasons for it. The term 'award' has nowhere been defined in the Act In order to appreciate and determine the characteristics of an award, it will be necessary to read certain provisions of the Act and the rules made thereunder. Sections 110-A and 110-B read as under:

'110-A. Application for compensation.

(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made-

(a) by the person who has sustained the injury; or

(b) where death has resulted from the accident, by all or any of the legal representatives of the deceased, or,

(c) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. (2) Every application under Sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed.

(3) No application for compensation under this section shall be entertained unless it is made within six months of the occurrence of the accident:

Provided that the Claims Tribunal may entertain the application after the expiry ofthe said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. 110-B. Award of the Claims Tribunal. 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 enquiry into the claim and may make 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, or owner, or driver of the vehicle involved in the accident or by all or any of them, as the case may be.'

Rules 10-6 to 10-25 provide as follows:

'10-6. Procedure regarding compensation arising out of accidents.

(1) An application for compensation arising out of accidents of the nature specified in Sub-section (1) of Section 110 by persons specified in Sub-section (1) of Section 110-A made to the Motor Accidents Claims Tribunal having jurisdiction over the area in which the accident occurred shall be in Form Comp. A. and shall contain the particulars specified in that form.

(2) Every such application shall be sent to the Tribunal or to the Chairman in case the Tribunal of more than one member by registered post or may be presented to such, member of the staff of the Tribunal as the Tribunal or as the case may be, the Chairman may authorise for the purposes and if so sent or presented, shall unless the Tribunal or Chairman otherwise directs, be made in duplicate and shall be signed by the applicant.

(2) (sic) There shall be appended to every such application a certificate which shall be signed by the applicant to the effect that the statement of facts contained in the application is to the best of his knowledge and belief true.

10-7. Fees. An application for compensation under Rule 10-6 shall be accompanied by an amount equal to one half of the ad valorem fee leviable on the amount at which the claim is valued in the application according to the scale prescribed under Schedule I to the Jammu and Kashmir Court-fees Act, Svt. 1977:

Provided that if the person making an application succeeds he shall be liable to make good the deficit if any, between the full ad valorem fee payable on the amount at which the claim is valued in the application according to the said scale and the fee already paid by him. 10-8. Expert. (1) The Claims Tribunal may for the purpose of adjudicating upon any claim for compensation, choose not more than two persons having technical or special knowledge with respect to any matter before the Tribunal for the purpose of assisting the Tribunal in the holding of the enquiry.

(2) The expert shall perform such functions as the Tribunal may direct.

(3) The remuneration, if any, to be paid to the expert shall in every case be determined by the Tribunal.

10-9. Exercise of power by Claims Tribunal. The Claims Tribunal may exercise all the powers of the Civil Court save in so far as the same are not inconsistent with the provisions of the Motor Vehicles Act, 1939, and the rules framed thereunder.

10-10. Examination of applicant. On receiving an application under Rule 10-6 the Claims Tribunal may examine the applicant upon oath, and the substance of such examination shall be reduced to writing and shall be signed by the member constituting the Tribunal or as the case may be, the Chairman.

10-11. Summary dismissal of application. The Claim Tribunal may, after considering the application and the statement if any, of the applicant, recorded under Rule 10-10, summarily dismiss the application, if for reasons to be recorded, the Tribunal is of opinion that there are not sufficient grounds for proceeding therewith.

10-12. Notice to opposite party. If the application is not dismissed under Rule 10-11 the Claims Tribunal shall send to the insurer or the owner of the motor vehicle from whom the applicant claims relief (hereinafter referred to as the opposite party) a copy of the application together with a notice of the date on which he will dispose of the application and may call upon the parties to produce upon that date of any evidence which they may wish to tender.

10-13. Appearance and examination of opposite party. (1) The opposite party may, and if so required by the Claims Tribunal shall at or before the first hearing or within such time as the Claims, Tribunal may permit, file a written statement dealing with the claim raised in the application and any such written statement shall form part of the record.

(2) If the opposite party contests the claim, the Claims Tribunal may, and if no written statement has been filed, shall, proceed to examine him upon the claim and shall reduce the result of the examination to writing.

10-14. Framing of issues. After considering any written statement and the result of any examination of the parties, the Claims Tribunal shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to him to depend.

10-15. Determination of issues. After framing the issues, the Claims Tribunal shall proceed to record evidence thereon which each party may desire to produce.

