Research › Browse › Judgment

Madhya Pradesh High Court · body

1994 DIGILAW 113 (MP)

Ramkinker v. Manoj Commercials.

1994-02-08

D.M.DHARMADHIKARI

body1994
JUDGMENT At the outset, I may state that instead of an appeal a revision under section 115 CPC should have been filed against the order which has been passed in proceedings before the Tribunal under Order 9 Rule 9 CPC. This memo of appeal, therefore, is treated as Memo of Civil Revision under section 115 CPC and is being decided as such. This is undoubtedly a hard case for the appellants. This appeal/revision is filed against the order dated 10.11.90 passed by the Motor Accident Claims Tribunal, whereby the application filed by the present appellants for restoration of their claim petition, which was dismissed in default, has been rejected. According to the learned Member of the Claims Tribunal, the appellants failed to prove the cause of delay between 24.2.88, the date on which he is said to have recovered from illness, to 12.3.88, the date on which the application under order 9 Rule 9 CPC along with an application under section 5 of the Limitation Act was filed for restoration of the claim petition. From the record of the claim petition I find that the claim petition was filed on 13.10.1987 in respect of an accident, which occurred on 14.4.87. The Court directed issuance of notices to the opposite parties. Process fee was not paid in time. On 17.11.87, on the request of the counsel for the claimants, further time was granted to pay process fee during the course of the day. On 23.12.87, the case was listed awaiting service of the notice on the respondents. Again, a request was made for time for payment of the process fee for service of notices on the respondents. On 28.1.88, the counsel for the applicants expressed his inability to pay process fee or make any further request for time for want of instructions from the applicants. On 8.12.88, the Claims Tribunal dismissed the claim petition for default in appearance of the applicants. The applicants then moved an application under section 5 of the Limitation Act seeking restoration of the claim petition. In the application, it was stated that applicant, Ramkinkar, who was 70 years of age, was ill and advised one month's bed-rest. The claims Tribunal rejected the application for restoration, holding that the delay caused after recovery from illness was not satisfactorily explained. In the application, it was stated that applicant, Ramkinkar, who was 70 years of age, was ill and advised one month's bed-rest. The claims Tribunal rejected the application for restoration, holding that the delay caused after recovery from illness was not satisfactorily explained. The learned counsel appearing for the claimants relies on the Single Bench decision of the Gwalior Bench of this Court reported in Mahila Ramdai v. Nandkumar ( AIR 1988 MP 98 ). It has been held in the above decision that the provision for payment of interim compensation, based on the principle of 'no fault liability' contained in section 92-A of the Motor Vehicles Act, 1939, casts a statutory duty on the Tribunal to pay interim compensation irrespective of the fact whether an application for the purpose was made by the claimants or not. In the instant case, as is apparent from the record, the Tribunal did not consider the question of payment of interim compensation under section 92-A of the Act. It is true that there has been default on the part of the claimants in not paying the process fee in time and not attending the hearing of the case on the dates fixed; but for that lapse on his part, the whole claim petition could not have been dismissed. So far as the rejection of the application for restoration of the claim petition under Order 9 Rule 9 CPC is concerned, the learned counsel for the Insurance Company submits that there was an unexplained long delay in making the application and the Court was justified in refusing to restore the claim petition. The provisions of the Code of Civil Procedure have been made applicable to the proceedings before the Tribunal by virtue of Rule 297 of the Motor Vehicles Rules, 1974. The proviso (a) to the said rule, however, permits the Claims Tribunal to apply the specific provisions of the Civil Procedure Code with such alteration not affecting the substance and for the purpose of facilitating the trial of the case before it. The proviso (b) of the said rule also permits the Tribunal to depart totally from the procedure contained in the Code of Civil Procedure, if it is satisfied that interest of the parties would not be seriously prejudiced by such departure. In the instant case, the Tribunal totally overlooked its obligation under section 92-A of the Act. The proviso (b) of the said rule also permits the Tribunal to depart totally from the procedure contained in the Code of Civil Procedure, if it is satisfied that interest of the parties would not be seriously prejudiced by such departure. In the instant case, the Tribunal totally overlooked its obligation under section 92-A of the Act. The Tribunal was also too strict in applying the provisions of Order 9 Rule 9 CPC and section 5 of the Limitation Act. No doubt there was default on the part of the claimants; but they had not been paid interim compensation in due time. Appellant No. 1, who is father of the deceased, was conducting the case on behalf of all the claimants, including minor children. He is an old man of 70 years of age. The above consideration should have been given due weight by the learned Member of the Tribunal in condoning the delay in making an application under Order 9 Rule 9 CPC and for restoring the claim petition. Consequently, this appeal/revision is hereby allowed. The impugned order dated 10.11.90 passed by the Claims Tribunal is hereby set aside. The application filed by the claimants for restoration of the claim petition is hereby allowed. The claim petition registered as Claim Case No. 21/87 be now taken up for trial. After issue of notices to both the parties, the Tribunal shall first consider the question of granting interim compensation under section 92-A of the Motor Vehicles Act, 1939 and then shall decide the claim petition on merits in accordance with law. In the circumstances, I leave the parties to bear their own costs. Let the parties appearing in this Court appear before the Claims Tribunal, Damoh on 2nd March, 1994. The Registry shall forthwith send back the record of the case to the Claims Tribunal well before the above date.