Sri Sunil Debbarma and another. vs For Appellant(s)

: Mr. Ashim Kr. Deb, Advocate. THE HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY 09/02/2022 O R D E R This appeal is filed by the original claimants of TS(MAC) No.72 of 2020 challenging the order dated 14.12.2021 passed by the Motor Accident Claims Tribunal No.1, West Tripura, Agartala whereby their claim petition filed under Section 166 of the Motor Vehicles Act, 1988 has been dismissed by the Tribunal for non-prosecution. [2] Brief facts giving rise to the filing of the appeal are as under: On 03.12.2019, Satya Das, husband of claimant- petitioner Smt. Anima Sarkar(Das) and son of claimant, Smt. Ananta Bala Das was going to Jubatara market at Lefunga from his own house for selling vegetables. At that time he was hit by the Maruti Suzuki Omni car bearing registration No. TR-01-AR-0698 on the road. Allegedly, the vehicle was being driven in a rash and negligent manner. As a result of which driver lost control of the vehicle and hit Satya Das. Satya Das received fatal injuries from the said accident. The local people rescued him and transported him to AGMC and GBP Hospital, Agartala. In the hospital, he was declared brought dead. [3] Mother and wife of the deceased filed a claim petition under Section 166 of the M.V Act, 1988 at the Tribunal claiming compensation of a sum of Rs.53,85,000/- (rupees fifty three lakhs and eighty five thousand). [4] In the course of hearing of the case, the claimants remained absent consecutively on three appointed dates. No step was taken by their appointed counsel. The Tribunal therefore, dismissed the suit for non-prosecution viewing as under: “14.12.2021. Claimants are absent without any step. Learned Counsel for O.P. No.2 is present by filing Hazira. Perused the case record. It appears that the petitioners were directed vide order dated 22.2.2021 to submit requisite for issuing fresh notice upon O.P. No.1, but till date no requisite has been submitted. It further appears that on last 3 dates there was no step from the side of petitioners and even today also there is no step from the side of petitioners. From the conduct of the petitioners it appears that they are not at all interested to proceed with the case. Hence, the case is dismissed for non- prosecution.******” The claimants have assailed the said order of the Tribunal by filing this appeal. [5] Heard Mr. P. Saha, learned counsel appearing for the appellants. Also heard Mr. Asim Kr. Deb, learned counsel appearing for the respondent-Insurance Company. [6] Mr. Saha, learned counsel having relied on the decision of this Court in Sankar Chandra Das Vrs. Sujit Saha and another; reported in (2014) 2 Tripura Law Reports 336 and the decision dated 04.03.2020 in MAC App. No.14 of 2019 in the case of Smt. Munmun Chakraborty (Mukherjee) and another Vrs. Sri Mrinmoy Acharjee and Others contends the Tribunal committed error by dismissing the suit for non-prosecution. Counsel contends that when the original claimants were found absent in Court, the Tribunal should have either sent a notice to the claimants directing them to appear before the Tribunal or it should have decided the matter on merit instead of dismissing the suit for non-prosecution. In the case of Sankar Chandra Das(supra) while deliberating on similar issue, this Court was of the view that while deciding a claim petition under the Motor Vehicles Act the tribunals should avoid hyper technical approach to ensure that Justice is done. In the case of Smt. Munmun Chakraborty (Mukherjee)(supra) similar view was taken by this Court. Relying on the decision of the Gauhati High Court in the case of Rocke Deb Burman Vrs. Lohit Prakash Dutta and Anr. reported in (2006) 2 GLR 750 and also on the decision of Sankar Chandra Das(supra) this Court in Smt. Munmun Chakraborty (Mukherjee)(supra) held that a claim petition seeking compensation under the Motor Vehicles Act, 1988 cannot be dismissed for default, since there is no provision under the said Act empowering the Tribunal to dismiss the claim petition for default. The relevant extract of the observations of this Court in the case of Smt. Munmun Chakraborty (Mukherjee)(supra) are as under: “[5] Chapter XII of the Motor Vehicles Act, 1988 pertains to Claims Tribunals. Claims Tribunals are constituted under Section 165 of the said Act. Under Section 166, application for compensation arising out of motor vehicles accident would be filed. On such application, the Claims Tribunal would pass award under Section 168. Sub-section (1) of Section 168 provides that on receipt of an application for compensation made under Section 166, the Claims Tribunal shall after giving notice to the insurer and after giving parties an opportunity of being heard, hold an inquiry into the claim or at the case in each of the claims and subject to the provisions of Section 163 they make an award determining amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. The award of the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Paramount the Claims consideration before Tribunal, while passing award under sub-section (1) of Section 168 of the Act thus, is to award just compensation. [6] In case of Rocke Deb Burman Vs. Lohit Prakash Dutta and Anr. reported in (2006) 2 GLR 750, learned Single Judge of Gauhati High Court referred to several other decisions and observed that for default in appearances of the claimant, a claim petition seeking compensation under the Motor Vehicles Act, 1988 cannot be dismissed since there is no provision under the said Act empowering the Tribunal to dismiss the claim petition for default. The reference can also be made to a decision of Division Bench of this Court in case of Sankar Chandra Das Vs. Sujit Saha and Anr. reported in (2014) 2 TLR 336.****” [7] Having observed thus, the claim petition in case of Smt. Munmun Chakraborty (Mukherjee)(supra) was revived and sent back before the Tribunal to decide the matter in accordance with law. Mr. Saha, learned counsel therefore, urges the Court also to revive the application of the original claimants in the instant case and send back the same to the Tribunal to decide the matter according to law in terms of the law laid down by this Court in the judgments cited to supra. [8] Mr. A. K. Deb, learned counsel appearing for the respondent-Insurance Company on the other hand contends that the Tribunal exercised its power under Order IX Rule 8 CPC for dismissing the suit for non-prosecution and, therefore, the claimant-appellants should have resorted to Order IX Rule 9 CPC for getting the said order set aside by showing appropriate cause for their non appearance before the Tribunal. Only thereafter, they could have come to this Court by filing appropriate appeal in case relief was denied to them. According to Mr. Deb, learned counsel, no appeal lies against the impugned order under the Motor Vehicles Act, 1988. Learned Counsel therefore, urges the Court for dismissing the appeal. [9] Considered submissions of learned counsel representing the parties. Perused the entire record. In view of the law laid down by this Court in the judgments cited to supra. I am inclined to revive the claim petition and send back the matter to the Tribunal for disposal in accordance with law. Consequently, the impugned order stands set aside. The matter be placed before the concerned Tribunal for deciding the same on merit after providing opportunity to the parties to appear and adduce evidence. The original claimants are directed to appear before the Tribunal within 3(three) weeks from today and receive instructions from the Tribunal with regard to further proceedings of the case. For this purpose, copy of this order be supplied to the claimants or their counsel. [10] In terms of the above, the appeal stands allowed and disposed of. L.C record be sent down to the Tribunal within a week from today. JUDGE Dipankar