Dismissed

Kanta Devi v. Indira Rana

Himachal Pradesh HC14 May 2024CMP/411/2024

Case brief

AI extract

What is this about?

High Court rejected an application by an appellant seeking permission to withdraw an appeal filed under the Motor Vehicles Act to file a fresh claim under the Employees' Compensation Act. The court held that the petition had no formal defect and the option exercised under the Motor Vehicles Act could not be belatedly changed.

What did the court decide?

Application for permission to withdraw appeal and file fresh claim under Employees' Compensation Act rejected.

Kanta Devi Vs Indira Rana — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMP No.411 of 2024 In FAO No.4113 of 2013 Reserved on: 07.05.2024 Date of decision: 14.05.2024 Kanta Devi & Anr. ...Applicant/Appellant. Versus Indra & Anr. ...Respondent. Coram:

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The Hon’ble Mr. Justice Satyen Vaidya, Judge . Whether approved for reporting?¹ No. For the applicant/appellant : Ms. Kanta Thakur, Advocate For respondent No.2 : Mr. Ashwani K. Sharma, Senior Advocate with Mr. Ishan Sharma, Advocate, for respondent No.2.

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Satyen Vaidya, Judge:

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By way of instant application, applicant/ appellant has sought permission to withdraw the appeal with liberty to file appropriate claim petition before appropriate forum and has further prayed for exclusion of time, during which the claim petition remained pending before learned Tribunal and the instant appeal remained pending before this Court for the purposes of limitation.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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It is averred that applicant/appellant instead of filing claim petition before the Employees’ Compensation Commissioner under the provision of Employee’s Compensation Act, 1923 (for short ‘ 1923 Act ’), had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘ 1988 Act ’) before the Motor Accidents Claims Tribunal. It has been further averred that the applicant/appellant intends to withdraw the present appeal at this stage with permission to file appropriate claim petition before appropriate forum. As per the applicant/ appellant, no loss or prejudice will be caused to other-side in case the application is allowed.

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Respondent No.2-insurer has opposed the prayer. In reply filed by respondent No.2, it has been alleged that the application is neither signed by the applicant/appellant nor its contents have been sworn on affidavit. As per respondent, the application is not formal in nature. It has further been submitted that the provision of Order XXIII of Code of Civil Procedure, 1908 (for short ‘ the Code ’) are applicable to the proceedings under 1988 Act. As such, the applicant/ appellant without showing compliance with the provisions of

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Order XXIII of the Code, cannot make such a prayer by invoking Section 151 of the Code. It has also been contended that the applicant/appellant had consciously exercised the option to file claim petition under Section 166 of the 1988 Act at initial stage, whereas the applicant/appellant at that stage could have filed the petition under the 1923 Act, as per the provisions of Section 167 of 1988 Act.

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I have heard the learned counsel for the parties and have also carefully perused the material on record.

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Rule 232 of Motor Vehicles Rules as applicable in the State of Himachal Pradesh makes the provision of Order XXIII of the Code applicable to proceedings under the 1988 Act. Order XXIII Rule 1(3) provides that where the Court is satisfied that a suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it can grant the plaintiff permission to withdraw from such suit with liberty to institute a fresh suit in respect of the subject matter of the suit.

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The applicant/appellant has failed to qualify any

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of the requirements of aforesaid provision. Neither, it a case of possibility of failure of claim on account of some formal defect, nor any other ground has been shown. Section 167 of the 1988 Act provides for option to be exercised by the claimant, either to file a petition under the provision of 1988 Act for compensation or under the 1923 Act, where the cause of action admits of such option. The applicant/appellant having exercised the option to file the claim petition under the provisions of 1988 Act, cannot be now allowed to withdraw such option and to file a claim petition under 1923 Act, that too at such a belated stage.

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Learned counsel for the applicant/appellant contended that since, the deceased was himself the driver of the vehicle involved in accident, the claim petition filed by the applicant/appellant under Section 166 of 1988 Act, had inherent formal defect. The contention so raised cannot be accepted for the reason that the claim petition under Section 166 of 1988 Act was filed by the applicant/appellant with the averments that the accident had taken on account of nonmaintenance of the vehicle by the owner. As per the

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averments made in the claim petition, the deceased driver had cautioned the owner of the vehicle regarding absence of servicing of the vehicle and possibility of break-down and it was only on the insistence of the owner that the driver had driven the vehicle. Learned Tribunal had framed a specific issue as under :-

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“Whether the deceased Pyar Chand was driver of respondent No.1 on the bus No.HP-56-2606 and he died due to the non-maintenance of the vehicle in proper order by the respondent No.1 on 19.03.2005 in an accident near Nag Naguli Temple in road accident? OPP”

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[Emphasis Supplied]

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While deciding the above issue, leaned Tribunal held that the deceased-Sh.Pyar Chand was driver of the vehicle, involved in the accident, however, the accident was held to be caused by rash and negligent driving of Sh. Pyar Chand himself. On this count, no relief except the award of Rs.50,000/- compensation on account of ‘no fault liability’ was granted in favour of the applicant/appellant. That being so, it does not lie in the mouth of applicant/appellant, now to say that the petition had inherent formal defect.

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In result, there is no merit in the application and

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the same is rejected.

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FAO No.4113 of 2013 & FAO No.4116 of 2013

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List for hearing in due course.

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14^th May, 2024 (Pardeep)

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(Satyen Vaidya) Judge

Kanta Devi v. Indira Rana

Case brief

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Kanta Devi v. Indira Rana

Case brief

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