CHARAUNDA SPUN PIPE INDUSTRY v. ISHWAR DASS — 1996 DIGILAW 63 (HP)

JUDGMENT R. L. Khurana, J.-The admitted facts of the present case are that on 29-3-1984 at about 4.00 p. m. truck No. HPM-141I belonging to respondent No. 1 and being driven by respondent No. 2 while proceeding from Nerchowk to Kangu, had turned turtle at a place in between Harabagh and Jarol. In the said accident, one Indru had died, while S/Sh. Prabhu Ram, Nek Ram and Ram Dass had sustained bodily injuries. The truck at the relevant time was loaded with cement pipes and collars belonging to the petitioner-appellant Such pipes and collars were also damaged in the said accident. 2. The appellant-petitioner filed a petition under section 110-A of the Motor Vehicles Act, 1939 corresponding to section 166, Motor Vehicles Act, 1988, hereinafter referred to as the Act, claiming compensation caused to his goods, namely, cement pipes and collars. 3. The respondents while resisting the claim petition denied the rash and negligent driving on the part of respondent No. 2. It was averred that the brakes of vehicle have suddenly failed. The respondent No. 2 in order to avoid any major accident had dashed the vehicle against a hillock. They further denied if the cement pipies or collars were broken in such accident or were damaged in any manner. An objection was further raised to the effect that since the appellant-petitioner was an unregistered partnership firm, the petition was not competent in view of the provisions contained in section 69 of the Indian Partnership Act. 4. The learned Tribunal upon consideration of the material placed before it during the course of evidence by the parties, came to the conclusion that damage to the extent of Rs. 3,100 was caused to the goods of the petitioner-appellant, namely, the cement pipes and the collars and that the petitioner-appellant was entitled to compensation/damages to that extent. The claim of the petitioner-appellant was, however, rejected and the petitioner-appellant was non-suited on the ground that being an unregistered partnership firm, the claim petition was bad under section 69 of the Partnership Act. 5. Feeling aggrieved by and being dis-satisfied with the award dated 20-9-1985 of the learned Tribunal, the petitioner-appellant has come up in appeal before this Court assailing the findings of the learned Tribunal, inter alia, on the ground that the petition for compensation was maintainable and that the provisions of section 69, Indian Partnership Act were not applicable. 6. 5. Feeling aggrieved by and being dis-satisfied with the award dated 20-9-1985 of the learned Tribunal, the petitioner-appellant has come up in appeal before this Court assailing the findings of the learned Tribunal, inter alia, on the ground that the petition for compensation was maintainable and that the provisions of section 69, Indian Partnership Act were not applicable. 6. Section 69 of the Partnership Act reads :— "Effect of non-registration.—(i) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect :— (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm ; or (b) the powers of an official assignee, receiver or Court under the Presidency Towns Insolvency Act, 1909 (3 of 1909), or the Provincial Insolvency Act, 1920 (5 of 1920), to realise the property of an insolvent partner. (4) This section shall not apply :— (a) to firms or to partners in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which, by notification under section 56, this Chapter does not apply, or (b) to any suit or claim or set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), or, outside the Presidency the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental or arising from any such suit or claim," 7. The learned Tribunal has come to the conclusion that the petition filed by the petitioner-appellant seeking compensation for the damage caused to his goods being a suit for enforcement of a right arising from a contract could not have been filed, since, the petitioner appellant is an unregistered partnership firm. It is the admitted case of the parties that the petitioner-appellant is an unregistered partnership firm. 8. In The State of Assam v. Urmila Datta and others, 1914 ACJ 414, a question arose, whether a petition under section 110-A of the Act is a suit and the provisions of section 80, Code of Civil Procedure are applicable. it was held as under :— " ..The question, therefore, that falls for determination is whether the compensation application can be said to be a suit within the meaning of section 80 of the Civil Procedure Code, We may here look into section 4 of the Civil Procedure Code and examine whether the Civil Procedure Code is at all applicable to claims under sections 110 to IIO^F of the Act. We find that under section HOC, only certain provisions of the Civil Procedure Code have been made applicable to a proceeding before a Claims Tribunal. Where any special law or a particular procedure is provided, the provisions of the Civil . Procedure Code are to that extent excluded and as we have already stated, section 80 of the Civil Procedure Code primarily deals with institution of a suit. Where any special law or a particular procedure is provided, the provisions of the Civil . Procedure Code are to that extent excluded and as we have already stated, section 80 of the Civil Procedure Code primarily deals with institution of a suit. We are fortified in taking this view by the decision of Khairunnhsa A. K, Siddiki and others v. Municipal Corporation, Bombay and others, where their lordships have held that a Claims Tribunal is not a Court and the applications under section 110 for compensation before such Claims Tribunal are not suits and that the proceedings before these Tribunals are not governed by the statutory provisions applicable to Civil Courts We are of the opinion that section 80 of the Civil Procedure Code is not attracted to an application made under section 110-A of the Act, since such application is not a plaint on the presentation of which a suit can be held to have been instituted." 9. The learned Counsel for the respondents has contended that even if it be assumed that a petition under section 110-A of the Act is not a suit, rigour of sub-section (2) of section 69, Partnership Act, would apply, in view of the provisions contained in sub-section (3) of the said section, which provides that the provisions of sub section (!) and sub section (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, in support of his contention, the learned Counsel has placed reliance on AIR 1991 Pat 250, The Oriental Fire and General Insurance Company Ltd. v. The Union of India and 1990 (2) Sim LC 182, M/s. Surinder Mahajan v National Project Construction Corporation Ltd. and another. 