M/s. South India Insurance Co. vs Motor Accidents Claims Tribunal, Jammu and Kashmir and others.

Bakhshi Ishwar Singh, J.—This is a petition for the issuance of a writ of certiorari for quashing the order of respondent No. 1 dated 3-6-

1972 whereby the said respondent restored a claim petition filed by respondents Nos. 2 to 8 which had been dismissed by respondent No. 1 for

default of prosecution.

The facts out of which this petition arises are that respondents Nos. 2 to 8 filed a claim petition on 16-12-1970 before the District Judge,

Jammu, who was invested with the powers of Motor Accidents Claims Tribunal under the Motor Vehicles Act (hereinafter called 'the Act'). The

claim was made with regard to death of one, Lt. Amir Chand. who was the father of respondents 2, 4 to 8 and husband of respondent No. 3 and

had died in an accident when the Vehicle in which he was travelling collided with Truck No. J. & K. 9617. The trial of the claim had started and

the issues were framed. The case was fixed for 10-7-1971 for arguments on issue No. 1. On that day the case was called and none of the parties

being present the same was dismissed for default of prosecution.

Respondent Nos. 2 to 8 filed an application for restoration of the said claim before respondent No. 1 on 12-7-1971 wherein it was alleged that

the counsel for the petitioners being busy in the High Court when the case was called could not appear and the petitioner No. 1 could not get the

conveyance in time. The absence being not deliberate it was prayed that the claim petition may be restored.

The petitioner and respondent No. 9 contested the said application firstly on the ground that the order of dismissal amounts to an award against

which an appeal lay and the application for restoration was not maintainable. Secondly there being no sufficient cause for the default of the

respondents Nos. 2 to 8 to prosecute the application the same was liable to be dismissed. They later filed two additional objections, firstly that the

Claims Tribunal was a persona designata and the claims proceedings being not a suit the provisions of the CPC do not apply. Secondly that

dismissal for default amounts to an award and appeal should have been filed and the petition for restoration was not maintainable. In fact this

objection was already in the previous objections. In the meanwhile by S. R. O. 383 dated 24-8-1971 one man State Motor Accidents Claims

Tribunal, Jammu and Kashmir was constituted and Shri Hari Singh Hirdesh was appointed its member. The High Court ordered that all the cases

pending before the District Judges Jammu and Srinagar as Claims Tribunal, should be transferred to the newly constituted State Motor Accidents

Claims Tribunal (hereinafter referred to as 'Tribunal'). This order was conveyed by the Registrar High Court vide his letter No. 10037/GS dated

26-10-1971 to the Claims Tribunal Jammu. Consequently by the order of the District Judge Jammu, as Claims Tribunal dated 11-5-1972 the

proceedings for restoration were transferred to respondent No. 1. The respondent No. 1 after hearing the parties accepted the application for

restoration on 3-6-1972 and restored the claim petition. Aggrieved by this order the petitioner has filed the present petition for which he seeks the

quashing of the above said order.

Mr. Bhagat Ram, Chowdhary appearing for the petitioner raised the following three points:-

(1) That the present Tribunal was constituted by S. R. O. 383 dated 24-8-1971 so Tribunal has no jurisdiction to hear the claims regarding the

accidents which had occurred before its constitution. Those claims could only be heard by the Civil Court.

(2) That the CPC did not apply to the proceedings before the said Tribunal and the Tribunal could not dismiss the claim petition in default. Because

the Tribunal has no power to dismiss the claim petition in default so it had no power to restore the same.

(3) The dismissal in default amounts to an award against which an appeal was provided and the application for restoration of the claim petition was

not maintainable.

The learned counsel for the parties were heard at length and the first objection of the learned counsel for the petitioner is based on

misconception. The claim petition was filed on 16-12-1970 before the District Judge Claims Tribunal Judge Jammu as it then was. After the

constitution of the State Motor Accidents Claims Tribunal for Jammu and Srinagar i. e. the Tribunal, the Proceedings were transferred to it. The

newly constituted Tribunal was the successor of the previous Tribunal. So it cannot be said that the proceedings regarding the claim which were

transferred to the file of respondent No. 1 should be deemed to be filed before it or the cause of action had arisen before the constitution of the

Tribunal although it is well settled that a Claims Tribunal cannot try a claim pertaining to the accident which had occurred before its constitution but

the said proposition is not applicable in the present case. The learned counsel for the petitioner placed his reliance on The Bihar Co-operative

Motor Vehicles Insurance Society Ltd. Vs. Rameshwar Raut and Others, and The New India Assurance Co. Ltd. and Others Vs. Smt. Shanti

Misra and Others, , and derived support for the abovesaid proposition of law. As stated earlier the enunciation of law in these two authorities is in

consonance with all other authorities which held that the Civil Courts alone have the jurisdiction in respect of such claims which arise out of

accidents having taken place before the constitution of the Tribunal. This point came up for decision before me also in Civil Transfer Appln. No. 43

of 1972 entitled Smt. Sheel Kaur v. Union of India decided on 26-5-1972 = (reported in AIR 1973 J & K. 36) in which I have also held that the

Claims Tribunal has no jurisdiction to hear such claims. But as indicated earlier this point does not arise in the present case as the claim was filed

before the Claims Tribunal as it then was and the accident having taken place after the constitution of the previous Tribunal which is succeeded by

respondent No. 1.

