NANDA LAL KEDIA Vs. JASWANT SINGH

JUDGEMENT

(1.) BY short-circuiting the process of trial more often than not the Tribunals cause great harm to the parties. It has become a common practice to nip in the bud the proceedings arising out of motor accident compensation cases before the Tribunal by adopting shortcut methods of dismissal of the actions without taking care to dispense the deliberate and benignant justice to the victims of motor accidents.

(2.) THE Appellant-Claimant filed his claim petition before the learned Tribunal, took all necessary steps to serve notices on the Opposite Parties, the owner-driver of the truck as well as the insurer M/s. National Insurance Co. Ltd., Nowgong, Assam. He paid the postal charges for summoning the Opposite Parties. The processes were sent by registered post to the opposite parties. On 4-4-1981 Opposite Party No. 2 the Insurance Company appeared and prayed for time to file written statement. However, the service report on opposite party No. 1 was that the addressee was "not known" to the postal peon. Learned Tribunal posted the case on 3-8-1981 and passed the following order: Fixing 3-6-1981 let opposite party No. 1 be called and on that date the Insurance Company and Opposite Party No. 1 shall file written statement. (Emphasis added) It shows that learned Tribunal took upon itself the obligation to serve notice which is in conformity with the provisions of Rule 6 of the Assam Motor Accidents Claims Tribunal Rules, 1960, for short, "the Rules". On 3-6-1981, opposite party No. 2 filed written statement. Learned Tribunal directed the petitioner to take steps within 10 days for serving notice on opposite party No. 1 and fixed 6-7-1981. Another connected matter was tagged with the case which was to come up on that date. On 6-7-1981 which was fixed for appearance of opposite party No. 1 and not for hearing, the claimant was absent and no steps had been taken by him to summon Opposite Party No. 1. So, learned Tribunal dismissed the claim case. One thing for sure is that in the instant case Opposite Party No. 2 appeared and asserted that they were liable to pay compensation only to the extent prescribed under Section 96 of the Motor Vehicles Act, 1940. It contested the claim on various grounds. The claim case was dismissed, therefore, it was a case of "no award", that is, an award granting no compensation. Against this award the claimant has preferred this appeal.

(3.) BE that as it may, we find that the learned Tribunal has acted beyond its jurisdiction in dismissing the case of the petitioner when the insurer, Opposite Party No. 2, appeared in Court, submitted its written statement, and, thus the case could not have been dismissed insofar as it was concerned. Under Rule 20 of "the Rules" the provisions of Order 5, Rule 9 to 13, 15 to 30, Order 13, Rule 21, Order 16, Order 17, and Order 23, Rule 1 to 3 are made applicable as far as practicable. In our opinion the provisions of the Orders and Rules of the Civil Procedure Code are not to be applied strictly but they may be used only for disciplined disposal of cases. However, let us turn to the provisions of Order 9 to find out whether the learned Tribunal could dismiss the entire case of the claimant when Opposite Party No. 2 had filed written statement. This is not rule in Order 9 which empowers the Court to dismiss the case against Opposite Party No. 2. We find that Order 9, Rule 2 provides for dismissal of suit when summons are not served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges and on no other count. In the instant case no court-fee or postal charge is required to be paid for summoning the opposite party. Even assuming that it was the obligation of the plaintiff to pay the court-fee and postal charges there is no order, general or specific by learned Tribunal directing the claimant to pay court-fee or postal charges and, as such, no penalty of dismissal of the case could have been imposed under Order 9, Rule 2 of the Code. Order 9, Rule 5 lays down that when after a summons has been issued to the defendant, or to one of the several defendants, and returned unserved, the plaintiff fails, for a period of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant. Therefore, the dismissal of the case against Opposite Party No. 2 is not envisaged in Order 9, Rule 5 of the Code.