Laloo Bharti vs Anwar

Binod Kumar Roy and R.K. Mahajan, JJ.—The memorandum of this appeal, filed u/s 173 of the Motor Vehicles Act, 1988, shows that it is against the judgment dated 25.10.1991 and decree dated 15.11.1991 of the VII Additional District Judge, Allahabad, acting as Motor Accidents Claims Tribunal, passed in Misc. Claim Petition No. 59 of 1990 and that two-fold reliefs have been claimed: (i) to set aside the order dated 25.10.1991 by which the appellant''s restoration application was rejected, and (ii) Misc. Claim Petition No. 59 of 1990 be sent back to the Tribunal for trial and assessment of compensation. The decree dated 15.11.1991 shows that it is a formal order drawn up in Misc. Case No. 60 of 1990 arising out of Misc. Case No. 17 of 1990 and Claim Petition No. 222 of 1987 stating rejection of the appellant''s application (3/C) only.

The appellant filed claim petition under Sections 110-A and 92-A of Motor Vehicles Act on 23.10.1987 before the Tribunal which was registered as Claim Petition No. 222 of 1987. After notice the opposite party appeared and made repeated prayers for filing W.S. By order dated 23.5.1989, as no W.S. was filed, the Tribunal passed an order to proceed ex pane and fixed 8.8.1989 for ex pane hearing. After several dates on 16.1.1990, as on repeated calls, no one responded on behalf of the claimant, the claim petition was dismissed. On 14.2.1990 the claimant filed an application for restoration of the claim petition under Order IX, Rule 9 of the CPC for the reasons stated in his affidavit accompanying the application. This application was registered as Misc. Case No. 17 of 1990. This misc. case was adjourned on several dates on which the petitioner absented and ultimately was dismissed for default by order dated 1.12.1990. This order has neither been assailed nor has the appellant attached its copy along with this appeal. Even the learned Counsel for the appellant has not addressed us to show as to what wrong was committed in dismissing his case for default. On 10.12.1990 the appellant filed an application for restoration of the Misc. Case No. 17 of 1990. This was registered as Misc. Case No. 60 of 1990. It was also adjourned from time to time as the appellant was absent. From perusal of the impugned order, it appears that Misc. Case No. 60 of 1990 filed for reviving Misc. Case No. 17 of 1990 which was heard on 25.10.1991 and rejected by the impugned order dated 25.10.1991 on the ground that the claim of the appellant that he had sustained sprain and for that reason could not appear has not been supported by any medical certificate and, thus no good cause has been proved.

The memo of the appeal, as already stated, shows that it has been filed for remitting back Misc. Claim Petition No. 59 of 1990, whereas no such case was even filed by the appellant.

Earlier Mr. Jaiswal, learned Counsel for the appellant, was asked to satisfy us as to how an appeal lies u/s 173 of the Act against an order refusing to restore back the misc. case which was dismissed for default on 1.12.1990? His contention was that an appeal lies.

Today he placed reliance on two decisions (i) British India Genl. Ins. Co. Ltd. v. Chanbi Shaikh Abdul Kadar 1968 ACJ 322 (JC, Goa, Daman and Diu) and (ii) Nishemani Swain v. Maheswar Sahu 1985 ACJ 577 (Orissa).

Section 173 of the Motor Vehicles Act, 1988 reads thus:

Appeals.-(1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court:

Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees.