The second point requires a detailed consideration. There is no denying the fact that the Claims Tribunal is a persona designata and has to hold

the enquiries according to the procedure laid down in the statute under which it is created. The CPC as such is not applicable unless the same is

applied by means of the statute under which a tribunal is created or rules made under that statute. The Claims Tribunals are constituted under Sec.

110 of the Act. The procedure regarding the claims is given in Sections 110-A to 110-F of the Act. Section 110-A deals with applications for

compensation. Section 110-B provides for making an award after holding an enquiry regarding the claim. For the purposes of this petition Section

110-C of the Act is important which runs thus :-

110-C. Procedure and power of Claims Tribunals:-

(1) In holding any inquiry u/s 110-B, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary

procedure as it thinks fit.

(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of

witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed;

and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Sec. 195 and Chapter XXXV of the Code of Criminal

Procedure, 1898 (V of 1898).

(3) Subject to any rules that may be made in this behalf the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation

choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.

According to sub-section (1) of this section the enquiry of the claim has to be held according to the procedure laid down by the Tribunal itself

subject of course to any rules that may have been made under the Act in that behalf. Subsection (2) of this section empowers the Tribunal with

certain powers of a Civil Court which are given therein. This is a common ground between the parties that no rules have been framed by the State

regarding such enquiries. According to Section 111-A the State Government has the power to make rules for the purpose of carrying into effect

the provisions of Sections 110-A to 110-E of the Act but no rules having been framed under the abovesaid section, the Tribunal has to act under

sub-section (1) of Section 110-C of the Act. It has to formulate its own procedure. While formulating its own procedure the tribunal will ordinarily

be guided by analogous provisions in the Civil Procedure Code. Although the provisions of the CPC do not apply to the enquiries before the

Accidents Claims Tribunal but the principles underlying the same can be pressed into service by the Claims Tribunal. There is no denying the fact

that the rules or procedure laid down in the CPC are based on long experience and proved utility. In fact in many States e. g. Assam, Bihar,

Bengal and Delhi, rules have been framed in which some of the provisions of the CPC have been made applicable to the claims petitions. For

instance, Rule 20 framed by the Assam State specifically makes Order 9 applicable to such proceedings. The rule is quoted as under:-

Rule 20 reads as follows:-

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, O. V, Rr. 9 to 13 and 15 to 30; Order IX rule 15, Order XIII rule 15, Rules 3 to l0

Order XVI,Rules 2 to 21; Order XVII; and Order XXIII, Rules 1 to 3.

Rules 20, 238 and 8.22 framed by the States of Bihar, Bengal and Delhi respectively are similar. The learned counsel for the petitioner has relied

on AIR 1972 Gauhati 35. According to him, the Claims Tribunal had no jurisdiction to dismiss a claim application for default of appearance. His

further contention was that the order of the Tribunal being illegal there was no power to set aside the order. In my opinion this authority does not

support the learned counsel rather it supports the case of the respondent. It was held therein, relying on the rules framed under the Act that the

claim petition when issues had been framed could not be dismissed for default. As such the order of the Tribunal was quashed in revision.

In the instant case, there being no rules the procedure had to be formulated by the Tribunal itself and there was no specific bar in the Act to

dismiss a petition in default or to restore it. Whatever action was taken by the Tribunal either in dismissing the petition or in restoring the same will

be deemed to be the procedure formulated by the Tribunal. According to the procedure laid down by the Tribunal itself the petition could be

dismissed in default and on the analogy of the provisions of Order 9, Rule 9, CPC the said order could be set aside for sufficient reasons to be

shown. There is no prescribed procedure rigidly controlling the proceedings of the tribunal. So while formulating its own procedure the tribunal has

to keep in mind that it has not got wholly unfettered, absolute and arbitrary powers to do what it likes or wills. The matter truly and essentially

pertains to the domain of judicial discretion governed by the rules of reasons and justice. The Tribunal in the absence of positive authority like the

provisions of the CPC has to accept the reasons by analogy as nearly as possible to such provisions and has to come to a decision by weighing

rival considerations according to the trained judicial technique. This is also the view expressed in AIR 1964 P&H 235. In this case the tribunal had

allowed substitution of a party in accordance with the principles embodied in Order 1, Rule 10, Civil P. C. and the court held that the tribunal had

acted quite properly. The same Court in Mathra Das v. Om Parkash, (1957) 59 Pun LR 45, held that unless there was any prohibition in the rules

framed under the Act the Tribunal is free to follow any procedure which it considers expedient in the interests of justice.

From the above discussion it is clear that the Tribunal respondent No. 1 had to formulate its own procedure. Therefore the order of dismissal

passed by the tribunal and also the order of restoring the claim petition are not without jurisdiction.

The third contention of the learned counsel for the petitioner was that the dismissal in default amounted to an award and appeal lay, for which

reason the application for restoration was not maintainable. As stated earlier the principles of the CPC could be applied by the tribunal and appear

to have been applied. As the remedy of restoration of a petition dismissed in default was available under the CPC so the Tribunal on the analogy of

those provisions could entertain an application for restoration.

For the foregoing reasons, I do not find any force in all the three contentions raised by the petitioner and the petition must fail. The petition is

therefore, dismissed but under the circumstances of this case without any order as to costs.