Smt. Anima Sarkar (Das) And ... vs Sri Sunil Debbarma And Another
2022 Latest Caselaw 153 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                        MAC App. No.03 of 2022

Smt. Anima Sarkar (Das) and another.
                                                    ............... Appellant(s).
                                     Vs.
Sri Sunil Debbarma and another.
                                                    ............... Respondent(s).

  For Appellant(s)         :       Mr. P. Saha, Advocate.
  For Respondent(s)        :       Mr. Ashim Kr. Deb, Advocate.

         THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

                               ORDER

09/02/2022

This appeal is filed by the original claimants of TS(MAC) No.72

of 2020 challenging the order dated 14.12.2021 passed by the Motor

Accident Claims Tribunal No.1, West Tripura, Agartala whereby their

claim petition filed under Section 166 of the Motor Vehicles Act, 1988

has been dismissed by the Tribunal for non-prosecution.

[2] Brief facts giving rise to the filing of the appeal are as

under:

On 03.12.2019, Satya Das, husband of claimant-

petitioner Smt. Anima Sarkar(Das) and son of claimant, Smt. Ananta

Bala Das was going to Jubatara market at Lefunga from his own house

for selling vegetables. At that time he was hit by the Maruti Suzuki

Omni car bearing registration No. TR-01-AR-0698 on the road.

Allegedly, the vehicle was being driven in a rash and negligent

manner. As a result of which driver lost control of the vehicle and hit

Satya Das. Satya Das received fatal injuries from the said accident.

The local people rescued him and transported him to AGMC and GBP

Hospital, Agartala. In the hospital, he was declared brought dead.

[3] Mother and wife of the deceased filed a claim petition

under Section 166 of the M.V Act, 1988 at the Tribunal claiming

compensation of a sum of Rs.53,85,000/- (rupees fifty three lakhs and

eighty five thousand).

[4] In the course of hearing of the case, the claimants

remained absent consecutively on three appointed dates. No step was

taken by their appointed counsel. The Tribunal therefore, dismissed

the suit for non-prosecution viewing as under:

"14.12.2021.

Claimants are absent without any step.

Learned Counsel for O.P. No.2 is present by filing Hazira.

Perused the case record.

It appears that the petitioners were directed vide order dated 22.2.2021 to submit requisite for issuing fresh notice upon O.P. No.1, but till date no requisite has been submitted. It further appears that on last 3 dates there was no step from the side of petitioners and even today also there is no step from the side of petitioners.

From the conduct of the petitioners it appears that they are not at all interested to proceed with the case.

                     Hence, the case      is    dismissed   for   non-
               prosecution.******"

The claimants have assailed the said order of the

Tribunal by filing this appeal.

[5] Heard Mr. P. Saha, learned counsel appearing for the

appellants. Also heard Mr. Asim Kr. Deb, learned counsel appearing for

the respondent-Insurance Company.

[6] Mr. Saha, learned counsel having relied on the decision

of this Court in Sankar Chandra Das Vrs. Sujit Saha and another;

reported in (2014) 2 Tripura Law Reports 336 and the decision

dated 04.03.2020 in MAC App. No.14 of 2019 in the case of Smt.

Munmun Chakraborty (Mukherjee) and another Vrs. Sri

Mrinmoy Acharjee and Others contends that the Tribunal

committed error by dismissing the suit for non-prosecution. Counsel

contends that when the original claimants were found absent in Court,

the Tribunal should have either sent a notice to the claimants directing

them to appear before the Tribunal or it should have decided the

matter on merit instead of dismissing the suit for non-prosecution. In

the case of Sankar Chandra Das(supra) while deliberating on similar

issue, this Court was of the view that while deciding a claim petition

under the Motor Vehicles Act the tribunals should avoid hyper technical

approach to ensure that Justice is done. In the case of Smt. Munmun

Chakraborty (Mukherjee)(supra) similar view was taken by this

Court. Relying on the decision of the Gauhati High Court in the case of

Rocke Deb Burman Vrs. Lohit Prakash Dutta and Anr. reported in

(2006) 2 GLR 750 and also on the decision of Sankar Chandra

Das(supra) this Court in Smt. Munmun Chakraborty

(Mukherjee)(supra) held that a claim petition seeking compensation

under the Motor Vehicles Act, 1988 cannot be dismissed for default,

since there is no provision under the said Act empowering the Tribunal

to dismiss the claim petition for default. The relevant extract of the

observations of this Court in the case of Smt. Munmun Chakraborty

(Mukherjee)(supra) are as under:

"[5] Chapter XII of the Motor Vehicles Act, 1988 pertains to Claims Tribunals. Claims Tribunals are constituted under Section 165 of the said Act. Under Section 166, application for compensation arising out of motor vehicles accident would be filed. On such application, the Claims Tribunal would pass award under Section 168. Sub-section (1) of Section 168 provides that on receipt of an application for compensation made under Section 166, the Claims Tribunal shall after giving notice to the insurer and after giving parties an opportunity of being heard, hold an inquiry into the claim or at the case in each of the claims and subject to the provisions of Section 163 they make an award determining amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. The award of the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Paramount consideration before the Claims Tribunal, while passing award under sub-section (1) of Section 168 of the Act thus, is to award just compensation.

[6] In case of Rocke Deb Burman Vs. Lohit Prakash Dutta and Anr. reported in (2006) 2 GLR 750, learned Single Judge of Gauhati High Court referred to several other decisions and observed that for default in appearances of the claimant, a claim petition seeking compensation under the Motor Vehicles Act, 1988 cannot be dismissed since there is no provision under the said Act empowering the Tribunal to dismiss the claim petition for default. The reference can also be made to a decision of Division Bench of this Court in case of Sankar Chandra Das Vs. Sujit Saha and Anr. reported in (2014) 2 TLR 336.****"

[7] Having observed thus, the claim petition in case of Smt.

Munmun Chakraborty (Mukherjee)(supra) was revived and sent

back before the Tribunal to decide the matter in accordance with law.

Mr. Saha, learned counsel therefore, urges the Court also to revive the

application of the original claimants in the instant case and send back

the same to the Tribunal to decide the matter according to law in

terms of the law laid down by this Court in the judgments cited to

supra.

[8] Mr. A. K. Deb, learned counsel appearing for the

respondent-Insurance Company on the other hand contends that the

Tribunal exercised its power under Order IX Rule 8 CPC for dismissing

the suit for non-prosecution and, therefore, the claimant-appellants

should have resorted to Order IX Rule 9 CPC for getting the said order

set aside by showing appropriate cause for their non appearance

before the Tribunal. Only thereafter, they could have come to this

Court by filing appropriate appeal in case relief was denied to them.

According to Mr. Deb, learned counsel, no appeal lies against the

impugned order under the Motor Vehicles Act, 1988. Learned Counsel

therefore, urges the Court for dismissing the appeal.

[9] Considered the submissions of learned counsel

representing the parties. Perused the entire record. In view of the law

laid down by this Court in the judgments cited to supra. I am inclined

to revive the claim petition and send back the matter to the Tribunal

for disposal in accordance with law. Consequently, the impugned order

stands set aside. The matter be placed before the concerned Tribunal

for deciding the same on merit after providing opportunity to the

parties to appear and adduce evidence. The original claimants are

directed to appear before the Tribunal within 3(three) weeks from

today and receive instructions from the Tribunal with regard to further

proceedings of the case. For this purpose, copy of this order be

supplied to the claimants or their counsel.

[10] In terms of the above, the appeal stands allowed and

disposed of. L.C record be sent down to the Tribunal within a week

from today.

JUDGE

Dipankar