The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.3261 of 2016 Laxmidhar Das (dead) Debi Prasad Das & others …… Petitioners -Versus- Ramakanta Rath & another ….. Opposite Parties For Petitioners : Mr. B.P. Mohanty, Advocate For Opposite Party No.1 : None For Opposite Party No.2 : Mr. G.P. Dutta, Advocate CORAM: JUSTICE SANJAY KUMAR MISHRA ------------------------------------------------------------------------------ Date of Hearing and Judgment: 15.05.2024 ------------------------------------------------------------------------------ S.K. Mishra, J. This Writ Petition has been preferred by the Petitioners, who are the Claimants before the Tribunal, challenging the order dated 23.02.2015 passed by the 3rd M.A.C.T., Puri in M.C. No.370 of 1988. Vide the said order, their petition under Order 9, Rule 9 read with Section 151 of C.P.C. to set aside the so called Nil Award was rejected on the ground that the claim application is of the year 1988 (wrongly mentioned as 1998) and the Petitioners failed to adduce any oral as well as documentary evidence. The said petition was also rejected on the ground that since the case has been disposed of with Nil Award passed by the Tribunal, the petition filed under Order 9, Rule 9 of CP.C, after a lapse of more than eight years, is not maintainable. 2.
Legal Reasoning
The brief background facts, which led to filing of the present Writ Petition, are that the Petitioners filed a claim application before the 1st M.A.C.T. Puri for getting compensation, as their son was died in a road accident on 30th September, 1987. The said case was registered as Misc. Case No.370 of 1988. Subsequently, the matter was transferred from 1st M.A.C.T., Puri to 3rd M.A.C.T., Puri and due to wrong posting in diary of the concerned Counsel; he could not take any step for which the Claims Tribunal dismissed the claim application with Nil award on 15.10.2004. Knowing so, the Petitioners (Claimants before the Court) below filed a petition under Order 9 Rule 9 C.P.C. for restoration of the Misc. Case No.370 of 1988, which was registered as M.J.C. No.04 of 2005, along with an application for condonation of delay. The Claims Tribunal dismissed the said application for restoration without applying its quasi W.P.(C) No.3261 of 2016 Page 2 of 15 judicial mind, though the same was filed after about four months and thirteen days of passing of the Nil Award i.e on 28.02.2015. 3. Being noticed, a Counter has been filed by the Opposite Party No.2, opposing to the prayer made in the Writ Petition, basically on the ground that the Claims Tribunal dismissed the case with “Nil Award” and the case was not dismissed under Rule 8 of Order 9 of C.P.C. As the Claims Tribunal passed a Nil Award, the same should have been challenged under Section 173 of the M.V. Act, 1988 by preferring an Appeal and the Writ Petition, being not maintainable, is liable to be dismissed. Apart from the same, a stand has also been taken in the Counter that the Claims Tribunal, vide order dated 23.02.2015, observed that the case was posted for argument and although no step was taken by the Petitioners, but the Counsel for the Petitioners appeared on the said date and orally prayed for an adjournment. However, the Claims Tribunal, keeping in view the fact that the case was of the year, 1988 and the Petitioners failed to adduce any oral or documentary evidence, has passed the “Nil W.P.(C) No.3261 of 2016 Page 3 of 15 Award” against which Appeal lies. Therefore, the petition filed under Order 9 Rule 9 of C.P.C. was rightly dismissed. 4.