10. The ratio laid down in the cases relied upon by the learned Counsel for the respondents, has no application to the facts of the present case. In the case of The Oriental Fire and General Insurance Company Ltd. v. The Union of India (supra), a suit was filed by an unregistered partnership firm against the Insurance Company for the enforcement of the liability of the Insurance Company arising out of an insurance policy in respect of a motor vehicle belonging to the firm. In the case of The Oriental Fire and General Insurance Company Ltd. v. The Union of India (supra), a suit was filed by an unregistered partnership firm against the Insurance Company for the enforcement of the liability of the Insurance Company arising out of an insurance policy in respect of a motor vehicle belonging to the firm. It was held that since the liability was being enforced under the contract by an unregistered partnership firm, the suit would be barred by virtue of section 69 (2) of the Partnership Act for want of registration of the partnership firm. 11. In Mis. Surinder Mahajan’s case (supra), the court was dealing with the question whether the application made under sections 8 (2) and 13 (b) of the Arbitration Act for reference of the dispute to the Arbitrator made by an unregistered partnership firm would be hit by the provisions of section 69 (2) (3) of the Partnership Act It was held that the application under section 8 (2) of the Arbitration Act falls within the ambit of the words "other proceeding to enforce a right arising from contract" appearing in sub section (3) of section 69, Partnership Act, and, therefore, the provisions of sub-section (2) of the said Act would be attracted and an application by ad unregistered partnership firm for appointment of an Arbitrator under section 8 of the Arbitration Act would not be maintainable. 12. Assuming that the proceedings under section 110-A of the Act are "other proceeding" within the meaning of subsection (3) of section 69 Partnership Act, the question, which would, thus, arise, is whether such proceedings are for the enforcement of a right arising from a contract, so as to, attract the rigour of subjection (2) of the said section. 13. The Claims Tribunal constituted under the Act is empowered to adjudicate upon all claims for compensation in respect of accident involving the death of or bodily injury to any person or involving damages to the property of a third party, where the accident arise out of the use of a motor , vehicle. In awarding compensation in respect of such an accident, the Claims Tribunal is empowered to award compensation not only against the insurer and the owner and the driver of the motor vehicle? but also against those on account of whose negligence the accident may have been caused. The words "in respect of accident. In awarding compensation in respect of such an accident, the Claims Tribunal is empowered to award compensation not only against the insurer and the owner and the driver of the motor vehicle? but also against those on account of whose negligence the accident may have been caused. The words "in respect of accident. ........arising out of the use of the motor vehicle....... .,. " occurring in section 110 (1) of the Act are words of the widest possible amplitude, It cannot be disputed that where the death of or bodily injury is caused to the claimant or damages caused to his property in an accident arising out of the use of the motor vehicle, and, as a result of the negligence of the owner or the driver of the motor vehicle as well as of a third party, the claim so far as the owner or insurer or driver of the motor vehicle are concerned would lie before the Claims Tribunal under the Act in terms of section 110. The jurisdiction in respect of such cases has been expressly barred by virtue of section 110-F of the Act. 14. A bare reading of section 110-B of the Act would makes it clear that the claim referred to in section 110 can have reference only to the claim against the owner or the driver of the motor vehicle concerned or insurer, as the case may be. The object of the Act is to provide for a speedy and cheap remedy to the person suffering injuries/damages in accidents arising out of the use of the motor vehicles. 15. By virtue of the petition made by the petitioner-appellant, under section 110-A of the Act, petitioner appellant was not enforcing any right arising out of a contract The petitioner appellant was enforcing his right to claim compensation for the damages caused to his goods in the accident arising put of the use of the motor vehicle as a result of the rash and negligent driving on the part of respondent No. 2. Such a right was independent of any contract for carriage of goods between the petitioner-appellant and respondent No. 1, owner of the truck. 16. Such a right was independent of any contract for carriage of goods between the petitioner-appellant and respondent No. 1, owner of the truck. 16. Since the right to claim compensation under section 110-A of the Act did not arise out of a contract between the parties, the provisions of sub section (2) of section 69 of the Partnership Act would have no application to the facts of the present case. The petition filed by the petitioner-appellant was, therefore, competent. The findings of the learned Tribunal holding such a petition not to be competent and barred by section 69 (2) of the Partnership Act, are, therefore, wrong and liable to be set asid. 17. As a result, the present appeal is allowed. The findings of the learued Tribunal holding the petition to be bad by virtue of section 69 (2) of the Partnership Act are set aside, and, it is held that the petitioner-appellant is entitled to compensation of Rs. 3,100 which the respondents No. 1 to 3 are liable to pay jointly and severally. The petitioner-appellant is also entitled to interest at the rate of 6% per annum on the amount so awarded with effect from the date of the petition, that is, 6-6-1984 till the date of payment/deposit of. the amount. The respondents to pay/deposit the amount within thirty days from today. Appeal allowed.