BHAGABAN MALLIK Vs. NAGENDRA BISWAL

JUDGEMENT

(1.) ENTERTAINING doubt and visualising a situation which requires reconciliation and clarification of the judgment rendered in the cases of Asit Kumar Mohanty v. Second Motor Accident Claims Tribunal, Cuttack and Ors. Vol. 67 (1988) CLT 587, restricting the applicability of Order 9 of the Code of Civil Procedure (in short 'the Code') to a particular stage before the Motor Accident Claims Tribunal and Durga Devi Mishra v. Orissa State Road Transport Corporation and Anr. Vol. 67 (1989) CLT 184, wherein it has been held that Order 9 is applicable to a proceeding before the Tribunal but without indicating any restriction thereof, our learned brother P.C. Naik, J. felt the necessity for an authoritative pronouncement by a larger Bench for which we are in session of this Miscellaneous Appeal preferred under Section 173(1) of Motor Vehicles Act, 1939 (in short 'the Act').

(2.) TO appreciate the legal position a brief reference to the factual matrix is necessary. Appellant Bhagaban Mallik filed Misc. Case No. 637/87 before the Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal') claiming compensation of Rs. 31,000/- for the death of his mother. The claim petition was filed on 23.11.1987 and the notices were issued to the opposite parties. As they did not take proper steps they were set ex parte, but ultimately the order setting them ex parte having been set aside the matter was adjourned for settlement of issues and hearing. At the behest of the parties the case stood adjourned from time to time and ultimately on 31.10.1992 when none appeared for the petitioner the Tribunal closed the matter on 31.10.1992 fixing 7.11.1992 for judgment on which day the Tribunal passed a nil award and dismissed the claim petition, as there was no proof in respect of the claim advanced. The said Award has been called in question in the present Misc. Appeal. It was contended before the learned Single Judge that the Tribunal was justified in passing the nil award in view of the ratio in Asit Kumar Mohanty's case (supra). Reference was also made to the case of Durga Devi Mishra (supra) wherein it has been held that the Tribunal has jurisdiction to entertain an application under Order 9 of the Code for restoring a claim petition which was dismissed for default. It has been observed in the referring judgment that in Asit Kumar Mohanty's case though the Court has held that Order 9 is applicable to a proceeding before the Tribunal but it has also observed that once the Tribunal has framed issues the claim case cannot be dismissed for default. Observing that applicability of Order 9 of the Code has been restricted in Asit Kumar Mohanty's case and there is no such restriction in Durga Devi Mishra's case, reconciliation/clarification is thought to be necessary.

(3.) TO appreciate the whole scenario it is appropriate to refer to Section 168 of the Motor Vehicles Act, 1988 which reads as under: