# Chandigarh v. Niciolletta Rohtagi & others reported in

- **Citation:** (2003) 1 ILRA 218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-21
- **Case number:** Civil Misc. Writ Petition No. 1068 of 2003
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandigarh-v-niciolletta-rohtagi-others-reported-in-39970
- **Pages:** 5

## Headnote

Motor Accident Claim Tribunal Rules
1967, Rule 206- Claim petition filed-
otherwise good for hearing- whether can
it be dismissed in default ? held- 'No' - if
dismissed - shall be treated to be filed as
on the initial date of filing.

Held-Para 10

Therefore, be unjust and unfair where a
claim, which is prima facie found to be
valid for consideration, be dismissed for
default
and
thereafter
remedy
of
restoration, or restoration of restoration
http://www.allahabadhighcourt.nic.in
1All] United India Insurance Co. Ltd. V. Addl. District & Session Judge and others 219
be dismissed on technical grounds. Even
a police report has to be treated as an
application, and that every application
filed must be inquired into and decided
by the Tribunal. In case no evidence is
forthcoming, the Tribunal may dismiss
the claim but that it cannot dismiss the
claim for default and that where it has
been so dismissed, the claim petition
may be treated to have been filed on the
date when such an application is made
as there is no provision of limitation
after deletion of sub sec. (3) of Section
168 of Motor Vehicles (amendment) Act,
1988 (Act No. 59 of 1988).
Case law referred.
1996 ACJ 1153
1989 ACJ 181
2000 (3) SCC 581

## Text

http://www.allahabadhighcourt.nic.in
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
13. There is yet other aspect of the
matter which cannot be lost sight of . In
the present case the Insurer had not
obtained the permission envisaged under
Section 170 of the Motor Vehicles Act.
The contention of the learned counsel for
the claimant- respondent is that his
application had been filed for the purpose
but had been rejected. A perusal of the
memo of appeal indicates that the Insurer
has not challenged the order denying
permission under Section 170 of the Act.
In fact there is no such grievance raised.

14. In the absence of the requisite
permission under Section 170 of the;
Motor Vehicles Act, the claim of the
Insurer- appellant against the quantum of
compensation determined by the Motor
Accident
Claims
Tribunal
is
not
sustainable in law and this aspect of the
matter stands amply clarified from the
observations
made
by
the
Hon'ble
Supreme Court in its decision in Civil
Appeal No. 4292 of 2002. National
Insurance
Co.
Ltd.
Chandigarh
vs.
Niciolletta Rohtagi & others reported in
JT 2002 (7) SC 251. The ratio of the
aforesaid
decision
stands
squarely
attracted in the circumstances of the
present case.

15. The learned counsel for the
appellant has tried to assail the findings
returned by the Motor Accident Claims
Tribunal against it but has not been able
to demonstrate that the said findings can
be taken to be suffering from any such
legal infirmity which may justify an
interference by this Court. These findings
are amply supported and warranted by the
evidence and the material brought on
record.

16. This appeal is devoid of merit
which deserves to be and is hereby
dismissed.

17. The amount of Rs.25,000/-
deposited in this Court by the appellant
under Section 173 of the Motor Vehicles
Act be remitted to the Motor Accident
Claims Tribunal concerned within one
month from the date an application is
filed by the appellant for the purpose so
that it may be adjusted against the amount
required to be deposited under this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.2.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 1068 of 2003

United India Insurance Co. Ltd.

...Petitioner
Versus
Additional District & Sessions Judge,
Muzaffarnagar and others...Respondents

Counsel for the Petitioner:
Sri Saurabh Srivastava

Counsel for the Respondents:
S.C.

Motor Accident Claim Tribunal Rules
1967, Rule 206- Claim petition filed-
otherwise good for hearing- whether can
it be dismissed in default ? held- 'No' - if
dismissed - shall be treated to be filed as
on the initial date of filing.