On a bare perusal of the aforementioned provisions we are of the view that no appeal lies before this Court u/s 173 of the Act against an order rejecting a prayer made for restoration of the claim dismissed for default. In Shravan Pal Singh Vs. Pooran Nath Goswami, , preferred u/s 30 of the Workmen''s Compensation Act against an order rejecting an application filed for an ex pane order, a Division Bench of this Court (of which one of us Binod Kumar Roy, J. was a member) dismissed the appeal as not maintainable observing as follows:

A bare perusal of the aforementioned provisions leaves no manner of doubt that the legislature has not provided appeal under the aforementioned provisions against an order rejecting an application for recall. It is settled law by now through a catena of decisions that appeal and/or revision are creation of statute and no one has got an inherent right to prefer an appeal. [See AIR 1935 5 (Privy Council) ; Rangoon Botatoung Co. Ltd. v. Collector, Rangoon (1912) 39 Indian Appeal 197 (PC); Garikapatti Veeraya Vs. N. Subbiah Choudhury, ; Soorajmull Nagarmull Vs. Commissioner of Income Tax, Calcutta, ; Rami Manprasad Gordhandas and Others Vs. Gopichand Shersing Gupta and Others, ; Smt. Ganga Bai Vs. Vijay Kumar and Others, ; Special Military Estates Officer Vs. Munivenkataramiah and another, ; M. Ramnarain Private Limited and Another Vs. State Trading Corporation of India Limited, ; D.N. Taneja v. Bhajan Lal (1988) 3 SCC 26; Vijay Prakash D. Mehta and Another Vs. Collector of Customs (Preventive), Bombay, ; Darshan Singh v. Ram Pal Singh (1992) Suppl (1) SCC 191 .

We proceed to consider the first decision relied upon by Mr. Jaiswal. It was held in that decision that as the claimant was prevented by sufficient cause from making his application in time, the discretion was correctly exercised.

True it is that in the next decision Nishemani Swain v. Maheswar Sahu 1985 ACJ 577 (Orissa), a learned single Judge of the Orissa High Court had proceeded to hold, after taking a contrary view of the same High Court in Suresh Kumar Mahaparna v. Brundaban Barik 1982 ACJ 296 (Orissa), even though it was binding on him, that an order dismissing a claim petition owing to absence of the claimant and refusal of the opposite party to adduce evidence would be an award and hence appeal-able, and that the Tribunal has no jurisdiction under Order IX of the CPC for recalling its previous final order. Rule 21 of U.P. Motor Accidents Claims Tribunal Rules, reads thus:

CPC to apply in certain cases.-The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order XXIII, Rules 1 to 3.

It clearly talks of the applicability of Order IX of the CPC to the proceedings before the Tribunal.

Disagreeing with the view of learned single Judge of the Orissa High Court, on whom the earlier view taken by another learned single Judge of his own High Court was binding, which agrees with our view, we further hold that the impugned order is not an award within the meaning of the Act against which an appeal can be preferred u/s 173 of the Act. We are further of the view that the decision in State of Orissa v. Member, Sales Tax Tribunal ILR (1971) Cuttack 1325, relied upon by the learned single Judge was in relation to existence of inherent powers to a Sales Tax Tribunal and was no authority for the proposition to hold that the Motor Accidents Claims Tribunal lacked inherent powers.

Our view also gets support from the following observations made by the Apex Court in Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., .

...Inherent powers are powers which are resident in all Courts.... These powers spring not from legislation but from the nature and other constitution of the Tribunals or Courts themselves so as to...secure obedience to its process and rules, protect its officers from... wrong.... This power is necessary for the ordinary administration of the Court''s business. (Emphasis supplied)

It also finds support from the ratio laid down by the Five Judges Full Bench decision of the Patna High Court in Bajrang Rai and Others Vs. Ismail Mian and Others, . We are of the considered view that if a claim petition has been dismissed for default on account of absence of the claimant, or an application filed for restoration of the claim petition dismissed for default the Claims Tribunal can resort to its inherent powers to restore back those petitions for adjudication on merits subject to the rider, namely, making out a good case for restoration/revival.

In the instant case we are handicapped to make any observation in regard to the earlier order dated 1.12.1990 as the said order has not been produced before us by the appellant nor has the appellant assailed its validity by preferring any appeal.

Consequently, we hold that this appeal is not maintainable which has been filed for remitting back Misc. C.P. No. 59 of 1990, which was not filed by the appellant. It is dismissed accordingly.