DEVARAJU V Vs. SIVAPPA

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is filed against the order dt. 11-12-1987 in I.A.No. 409/1987 passed by the Motor Accidents Claims Tribunal-cum-Addl. District Judge, Madanapalle refusing to restore I.A.No. 201/87 filed by the appellant-claimant and which was dismissed for default. The appellant-claimant has filed Original Petition in the Tribunal with a delay of 82 days and filed I.A.No. 201/87 praying the Courts to condone the delay. No appeal has been preferred by the claimant against I.A.No. 201 /87 dismissing the application for condonation of delay, which has resulted in dismissal of the O.P. itself.

(2.) Preliminary objection has been taken by the office at the time of admission that the C.M.A. is not maintainable under Section 110-D of the Motor Vehicles Act, as the order passed in I.A.No. 409/87 is not anaward. I up hold the objection of the office. In Babumiyan vs. Mastan, a Division Bench of this Court has held that the order refusing to condone the delay in filing the claim petition has the effect or flnalty disposing of the original petition, that such an order can, therefor , be treated as an award and hence it is appealable, while the order condoning the delay which will not have the effect of terminating the claim petition, cannot be treated as an award the therefore is not appealable.

(3.) In the instant case, the order passed in I.A.No. 201/87 on 3-11-1987 was appealable. The order passed in I.A.No. 409/87 by the Tribunal which is not under appeal cannot be said to have terminated the proceedings in OP. Termination can be only once and terminating for the second time is contradiction in terms. The effect of the order is only affirmation of the earlier order passed on 3-11-87 dismissing the I.A.No. 201/87 for default and consequently the O.P. Thus, applying the reasoning of the Division Bench, it has to be held that no appeal lies against an order refusing to set aside the order dismissing for default the petition to condone the delay in filing the OP.