Held-Para 10

Therefore, be unjust and unfair where a
claim, which is prima facie found to be
valid for consideration, be dismissed for
default
and
thereafter
remedy
of
restoration, or restoration of restoration
http://www.allahabadhighcourt.nic.in
1All] United India Insurance Co. Ltd. V. Addl. District & Session Judge and others 219
be dismissed on technical grounds. Even
a police report has to be treated as an
application, and that every application
filed must be inquired into and decided
by the Tribunal. In case no evidence is
forthcoming, the Tribunal may dismiss
the claim but that it cannot dismiss the
claim for default and that where it has
been so dismissed, the claim petition
may be treated to have been filed on the
date when such an application is made
as there is no provision of limitation
after deletion of sub sec. (3) of Section
168 of Motor Vehicles (amendment) Act,
1988 (Act No. 59 of 1988).
Case law referred.
1996 ACJ 1153
1989 ACJ 181
2000 (3) SCC 581

(Delivered by Hon'ble Sunil Ambwani, J.)

Heard counsel for petitioner.

1. The Motor Accident Claims
Tribunal /9th Additional District Judge,
Muzaffarnagar has by its order dated
28.10.2002, allowed application filed by
claimant respondent no. 2 Tej Pal Singh
under order 9 Rule 4 read with Section
151 CPC for recalling order dated
19.12.2000 in Misc. Case No. 12 of 1998
for restoration of claim petition, which
was dismissed in default on 19.12.1997,
and has restored Misc. Case No. 12 of
1998 to its original number. The said
order
dated
28.10.2002,
is
under
challenge in this writ petition.

2. Sri Saurabh Srivastava, learned
counsel for petitioner has relied upon a
decision of Division Bench of this Court
in Nanhi Bai and others v. Motor
Accidents Claims Tribunal, Banda and
others (1996 ACJ 1153) holding that all
the provisions, of Code of Civil Procedure
have not been made applicable before the
Tribunal and that only the provisions ,
specified under Rule 21` of UP Motor
Accidents Claims Tribunal Rules, 1967,
are applicable. Neither Order 9 Rule 9 nor
section 151 CP.C. has been made
applicable
to
the
proceedings
for
restoration of application dismissed in
default. According to the Division Bench,
the provisions appear to have been
deliberately excluded from application
and that it is a case of casus omissus.

3. The aforesaid decision was
rendered in respect of claim filed under
section 110 A of Motor Vehicles Act,
1939 and in interpretation of Rule 21 of
U.P. Motor Accidents claims Tribunal
Rules, 1967 made under the Act, which
was amended in 1988 and a new Act,
namely, Motor Vehicles Act, 1988 (59 of
1988) was enacted making substantial and
comprehensive changes with regard to the
accident claims. Whereas Section 140
provides for ' no fault' liability, section
163 provided for a Scheme for payment
of compensation in case of ' hit and run'
motor accidents. Section 163-A provided
for award of claims Tribunal. The
limitation of six months provided in sub
section 3 of section 166 of Motor
Vehicles Act, 1988 and the power of
Tribunal to condone the delay upto the
expiry of twelve months was deleted by
Motor Vehicles (Amendment) Act, 1994.
A new set of rules were framed in the
name of Motor Vehicles Rules, 1998
regulating procedures to the Claims
Tribunal. Rule 221 is pari material to Rule
221 of 1967 and provides as follows :

"221. Code of Civil Procedure to
apply in certain cases- The following
provisions of the First Schedule to the
Code of Civil Procedure, 1908 shall so far
as may be , apply to proceedings before
the claims Tribunal, namely, Rules 9 to
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220 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
13 and 15 to 30 of Order V, Order IX,
Rules 3 to 10 of Order XIII, Rule 2 to 21
of Order XVI, Order XVII, and Rules 1 to
3 of Order XXIII."

4. The rules are framed for carrying
out the object and purpose of the Act.
Since the Act has been amended by taking
away limitation for filing claims, a claim
petition which is not rejected at the first
hearing cannot be dismissed for default.