Legal Reasoning
Heard Mr. B.P. Mohanty, learned Counsel for the Petitioners so also learned Counsel for Opposite Party No.2- Insurance Company. 5. Mr. Mohanty, learned Counsel for the Petitioner, relying on the judgment of this Court reported in 1997 ACJ 1034 (Bhagaban Mallik Vs. Nagendra Biswal & others) and drawing attention of this Court to paragraphs-6 & 8 of the said judgment submitted that as per the settled position of law, if the claim case is not summarily dismissed under Rule 5 of the Odisha Motor Vehicles (Accident Claims Tribunal) Rules, 1960, shortly, “the Rules, 1960”, it is mandatory to hold an inquiry into the claim. That apart, after issues are framed, the Claims Tribunal has no jurisdiction to dismiss the claim case for default or refuse to make an award. 6. Mr. Mohanty further submitted that though the Claims Tribunal framed issues on 18.01.1990, but instead of answering the said issues, passed an award in respect of the absentee claimant vide order dated 15.10.2004 styling the same to be a “Nil Award” despite the learned Counsel orally W.P.(C) No.3261 of 2016 Page 4 of 15 asked for time. Hence, the said order dated 15.10.2004, being an order and not an award, the Petitioners have rightly moved an application under Order 9 Rule 9 of C.P.C. which was registered as M.J.C. No.04 of 2005 and there is no scope for the Petitioners to prefer an Appeal in terms of Section 173 of the M.V. Act, 1988, as has been stated in the Counter filed by the Opposite Party No.2. 7. In response to the said submissions made by the learned Counsel for the Petitioners, learned Counsel for Opposite Party No.2-Insurnce Company submitted that the Claims Tribunal was justified to pass the Nil Award on 15.10.2004 and the Petitioners (Claimants before the Tribunal), instead of filing an application under Order 9 Rule 9 of C.P.C., should have approached this Court by preferring an Appeal in terms of Section 173 of the M.V. Act, 1988 and
Decision
the Writ Petition is not maintainable. 8. Learned Counsel for the Opposite Party No.2- Insurance Company further submitted, since there was no fault on the part of the Insurance Company, if the matter is remitted back to the Court below for fresh adjudication of the Claim Application, the Petitioners will not be entitled for any W.P.(C) No.3261 of 2016 Page 5 of 15 interest, if any award is passed in favour of the Petitioners/ Claimants. He further submitted that there being no infirmity or illegality in the impugned order dated 23.02.2015 passed in MAC No.370 of 1988, the Writ Petition deserves to be dismissed. 9. In view of the submissions made by the leaned Counsel for the parties, it would be apt to reproduce below the impugned order No.67 dated 15.10.2004, passed in M.C. No.370 of 1988. “15.10.04 today The case is put up for argument. No steps. Advocate for petitioner orally submitted for an adjournment. This is a case of 1988 and is lingering unnecessarily when the petitioner has no interest to proceed with this case. He has not yet adduced evidence either oral or documentary. No fruitful purpose would be served in lingering the case any more. Hence, nil award is passed and the case is disposed of.” (Emphasis supplied) 10. As is revealed from the L.C.R., though the application under Section 110-A of the M.V. Act was filed on 11.05.1988 before the 1st M.A.C.T., Puri, the same was W.P.(C) No.3261 of 2016 Page 6 of 15 transferred to 3rd M.A.C.T., Puri on 20th June, 1989, on which date the present Opposite Party No.2, who is also Opposite Party No.2 before the Claims Tribunal, filed its Written Statement. Thereafter, the matter got adjourned from time to time. As is revealed from the L.C.R., on 18.01.1990, the following issues were framed by the Court below vide a separate sheet. “Issues 1. Is the claim petition maintainable? 2. Did the death of Pradipta Kumar Das @ Baya on account of motor vehicle accident on 30.09.1987 at about 8.30 P.M. involving the vehicle O.A.X. 1167 Bus? 3. Was the driver of the said vehicle rash and negligent in causing accident? 4. Are the petitioners entitled to get the compensation if so, to that extent and from which O.P.? 5. To what relief?” 11. Thereafter, the matter stood adjourned from time to time and was posted to 26.09.2003 for hearing. As on the said date, the learned Counsel for the present Petitioners filed a petition for time, the Claims Tribunal rejected the time petition and closed the evidence from the side of the Petitioners and the matter stood adjourned to 19th December, W.P.(C) No.3261 of 2016 Page 7 of 15 2003 for evidence from the side of the Opposite Party. Thereafter, as no step was taken by the parties on the said date, the matter got adjourned to 16.01.2004. Again, the matter stood adjourned to 19th March, 2004 for evidence from the side of the Opposite Parties. Since the Opposite Parties did not take any step on the said date, evidence from the side of the Opposite Parties was also closed and the matter was adjourned to 17th April, 2004 for argument. However, on 17.04.2004, 07.05.2004 and 08.10.2004, learned Counsel for the Petitioners/Claimants prayed for adjournment and the matter stood adjourned to 15.10.2004. Since on the said date, no step was taken by the learned Counsel for the Petitioners and only a oral payer was made before the Claims Tribunal for adjournment, the Tribunal has passed the Nil Award, as has been extracted above. 