ANAND PAL Vs. MOTOR ACCIDENT CLAIMS TRIBUNAL

JUDGEMENT

(1.) By means of the present writ petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 23.2.1996, Annexure-1 to the writ petition, passed by the Motor Accidents Claims Tribunal/VII Additional District Judge, Ghaziabad in Misc. Case No. 346 of 1994, arising out of M.A.C.T. Case No. 193 of 1986. The relevant facts leading to the filing of present writ petition are as hereunder: That the Motor Accidents Claims Tribunal, Ghaziabad, which shall hereinafter be referred to as 'the Tribunal', passed an ex parte order on 13.11.1992 in M.A.C.T. Case No. 193 of 1986. The petitioners' case is that they were never served with any notice from the Tribunal, nor in fact they have any knowledge of the proceedings pending before the Tribunal and as such they could not put in appearance and the proceedings before the Tribunal resulted into the ex parte award, referred to above. The petitioners further contended that it is for the first time on 15.7.1994 when execution proceedings started and notices were issued, the Amin of concerned court had gone to the petitioners to collect the money awarded under the award dated 13.11.1992 only then the petitioners came to know with regard to the ex parte award dated 13.11.1992. Petitioners, therefore, immediately coming to know on 15.7.1994 filed the application 3 Ga dated 18.7.1994 for setting aside the ex parte award. This application has been rejected by the Tribunal vide impugned order dated 23.2.1996, which is under challenge.

(2.) Heard learned counsel for the parties. Learned counsel representing the respondents has argued that under the Motor Vehicles Act, 1988, there is no provision conferring power to the Motor Accidents Claims Tribunal to review its award already awarded. The Tribunal, therefore, rejected the petitioners' application and apart from above the Tribunal has taken too technical view on the question of delay and held that the application is barred by time also. The Tribunal has said that the petitioners were served with the notices by substitute service by presumption of service. Petitioners in their affidavit filed in support of this application have categorically stated which, as stated above, has not been accepted taking too technical view. So far as the condonation of the delay is concerned, suffice it to say that the court should approach with a liberal view so that justice may be done between the parties. The second contention on behalf of petitioners' counsel is that the Tribunal having been passed the award, has no power to recall or review its award as there is no provision under the Motor Vehicles Act, 1988 and the Code of Civil Procedure is not applicable, is perverse in view of the fact that the present proceeding has arisen before coming into force the aforesaid Act of 1988. Under the old Act, i.e., Motor Vehicles Act, 1939, rules have been framed known as U.P. Motor Accidents Claims Tribunal Rules, 1967. For a ready reference rule 21 of the aforesaid Rules of 1967 is being quoted below:

(3.) Rule 21, referred to above, clearly provides that the provisions of rules 9 to 13 and rules 15 to 30 of Order 5 of Code of Civil Procedure has been made applicable with regard to the proceedings of motor accident claim. Learned counsel appearing on behalf of the respondents stated that with the repeal of old Act, by 1988 Act nothing under repealed Act survived and, therefore, the Tribunal has rightly dismissed the petitioners' application. The repealing Act that is the present Motor Vehicles Act, 1988 contained the provisions with regard to the repeal and savings, that is section 217 (4), which reads as under: