Puneet Kumar Jindal vs ICICI Lombard General Insurance Co. Ltd.

Pankaj Mithal, J.—This first appeal from order under Order 43, rule 1(d) of the CPC has been filed against the order dated 3.8.2009 passed by the Motor Accidents Claims Tribunal, Meerut rejecting the appellant''s application u/s 5 of the Limitation Act and consequently having the effect of dismissing the application under Order 9, rule 13 for setting aside the award passed in Manoj Kumar v. Praveen Kumar, M.A.C. No. 541 of 2006; dated 21.10.2008. Heard Mr. Shodan Singh, the learned counsel for the appellant, and Mr. Rahul Sahai, learned counsel appearing for the respondent, and with the consent of the parties the appeal is being decided finally.

The Tribunal vide its award dated 21.10.2008 awarded a sum of Rs. 4,68,000 with 6 per cent interest to the claimant. Out of the aforesaid compensation, 80 per cent was directed to be paid by Oriental Insurance Co. Ltd. and 20 per cent by the respondent, ICICI Lombard General Insurance Co. Ltd., and the said company was given right to recover the said amount from the owner of the vehicle.

The owner of the vehicle filed application under Order 9, rule 13, CPC for setting aside the aforesaid award on the ground that it was passed ex parte as there was no service of notice of the claim petition upon him. The application was accompanied by another application u/s 5 of the Limitation Act for condoning the delay, if any, in filing the application under Order 9, rule 13, Code of Civil Procedure.

The above application u/s 5 of the Limitation Act has been rejected vide the impugned order dated 3.8.2009.

At the very outset, Mr. Rahul Sahai, learned counsel for the respondent, took an objection that the appeal against the aforesaid order is not maintainable.

The learned counsel for the appellant to controvert the aforesaid objection has relied upon a decision of this court in the case of Umardeen Vs. Additional District Judge and Others, and contends that the rejection of delay condonation application amounts to rejection of application under Order 9, rule 13, CPC and against such a rejection of application an appeal lies under Order 43, rule 1(d), Code of Civil Procedure.

It is a well settled proposition of law that right of appeal is a creation of statute and no one has any inherent right to prefer an appeal, if it is not so provided under the statute.

No doubt against the rejection of an application under Order 9, rule 13, Code of Civil Procedure, an appeal is provided under rule 1(d) of Order 43, CPC and that rejection of delay condonation application results in rejection of application under Order 9, rule 13, CPC but the moot question is whether the aforesaid provisions of the CPC are applicable to the proceedings before the Tribunal.

Motor Vehicles Act, 1988 is a self-contained Code in itself. Section 169 of the Act provides that the Tribunal shall have all the powers of a civil court for the purposes of taking evidence on oath, for enforcing the attendance of witnesses, for compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed. The other purposes which have been prescribed are enumerated under rule 221 of the U.P. Motor Vehicles Rules, 1998. The said rule provides for the applicability of the provisions of Order 9, CPC but it does not provide for applying provisions of Order 43, Code of Civil Procedure. Thus, though an application under Order 9, rule 13, CPC for setting aside the ex parte award of the Tribunal is maintainable, but as Order 43, rule 1(d) is not applicable, no appeal would lie against any order passed on such an application.

In view of the above, the present appeal appears to be not maintainable.

No other provision under which the present appeal could be filed has been shown.

Section 173 of the Act provides for an appeal against the award of the Tribunal. The order rejecting or allowing an application under Order 9, rule 13, Code of Civil Procedure, 1908, would only be an interlocutory order and not an award. Therefore, it is not amenable to appeal u/s 173 of the Act.

A similar controversy has come up for consideration in relation to an order passed on application under Order 9, rule 13, CPC by the Tribunal under the Motor Vehicles Act, 1939. The provisions of the said Act were pari materia with the provisions of the present Act. Their Lordships of this court in Om Prakash and Another Vs. Smt. Rukmini Devi and Others, , while dealing with the controversy clearly held that no appeal lies under Order 43, rule 1(d), CPC against the order rejecting the application under Order 9, rule 13, CPC for setting aside ex parte award. It has further been held that Order 43, rule 1(d), CPC is not applicable to the proceedings before the Tribunal as the entire CPC do not apply to such proceedings, though by virtue of rule 221 of the Motor Vehicles Rules, 1998 provisions of Order 9, Code of Civil Procedure, have been made applicable but neither section 104 nor Order 43 has been applied.

In view of the above decision, the preliminary objection raised in this appeal is upheld. No contrary decision has been cited. In view of the aforesaid facts and circumstances, I am of the opinion that the present appeal is not maintainable and is liable to be dismissed. The appeal is accordingly dismissed but with liberty to the appellant to take recourse to any other alternative remedy as may be advised and available to him under law. The period during which this appeal had remained pending before this court would not come in way of the appellant in taking the alternative remedy, if any. The certified copies of the impugned order and the formal order shall be returned to the appellant within a period of two weeks from today after retaining the photocopies of the same.

Appeal dismissed as not maintainable.