12. Thereafter, the Petitioners filed an application under Order 9 Rule 9 of C.P.C. on 28.02.2005 i.e. almost after four months 13 days for restoration of the said claim case. However, ultimately the Claims Tribunal rejected the said petition on 23.2.2015, which has been impugned in the present Writ Petition. W.P.(C) No.3261 of 2016 Page 8 of 15 13. Admittedly, the Claims Tribunal framed issued based on the pleadings of the parties on 18.01.1990, as has been extracted above. As is further revealed from the order dated 15.10.2004, in absence of any evidence from the side of the parties, though the Claims Tribunal based on the pleadings of the parties, could have also answered issue No.4 against the present Petitioners, who are the Claimants before the Claims Tribunal, in absence of any evidence to substantiate their claim, instead of doing so, it passed an order dated 15.10.2004, which has already been extracted above. 14. In Bhagaban Mallik (supra), this Court, vide paragraph No.8 held as follows: “8. By incorporation of Rule 20, Order 9 has been made applicable. The said rule has to be read in harmony with other Rules. Rule 5 confers express power on the Tribunal to dismiss an application in a summary manner. As already indicated earlier Rule 16 deals with framing of issues. Rule 17 provides that after framing the issues the Claims Tribunal shall proceed to record evidence thereon which each party may desire to adduce. As envisaged under Rule 19 the Claims Tribunal in passing the order shall record concisely in a judgment the findings on each of the issues framed and the reasons for such finding and make an award, the justifying the amount of W.P.(C) No.3261 of 2016 Page 9 of 15 dismissed summarily compensation to be paid by the insurer and also the person or persons to whom compensation shall be paid. If an application is not it continues to reach its logical end, and the logical end is as provided for under Rule 19 of the Rules. That apart, Section 166 (old Section 110- B) casts a mandate on the Tribunal to pass an award determining the amount of compensation. Reading the Rules in juxtaposition of Section 166 of 1988 Act (110-B of the old Act) it is beamingly clear that the Tribunal has no jurisdiction to dismiss a claim petition issues have been for default after framed. But, if an award has been passed, the same can be set aside taking resort to Order 9 of the Code. We may hasten to add that in the Motor Vehicles Act the Tribunal has been created so that the parties can seek adjudication of their grievances and claim compensation for tortious act, technical fetters and procedural obstacles are not to be emphasized by the Tribunal. Because of this purpose Under Section 168 of the Act it has been mandated that the Tribunal should conduct an inquiry which, in our view, also would include an inquiry in respect of a claim of an absentee claimant. The Tribunal in all cases need not pass a Nil award. On perusal of the documents filed by the parties and causing such inquiry as it may deem fit and in the fitness of things finding out the factum of accident from the available papers and the validity of insurance coverage may pass an award as a prudent person facts and would do circumstances of the case. Statutory duty is cast on him to do so. Being the in W.P.(C) No.3261 of 2016 Page 10 of 15 it has laid that down an authority under a benevolent statute he cannot dismiss the claim petition for default when some materials can be made available. The rule making authority in its wisdom has framed rules conferring express authority on the Tribunal to dismiss a claim petition summarily at a particular stage and thereafter the requirements on the part of the Tribunal to pass an award. These rules are in consonance with the Scheme of the Act and more so with the provisions enumerated Under Section 110-B (presently section 168). In the case of Asit Kumar Mohanty, 1989 ACJ 207 (Orissa), it has been held that Order 9 of the Code is applicable at all stages. By holding is applicable at all stages, it means, even if an award is passed in absence of the claimant and instead of preferring an appeal the party can move the Tribunal taking resort to the provisions of Order 9 to set it aside. The concept of Order 9 will be applicable to a dismissal order under Rule 5 as well as to an award passed under Rule 19 if the claimant is absent. Same also is applicable for the opposite parties if the award has been passed ex parte. To read otherwise would make the Scheme of the Act and the provisions under the Rules nugatory and would defeat the stipulations made therein. We may further observe that the beneficial aspect of Order 9 has been made totally applicable to a proceeding technical under for non- impositions, prosecution and absence, has been curtailed by the provisions in the Act. This interpretation is purposive and is in harmony with the object of the Act and the Rules and we accordingly make this clarification. This the like dismissal the Rules and the Act but W.P.