5. Section 168 of Motor Vehicles
Act, 1988 provides that on receipt of an
application for compensation made under
Section 166, the Claims Tribunal shall,
after giving notice of the application to
the insurer and after giving the parties
(including the insurer) an opportunity of
being heard, hold an inquiry into the
claim or, as the case may be, each of the
claims and, subject to the provisions of
Section
162
may
make
an
award
determining the amount of compensation
which appears to it to be just and
specifying the person or persons to whom
compensation shall be paid and in making
the award 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
Section 158 (6) of Motor Vehicles Act,
1988 provides that as soon as any
information
regarding
any
accident
involving death or bodily injury to any
person is recorded or report under this
section is completed by a police officer,
the officer in charge of the police station
shall forward a copy of the same within
thirty days from the date of recording of
information or, as the case may be, on
completion of such report, to the Claims
Tribunal having jurisdiction and a copy
thereof to the concerned insurer, and
where a copy is made available to the
owner, he shall also within thirty days of
receipt of such report, forward the same to
such Claims Tribunal and Insurer.

6. An information given by the
police, as aforesaid, under Sub Section (4)
of Section 166 is to be treated as a claim
petition. After the application has been
made or information, as aforesaid, has
been received, the Tribunal may examine
the
application
and
dismiss
the
application summarily, if for reasons to be
recorded, it is of the opinion that there are
no sufficient grounds for proceeding there
with. Rule 207 provides that if the
application is not dismissed under Rule
206, the Claims Tribunal shall send to the
owner of the motor vehicle involved in
the accident and its insurer, a copy of the
application together with a notice of the
date on which it will hear the application,
and shall call upon the parties to produce
on that date any evidence which they may
like to produce. Rule 208 (2) provides that
where the claim is contested, the Claims
Tribunal, with a view to elucidating
matters in controversy between the
parties, examine orally such of the parties
to the claim proceeding as it deems fit and
shall
reduce
the
substance
of
the
examination, if any in writing. Issues may
be framed under Rule 209 and witnesses
may be summoned where the application
is made. The Tribunal shall make a brief
memorandum of the substance of what is
deposed and such memorandum shall be
written and signed by the Claims Tribunal
and shall form part of the record. The
medical evidence may be taken down
word for word. The Claims Tribunal has
been given the power for local inspection
and inspection of vehicle under Rules 213
and 214. The powers to examine any
person likely to be able to give
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1All] United India Insurance Co. Ltd. V. Addl. District & Session Judge and others 221
information relating to the injury, have
been provided under Rule 215. The
adjournment of hearing is provided under
Rule 216, for the reasons to be recorded,
on the application of a party.

7. The aforesaid rules show that the
Claims Tribunal has to decide the
application by holding an inquiry. A
claim petition, if it has not been dismissed
under Rule 206, cannot be dismissed for
default. If the claimant does not appear on
the date fixed, the Tribunal shall proceed
to decide the claim. If evidence has been
led or partly led, it may examine the
evidence and make an award. Where
evidence has not been led, the Tribunal
may decide matter for insufficiency of or
for
want
of
evidence,
but
having
proceeded with the matter beyond the
stage of Rule 206, it cannot dismiss it
only on the ground that on the date fixed
the claimant or claimants have failed to
appear.

8. In Stella v. Motor Accidents
Claims Tribunal (1989 ACJ 181 (Ker.)), it
was held that even in the absence of a
provision in procedural laws, power
inheres in every Tribunal, of a judicial or
quasi-judicial
character,
to
adopt
modalities
necessary
to
achieve
requirements of natural justice and fair
play and even when Order IX of the
C.P.C. is not applicable to the given facts
of a case, the Tribunal does have the
power to restore a claim petition that has
been dismissed for default by using its
inherent powers, in which Rules of 1998
or Order IX C.P.C. has been made
applicable and thus the Tribunal has
power to restore the claim petition.

