Nuruddin Ali vs Fayez Ali Khan

Mr. N. Chaudhury, J.(Oral)—Heard Mr. A. Alam, learned counsel for the appellant, Ms. S. Roy, learned counsel for respondent No.3 and Ms. R.D. Mazumdar, learned counsel for respondent No. 4.

In this appeal under Section 173 of the Motor Vehicles Act, 1988 the claimant has challenged the judgment and order dated 08.10.2013 whereby the learned Member, MACT, Morigaon dismissed the MAC Case No. 145/2009 primarily for default. In passing the impugned order the learned Tribunal observed that the claimant failed to submits its evidence in affidavit and so claim petition stands dismissed. Such a summary dismissal of a claim proceeding in the nature of dismissal for default under Order 9, Rule 8 of the Code of Civil Procedure is never contemplated under the provision of the Motor Vehicles Act, 1988. In fact, on a number of occasions this Court had cautioned the learned Motor Accident Claim Tribunals of the State of Assam not to dismiss any proceeding for default but to decide the claim. In the event of non-production of evidence the Tribunal shall be at liberty to pass no award. In that event it becomes appealable under Section 173 of the Motor Vehicles Act. But without doing so, the learned Tribunal summarily dismissed the claim petition in shortcut method. Such an action is contrary to the law laid down in the case of Samsul Huda v. London and Lancashire Insurance Co. Ltd. and others, reported in AIR 1972 Gau 21(35). The same law was followed by this Court in the case of Binoy Kr. Banik v. New India Assurance Co., reported in 1997(3) GLT 501 as well as in the case of Rocky Dev Burman v. Lohit Prakash Dutta, reported in 2006 Supple GLT 306.

Accordingly, the impugned order stands set aside. The matter is remanded to the learned Tribunal for deciding the MAC Case on merit. The question as to admissibility of interest to the claim for the period from 08.10.2013 till the date of evidence shall be decided by the learned Tribunal after hearing both sides.