10-16. Method of recording evidence. The member constituting the Claims Tribunal or the Chairman thereof shall make a brief memorandum of the substance of the evidence of every witness as examination of the witness proceeds and such memorandum shall be written and signed by the member or the Chairman thereof with bis own hand and shall form part of the record:

Provided that, if the member or the Chairman is prevented from making such memorandum, he shall record the reason of bis inability to do so and shall cause such memorandum to be made in writing from his dictation and shall sign the same and such memorandum shall form part of the record:

Provided further that the evidence of any medical witness shall be taken down as early as may be word for word. 10-17. Local inspection. (1) The Claims Tribunal may at any time during the course of an inquiry before it, visit the site at which the accident occurred for the purpose of making a local inspection or examining any person likely to be able to give information relevant to the proceedings.

(2) Any party or the representative of any party may accompany the Claims Tribunal for a local inspection.

(3) The Claims Tribunal after making alocal inspection shall note briefly in a memorandum any facts observed and shall showthe memorandum to any party who desiresto see the same, and shall supply any partywith a copy thereof.

(4) The memorandum shall form part of the record.

10-18. Power of summary examination. (1) The Claims Tribunal during a local inspection or at any other time, save at a formal hearing of a case pending before it may examine summarily any person likely to be able to give information relating to such case whether such person has been or is to be called as a witness in the case or not, and whether any or all the parties are present or not.

(2) No oath shall be administered to a person examined under Sub-rule (1).

10-19. Diary. The Claims Tribunal shall maintain a brief diary of the proceedings on an application.

10-20. Reasons for postponement to be recorded. If the Claims Tribunal finds it impossible to dispose of an application at one hearing, it shall record the reasons which necessitate the postponement.

10-21. Judgment. The Claims Tribunal in passing orders shall record concisely in a judgment the finding on each of the issues framed and its reasons for such finding.

10-22. Summoning of witnesses. If an application is presented by any party to the proceedings for citation of witnesses, the Claims Tribunal shall on payment of such expenses and fee, if any, as it may determine, issue summons for the appearance of such witnesses, unless it considers that their appearance is not necessary for a just decision of the case.

10-23. Appearance of legal practitioner. The Claims Tribunal may in its discretion allow any party to appear before it through a legal practitioner.

10-24. Receipt for compensation. Upon payment of compensation a receipt shall be obtained by the Claims Tribunal and such receipt shall be forwarded to the insurer concerned or as the case may be, the owner of the vehicle, for purposes of record.

10-25. Civil P. C. to apply in certain cases. In so far as these rules make no provisions or make insufficient provisions the Claims Tribunal shall follow the procedure laid down in the Jammu and Kashmir Civil P. C. Smvt 1977 (Act X of 1977) for the trial of suits.'

24. On a careful consideration of these provisions, it would be clear that the award constitutes an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in an application for compensation made under Section 110-A of the Act. On this principle, an order dismissing such application for default of appearance of the applicant does not amount to an award. Equally not, an order refusing to set aside an order dismissing such application for default of appearance of the applicant. Because in either case, the order does not amount to an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the application. If that be so an order refusing to set aside an order dis-missing an application under Section 110-A of the Act for default of appearance of the applicant does not constitute an award and, as such, it is not appealable under Section 110-D of the Act.

25. For the contrary view, reliance was placed by Mr. Nehvi on a decision of the Madras High Court in G. Gopalaswami v. G. Novalgaria (AIR 1967 Mad 403). In that case, an application under Section 110-D of th; Act was dismissed as time barred by the Tribunal on refusing to condone the delay in filing the application. The High Court held that the decision amounts to an award and was appealable under Section 110-D of the Act. Clearly the decision is distinguishable in the present case inasmuch as the question in the present case is entirely different, the same being, whether an order refusing to set aside the claim petition dismissed for (non-?) appearance of the applicant amounts to an award. Needless to add that the order dismissing an application for compensation under Section 110-A of the Act, as time barred, amounts to an adjudication in regard to the matter of limitation and, on the principle stated by me above, amounts to an award. So viewed, the decision supports the stand taken by me rather than oppose it.

26. Mr. Nehvi then argued that the appeal may be treated as a revision. But, as rightly stated by Kotwal J., the argument is out of place because the Bench here is concerned with the limited question stated in the beginning and nothing more. It shall, however, be open to Mr. Nehvi to raise this point before the learned single Judge.


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