9. In United India Insurance Co. Ltd.
v. Rajendra Singh and others (2000) 3
Supreme Court Cases 581), the Supreme
Court allowed the appeal, set aside the
orders of Tribunal, which held that
Tribunal does not have powers to review
its orders except to correct any error in
calculating the amounts. The Allahabad
High Court had dismissed the writ
petition stating that it is a question of fact
for which writ petition is the appropriate
remedy. The Supreme Court allowing
applications filed under Section 151, 152
and 153 CPC, praying for recall of orders
on the ground of revelations of new facts
that injuries were not suffered due to
accident, held in para 16 as follows:

"16. Therefore, we have no doubt
that the remedy to move for recalling the
order on the basis of the newly discovered
facts amounting to fraud of high degree,
cannot be foreclosed in such a situation.
No court or tribunal can be regarded as
powerless to recall its own order if it is
convinced that the order was wangled
through fraud or misrepresentation of
such a dimension as would affect the very
basis of the claim."

10. So far the question whether
restoration of restoration application is
concerned, the power may be found under
Section 151 C.P.C. and is also spelled out
of the provisions of the Act, which
provide for Motor Accidents Claims
Tribunal as a special Tribunal for
remedies which earlier lied in a action for
compensation based on Torts. The new
forum was created for speedy and
simplified remedy, of compensation to
accident victims or their dependents and
provisions for losses and expenses. New
remedies of 'no fault liability' and for 'hit
and run' cases were added to meet extraordinary
situations
for
immediate
compensation or where the negligent
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222 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
owner or driver of vehicle has not been
identified. The claimant, or dependent of
claimant is often handicapped in persuing
the remedy. It will, therefore, be unjust
and unfair where a claim, which is prima
facie found to be valid for consideration,
be dismissed for default and thereafter
remedy of restoration, or restoration of
restoration be dismissed on technical
grounds. Even a police report has to be
treated as an application, and that every
application filed must be inquired into and
decided by the Tribunal. In case no
evidence is forthcoming, the Tribunal
may dismiss the claim but that it cannot
dismiss the claim for default and that
where it has been so dismissed, the claim
petition may be treated to have been filed
on the date when such an application is
made as there is no provision of limitation
after deletion of sub sec. (3) of Section
168 of Motor Vehicles (amendment) Act,
1988 (Act No. 59 of 1988). The decision
in Nanhi Bai's case (supra) was under the
old Act and is thus not applicable to the
facts of the present case.

11. Coming to the facts of the case,
the petitioner has given reasons for
absence on 18.8.2000 that he could not
attend the hearing on account of heavy
rains. These reasons have been found to
be sufficient to recall the order. The
discretion has rightly been exercised and
thus no interference is required to be
made with the impugned order.

The writ petition is, accordingly,
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.2.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 1745 of 2002

Ajay Kumar Sinha

...Petitioner
Versus
The Life Insurance Corporation of India
and another

 ...Respondents

Counsel for the Petitioner:
Sri Suresh Singh
Sri Sanjay Sharma
Sri Ashok Khare

Counsel for the Respondents:
Sri R.G. Padia
Sri P. Padia

Constitution of India- Article 226 Service
Law- Promotion on the Post of Asstt.
Branch Manager- for 2001-2002 78 posts
vacancy notified merit list prepared, out
of
78
only
41
Candidates
joined-
remaining post lying unfilled- petitioner
below in merit list- claimed promotion
against existing vacancy- No minimum
marks
prescribed-
held
entitled
for
promotion- remaining posts are to be
fulfill
from
the
merit
list
already
prepared.

Held Para 2

The claim of the respondent that the
contingency list was required to be only
of 15 percent of the vacancies is in our
opinion without any justification. In fact
the entire remaining list is in the nature
of a waiting list of candidates who are
entitled for promotion against unfilled
vacancies. Reliance is placed by the
learned counsel for the petitioner upon
the decision of this Court in State of U.P.
vs. Ravindra Nath Rai 1999(1) LBSER