Sunday, 21 October 2018

Whether O 8 R 1 of CPC relating to filing of written statement is applicable to accident claim cases?

 Having heard the learned Counsel and on perusal of record, Shri V. Rodrigues is justified to contend that Order 8, Rule 1 as amended is not applicable to the claim petitions under the Motor Vehicles Act, but however, this by itself does not permit the petitioner to indefinitely not file the written statement if at all he so desired.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 614 of 2011

Decided On: 12.01.2012

Braz Dias Vs. Anthony Mascarenhas and Ors.

Hon'ble Judges/Coram:
F.M. Reis, J.

Citation: 2012(6) MHLJ 355


1. Heard Shri V. Rodrigues, learned Counsel appearing for the petitioner, Shri Harshad Arsekar, learned Counsel appearing for respondent No. 3 and Shri M.S. Joshi, learned Counsel appearing for respondent No. 4. Respondent No. 1 though served failed to remain present. Rule. Heard forthwith with the consent of the learned Counsel. Shri Harshad Arsekar, learned Counsel waives service on behalf of respondent No. 3 and Shri M.S. Joshi, learned Counsel waives service on behalf of respondent No. 4.

2. Notice was issued to the respondents for final disposal at the time of admission.

3. The above petition challenges the order passed by the Motor Accident Claims Tribunal, Margao whereby the application filed by the petitioner for extension of time to file written statement came to be rejected.

4. Shri V. Rodrigues, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that the learned Judge passed the impugned order on the assumption that Order 8, Rule 1 of C.P.C. was applicable to the claim petitions under the Motor Vehicles Act, when according to him Rule 300 of the Goa Motor Vehicles Rules, 1991 expressly does not include Order 8, Rule 1. Learned Counsel further points out that the written statement is to be filed by the respondents in accordance with Rule 292 of the said Rules. Learned Counsel further points out that immediately after the petitioner was served he remained present before the Tribunal, but however, on account of some misunderstanding with regard to the filing of the written statement the same remained to be filed up to 24/10/2008. Learned Counsel further pointed out that in view of the fact that the claim petition was stayed, the proceedings did not proceed before the Tribunal. Learned Counsel further pointed out that up to this date, the evidence has not started in the said claim petition.

5. Learned Counsel appearing for the respondents have supported the impugned orders. Shri Harshad Arsekar, learned Counsel appearing for respondent No. 3 has pointed out that there is no cause of action against him in the claim petition and, as such, his name is to be deleted.

6. Having heard the learned Counsel and on perusal of record, Shri V. Rodrigues is justified to contend that Order 8, Rule 1 as amended is not applicable to the claim petitions under the Motor Vehicles Act, but however, this by itself does not permit the petitioner to indefinitely not file the written statement if at all he so desired.

7. Rule 300 of the said Rules, 1991 provides as under:

300. Procedure to be followed by Claims Tribunal in holding enquiries - (1) The following provisions of the Code of Civil Procedure, 1908 shall, so far as may be, applied to the proceedings before every Claims Tribunal viz.

(a) Sections 28, 79 and 82;

(b) Order V, Rule 9 to 13 (both inclusive) and 15 to 30 (both inclusive); Order VI, Rules 4, 5, 7, 10, 11, 16, 17 and 18 and Order VII, Rule 10; Order VIII, Rules 2 to 5 (both inclusive) Orders IX and X, Order XI Rules 12 to 15 (both inclusive), 17 to 21 (both inclusive) and 23, Order XII, Rules 1, 2, 3-A, 4, 7 and 9; Order XIII, Rules 3 to 10 (both inclusive), Order XIV, Rules 2 and 5, Order XVI, Order XVII, Order XVIII, Rules 1 to 4 (both inclusive); and 10 to 12 (both inclusive); and 15 to 18 (both inclusive); Order XX, Rules 1 to 3 (both inclusive); 8, 11 and 20; Order XXI, Order XXII, Rules 1 to 7 (both inclusive) and 9, Order XXIII, Rules 1 to 3 (both inclusive), Order XXIV, Order XXVI, Rules 1 to 8 (both inclusive) and 15 to 18 (both inclusive); Order XXVII, Order XXVIII, Order XXIX, Order XXX Rules 1, 3 to 8 (both inclusive) and 10; Order XXXII Rules 1 to 15 (both inclusive); Order XXXVII, Rules 1 to 7 (both inclusive); and Order XXXIX, Rules 1 to 5 (both inclusive). In so far as the Act and these rules make no provision, or make insufficient provision the relevant provisions of the Code of Civil Procedure, 1908 shall so far as may be, apply to the proceedings before the claims Tribunal.

Rule 282 of the said Rules provides as under:

282. Appearance and examination of parties-

(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 examination to writing.

8. The said Rule 282 clearly provides that written statement has to be filed upon being served with the summons or within the time extended by the Tribunal. In the present case, there was no such extension granted by the Tribunal, but however, application was filed to allow the petitioner to file written statement belatedly.

9. Considering the facts and circumstances of the case and taking note that the petitioner was not represented by a lawyer at the time of his appearance before the Tribunal, I find that the written statement filed by the petitioner is to be taken on record subject to payment of costs to respondent No. 1. Shri V. Rodrigues, learned Counsel appearing for the petitioner fairly offered to pay reasonable costs to the respondent No. 1, taking note of the delay and claim put forth in the petition. Considering the delay and the amount claimed in the claim petition, I find that the petitioner should be allowed to file written statement subject to payment of costs of Rs. 10,000/-.

10. With regard to the contentions of Shri Harshad Arsekar, the learned Counsel appearing for respondent No. 3, such grievance be raised in the present petition. The said respondent is free to avail of the remedies in law if he is so entitled to obtain appropriate relief. In view of the above, I pass the following order:

ORDER

(i) The impugned order dated 9/4/2009 is quashed and set aside.

(ii) The written statement filed by the petitioner dated 24/10/2008 is ordered to be taken on record subject to payment of costs of Rs. 10,000/- to respondent No. 1 within two weeks.

(iii) Rule is disposed of in the above terms.


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