Saturday, 13 May 2017

Whether motor accident claim petition can be dismissed in default after framing of issues?

The subject-matter of dispute is no more res integra. A
Division Bench of this Court, speaking through Justice Dipak Mishra
(as he then was), in the case of Bhagaban Mallik-Vrs.-Nagendra
Biswal and another 1996(II) OLR 298 in paragraph 8 of the report
held thus:-
“ 8. By incorporation of Rule 20, Order 9 has been
made applicable. The said rule has to be read in harmony
with other Rules. Rule 5 confers express power on the
Tribunal to dismiss an application in a summary manner.
As already indicated earlier Rule 16 deals with framing of
issues. Rule 17 provides that after framing the issues the
Claims Tribunal shall proceed to record evidence thereon
which each party may desire to adduce. As envisaged under
Rule 19 the Claims Tribunal in passing the order shall
record concisely in a judgement the findings on each of the
issues framed and the reasons for such finding and make an
award, justifying the amount of the compensation to be paid
by the insurer and also the person or persons to whom
compensation shall be paid. If an application is not
summarily dismissed it continues to reach its logical end,
and the logical end is as provided for under Rule 19 of the
Rules. That apart, Sec. 166 (old Sec.110-B) casts a mandate
on the Tribunal to pass an award determining the amount of
compensation. Reading the Rules in juxtaposition of Sec.
166 of 1988 Act (110-B of the old Act) it is beamingly clear
that the Tribunal has no jurisdiction to dismiss a claim
petition for default after issues have been framed. But, if an
award has been passed, the same can be set aside taking
resort to Order 9 of the Code (emphasis laid).
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.6360 of 2006

Naliniprava Behera 
 V
Executive Engineer,
E.H.T., Keonjhar & another 
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH

 Date of judgment: 28.06.2016.
Citation: 2017(1) ALLMR(JOURNAL)101

Dr. A.K.Rath, J This petition challenges the order dated 07.04.2006
passed by the learned Ist M.A.C.T., Keonjhar in C.M.A. No. 07 of
2006 arising out of Claim Misc. Case No. 370/1990 whereby and
whereunder the learned Tribunal rejected the application filed by the
claimant-petitioner for restoration of the claim application.
2. For the death of one Kangali Charan Behera in a motor
vehicle accident, the petitioner-daughter filed an application for
compensation under Section 166 of the Motor Vehicle Act before the
learned Motor Accident Claims Tribunal, Keonjhar. The claim
application was dismissed for default on 16.01.2006. Thereafter, the
application for restoration under Order 9 Rule 9 of C.P.C. read with
Section 5 of the Limitation Act was filed before the learned Tribunal. 2
By order dated 07.04.2006, learned Tribunal dismissed the
application for restoration.
3. Heard Mr. Rabi Raj Jaiswal, learned Advocate for the
petitioner and Mr. Pranab Kumar Pasayat, learned Advocate for
opposite party no.2.
4. The sole question that hinges for consideration is whether
an application for compensation under Section 166 of the Motor
Vehicles Act can be dismissed for default.
5. The subject-matter of dispute is no more res integra. A
Division Bench of this Court, speaking through Justice Dipak Mishra
(as he then was), in the case of Bhagaban Mallik-Vrs.-Nagendra
Biswal and another 1996(II) OLR 298 in paragraph 8 of the report
held thus:-
“ 8. By incorporation of Rule 20, Order 9 has been
made applicable. The said rule has to be read in harmony
with other Rules. Rule 5 confers express power on the
Tribunal to dismiss an application in a summary manner.
As already indicated earlier Rule 16 deals with framing of
issues. Rule 17 provides that after framing the issues the
Claims Tribunal shall proceed to record evidence thereon
which each party may desire to adduce. As envisaged under
Rule 19 the Claims Tribunal in passing the order shall
record concisely in a judgement the findings on each of the
issues framed and the reasons for such finding and make an
award, justifying the amount of the compensation to be paid
by the insurer and also the person or persons to whom
compensation shall be paid. If an application is not
summarily dismissed it continues to reach its logical end,
and the logical end is as provided for under Rule 19 of the
Rules. That apart, Sec. 166 (old Sec.110-B) casts a mandate
on the Tribunal to pass an award determining the amount of
compensation. Reading the Rules in juxtaposition of Sec.
166 of 1988 Act (110-B of the old Act) it is beamingly clear
that the Tribunal has no jurisdiction to dismiss a claim
petition for default after issues have been framed. But, if an
award has been passed, the same can be set aside taking
resort to Order 9 of the Code (emphasis laid).
xxx xxx xxx”.
6. The learned tribunal travelled beyond its jurisdiction in
dismissing the claim application for default.3
7. In view of the authoritative pronouncement of this Court,
the order dated 16.01.2006 as well as the order dated 07.04.2006
passed by the learned Ist M.A.C.T., Keonjhar in C.M.A. No. 07 of
2006 arising out of Claim Misc. Case No. 370/1990 are quashed.
The claim application is restored to file. The learned Tribunal is
directed to conclude the case by end of September, 2016.
The petition is allowed. No costs.

………………………..
 DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 28th June, 2016/Puspanjali
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