KANTA DEVI Vs. INDRA

JUDGEMENT

(1.) By way of instant application, applicant/ appellant has sought permission to withdraw the appeal with liberty to file appropriate claim petition before appropriate forum and has further prayed for exclusion of time, during which the claim petition remained pending before learned Tribunal and the instant appeal remained pending before this Court for the purposes of limitation.

(2.) It is averred that applicant/appellant instead of filing claim petition before the Employees' Compensation Commissioner under the provision of Employee's Compensation Act, 1923 (for short '1923 Act'), had filed the claim petition under Sec. 166 of the Motor Vehicles Act, 1988 (for short '1988 Act') before the Motor Accidents Claims Tribunal. It has been further averred that the applicant/appellant intends to withdraw the present appeal at this stage with permission to file appropriate claim petition before appropriate forum. As per the applicant/ appellant, no loss or prejudice will be caused to other-side in case the application is allowed.

(3.) Respondent No.2-insurer has opposed the prayer. In reply filed by respondent No.2, it has been alleged that the application is neither signed by the applicant/appellant nor its contents have been sworn on affidavit. As per respondent, the application is not formal in nature. It has further been submitted that the provision of Order XXIII of Code of Civil Procedure, 1908 (for short 'the Code') are applicable to the proceedings under 1988 Act. As such, the applicant/ appellant without showing compliance with the provisions of Order XXIII of the Code, cannot make such a prayer by invoking Sec. 151 of the Code. It has also been contended that the applicant/appellant had consciously exercised the option to file claim petition under Sec. 166 of the 1988 Act at initial stage, whereas the applicant/appellant at that stage could have filed the petition under the 1923 Act, as per the provisions of Sec. 167 of 1988 Act.