Ved Lal and Others vs Miraj-Ud-Din and Others

M.L. Bhat, J.—A claim petition under the provisions of Motor Vehicles Act came to be filed before respondent No. 7 in respect of death of

one Desha Pandita daughter of petitioner No. 1 caused by the rash and negligent driving of a bus driven by respondent No. 1. The said application

came to be dismissed by respondent No. 7 in default of the petitioner on 10.4.1976.

Two applications for its restoration came to be filed, one in Urdu and the other in English on 9.7.1976 and 29.7.1976 respectively. In one

application it was stated that the applicant had gone to Delhi in connection with the treatment of his eyes, therefore, he could not attend the court of

respondent No. 7 and in the second application it was stated that if the restoration application is not allowed, the application be treated as a fresh

application under the provisions of Motor Vehicles Act for bringing a claim for compensation. Condonation of delay was also sought on the ground

of petitioner No. 1's absence from the State. Both these applications were dismissed by a single order dated 13.6.1977. This order of the Tribunal

is challenged in this writ petition and in the alternative it is prayed that the writ petition be treated as an appeal against the order of the Tribunal.

It is contended by Mr. Kaul that CPC applies to the proceedings before the Tribunal only in specific matters. Application of CPC by implication

is excluded and that the Tribunal is empowered to evolve its own procedure. The dismissal of the claim petition in default was not under the Code

of Civil Procedure, therefore, for its restoration, CPC would not be applicable. Consequently, it is contended that the Tribunal bad no power to

dismiss the claim petition for default when no effective proceedings were to be taken on the date on which the claim petition was dismissed.

Mr. R.N. Kaul has appeared for respondent Nos. 6 and 7. No one has appeared for respondent Nos. 1 to 5. I have heard the learned Counsel

for the parties and considered the matter.

It is true that the Tribunal is not a civil court and is not governed by the Code of Civil Procedure. It has its own procedure and is competent to

evolve its own procedure for trial of claim petitions. Only in specified matters such as summoning of witnesses, discovery of documents, issuance

of interrogations or commissions, some provisions of the CPC are applicable to the claim petitions tried by Claims Tribunal. By implication other

provisions of the CPC are excluded so far as the Claims Tribunal is concerned. The dismissal of the claim petition in default, therefore, cannot be

held to be under the Code of Civil Procedure. Consequently, restoration application was also not made under the provisions of the Code of Civil

Procedure.

On a general principle of law, if a Tribunal has power to do something, it has implied power to undo it. If the Tribunal could dismiss a claim

petition it could restore it. The dismissal was also not governed by any procedure, therefore, there was no difficulty in restoring the application. If

the Tribunal had power, apart from the provisions of the Code of Civil Procedure, to pass an order whereby it had shelved the proceedings it

could also pass an order whereby the proceedings could be revived. Of course, provisions of Section 5 of the Limitation Act would not be

applicable for condoning the delay before the Tribunal in respect of an application for restoration of proceedings. In fact it was not a restoration

application. It was an application for reviving the proceedings. If the Tribunal was of the opinion that it was made beyond time or after delay, it

should have considered the reasons as to why it was brought beyond time. In the application the petitioner had given a reason of his absence from

the State in connection with his ailment, that reason should have been enquired into and the petitioner asked to lead evidence. If the absence was

unintentional or accidental which was unavoidable, then it was obligatory for the Tribunal to revive the proceedings. If the cause shown in the

application was flimsy or imaginary, then the Tribunal was not bound to revive the proceedings.

The petitioner had taken abundant caution in filing two applications. Probably it was thought by the petitioner that restoration application would

not lie because the proceedings before it were not civil proceedings, therefore, he had made another application in which alternative prayer was

made that the said application be treated as a fresh claim petition and delay in filing the same be condoned. The Tribunal on technical grounds has

refused to entertain the two applications and in my opinion, the discretion exercised by the Tribunal is not only arbitrary and bad but appears to be

unjust and violative of cause for which the Accidents Claims Tribunal has been set up.

In the application it was contended by petitioner No. 1 that her daughter who was a student of P.U.C. and who had a bright future before her,

had died because of respondent No.1' s negligent and rash driving. This was a matter which was required to be considered because special

procedure was laid down in the Motor Vehicles Act for trial of such claim petitions and the Tribunal constituted under the Act was given power to

entertain a claim petition beyond the period of limitation prescribed for filing such petitions. Claim petition would not be brought before a civil court

because the jurisdiction of the civil court was barred. The Tribunal had been given discretion to entertain petitions even beyond limitation. That

discretion is to be exercised by the Tribunal judicially even though it is not a civil court. At the same time the Tribunal is dealing with the civil rights

of the parties, it has to record evidence and decide the matters on appreciation of evidence. Therefore, it was bound to act judicially and

objectively. The Tribunal cannot pass orders arbitrarily merely because it is not a civil court. Considerations applicable to a civil suit for restoration

before a civil court would not be applicable to proceedings pending in a Claims Tribunal. The dismissal of the application by the Tribunal in the first

instance does not seem to be proper. If a claim petition cannot be proceeded in the absence of the petitioner, then of course order of dismissal

could be made but the Tribunal has not stated at what stage the proceedings in the present case were when it had dismissed the petition in default.

If the respondents therein were being summoned or they were being asked to file written statement, presence of the petitioner before the Tribunal

was not necessary. The Tribunal could make a direction in the absence of the petitioner also. The petitioner's presence was only necessary when

the petitioner was to lead evidence or to get his statement recorded. If the petition was fixed for formal proceedings its dismissal for default was

not warranted. After having dismissed the same, the Tribunal has refused to restore it and made applicable CPC to the proceedings before it. As

held by this Court in Abdul Gaffar Gujree v. Mohammad Phaphoo 1985 ACJ 556 . the Tribunal is not a civil court and CPC does not apply to it,

it applied only in specific matters to the proceedings before it. Therefore, dismissal of a claim petition in default could not be made under the Code

of Civil Procedure. Consequently, its restoration also cannot be made under the Code of Civil Procedure. The Tribunal should have considered the

cause of absence of the petitioner and thereafter passed an order of revival of the proceedings if it was satisfied that the cause given by the

petitioner was genuine. On technical grounds it could not refuse to revive the proceedings and confer a benefit on the respondents without

according consideration to the cause of death of the girl and to the extent of the liability of the respondents.

The order of the Tribunal dated 13.6.1977, therefore being arbitrary, unjust and unfair, merits to be set aside. The writ petition is accordingly

allowed. The order of the Tribunal is set aside and the applications filed by the petitioner before the Tribunal for restoration of the claim petition,

dated 9.7.1976 and 29.7.1976 are allowed and the proceedings before the Claims Tribunal are directed to be revived. The Claims Tribunal,

Srinagar, shall proceed to enquire into the matter in accordance with the law and bring the proceedings to its logical conclusion. No order as to

costs.