(C) No.3261 of 2016 Page 11 of 15 the reconcile should the judgments rendered in the case of Asit Kumar and Durga Devi Mishra, 1989 ACJ 438 (Orissa).” ratio of 15. So far as the argument advanced by the learned (Emphasis supplied) Counsel for the Insurance Company that a “Nil Award” being passed by the Claims Tribunal, the Petitioners ought to have preferred an Appeal under Section 173 of the M.V. Act,1988, in view of the reasons assigned in the foregoing paragraphs, it would be apt to refer to the judgment of this Court in Nandita Mohapatra & others vs. Salias Oram and others passed in W.P.(C) No.10670 of 2013. Paragraphs-10 & 11 of the said judgment being relevant; are extracted below. “10. Law is well settled that due to fault of the lawyer, the Party should not suffer. Admittedly, as is revealed from the Order Sheets, because of non-taking of steps by the learned Counsel for the Petitioners for issuance of notice to the Opposite Party Nos. 2 and 3, the claim application was dismissed against the said Opposite Parties. Further, despite filing Petition for time, the Court below rejected the Petitioners to adduce evidence. That apart, because of the reasons as detailed above, the Petitioner No.1 could not contact the lawyer to do the needful to expedite the disposal of the case on merit. the same debarring 11. From the pleadings so also arguments advanced by the learned W.P.(C) No.3261 of 2016 Page 12 of 15 flaw and despite Counsel for the Parting as detailed above, materials available on record and the certified copy of the entire order sheet in MAC No.314 of 2007, this Court is of the view that there is a gross filing procedural Petition for time to adduce evidence, the Court below was not justified to close the evidence from the side of the Petitioners on the very same day i.e. 14.03.2011, at around 4.30 P.M., ordering to 08.04.2011 for evidence from the said of Opposite Party No.1, though the said Opposite Party No.1(owner of the vehicle) had already been set ex parte on 08.10.2007. the matter to post award award/nil Further, this Court is of the view that the Court below was not justified to pass the impugned Order dated 27.06.2011 ordering therein to dispose of the claim application of the Petitioners without passing and an subsequently styling the said order to be a nil award. As it was an order, the Petitioners were justified to file Petition under Order 9 Rule 9, read with Section-151 of the Code to set aside the said Order dated 01.10.2010 for dismissal of the claim application against Opposite Party Nos. 2 and 3 so also the Order dated 27.06.2011, vide which the claim application of the Petitioners dropped/disposed was of. Accordingly, dated Order 27.06.2011 passed in MAC No.314 of 2007 so also Order dated 13.02.2013 passed in CMC No. 28 of 2011 are hereby set aside.” the (Emphasis supplied) W.P.(C) No.3261 of 2016 Page 13 of 15 16. In view of the above, this Court is of the view that the Petition filed under Order 9 Rule 9 of C.P.C. read with Section 151 of C.P.C. by the present Petitioners to recall the order dated 15.10.2004, as extracted above, being an order and not an award in conformity with the provisions of the law, the Tribunal was not justified to reject the said application of the Petitioners on the ground that it has passed a Nil award and the said petition has been filed after a lapse of more than eight years, though the said application was filed immediately thereafter i.e. on 28.02.2005, as is revealed from the L.C.R. 17. In view of the above, so also the settled position of law, the order dated 23.02.2015 as at Annexure-1 is hereby set aside and the matter is remitted back to the 3rd M.A.C.T., Puri to reconsider the petition filed by the Petitioners under Order 9 Rule 9 read with Section 151 C.P.C., which has been registered as M.J.C. No.04 of 2005 to set aside the order dated 15.10.2004 and proceed further in accordance with law giving opportunity to the parties to lead evidence and have their say on merit. 18. Needless to mention here that, in view of the ensuing summer vacation, both the Petitioners, who are the claimants W.P.(C) No.3261 of 2016 Page 14 of 15 before the Claims Tribunal so also the Opposite Party No.2- Insurnace Company will appear before the Tribunal on 18th June, 2024 to take further instruction. As this Court remits the matter back to the Tribunal, the Claims Tribunal is directed to issue fresh notice to the Owner-Opposite Party No.1, who is also the Opposite Party No.1 before the Tribunal and proceed thereafter as per law and conclude the said proceeding at the earliest, preferably within a period of six months from the said date. 19. Accordingly, the Writ petition is disposed of. No order as to cost. …….…..……………… S.K. MISHRA, J. High Court of Orissa, Cuttack The 15th May, 2024 /Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 21-May-2024 14:53:05 W.P.(C) No.3261 of 2016 Page 15 of 15