A.K. Rath, J
1. Aggrieved by and dissatisfied with the award dated 04.11.2010 passed by the learned M.A.C.T., Kalahandi-Nuapada, Bhawanipatna in M.A.C.
No. 01 of 2008, the insurer has filed the present appeal.
2. Claimants-respondent nos. 1 to 6 filed an application under Section 166 of the Motor Vehicles Act (in short, ‘the M.V. Act’) for
compensation before the learned Tribunal. The case of the claimants was that the Manohar Lal, husband of claimant no. 1, father of claimant nos. 2 to
6, was travelling in an indica car bearing registration No. OR-08-C-7923 from Saintala to Sambalpur. On the way, the vehicle met with an accident, as
a result of which, he succumbed to the injuries. The deceased was forty one year old at the time of accident. He was a business man and earning
more than Rs. 3.6 lakhs per annum.
3. Though notice was issued to the owner of the vehicle, opposite party no. 1, but he had chosen not to contest the case and as such set ex parte.
Opposite party no. 2, insurer filed a written statement denying liability. It was stated that the deceased was travelling in a private car. The insurer had
violated the terms and conditions of the policy. It is exonerated from liability. Parties led evidence. On an anatomy of pleadings and evidence on
record, learned Tribunal awarded the amount of Rs. 18,97,000/-. While matter stood thus, the opposite party no. 1 filed CMA No. 17 of 2009 under
Order 9 Rule 13 CPC to set aside the ex parte award. Learned Tribunal set aside the award on 23.07.2009. Thereafter opposite party no. 1 filed a
written statement stating therein that the deceased was a hired passenger in his car. The vehicle was validly insured with the insurer-opposite party
no. 2. The insurer has paid damages to him for the damages of the vehicle.
4. Stemming on the pleadings of the parties, learned Tribunal framed three issues. Parties led evidence, oral and documentary. On an assessment of
the evidence on record and pleadings, learned Tribunal awarded Rs. 19,85,500/- with interest @ 6% per annum from the date of claim application and
directed the insurer to pay the same.
5. Heard Mr. Jayasankar Mishra, learned counsel for the appellant and Mr. Sasanka Sekhar Sahoo, learned counsel for the respondent nos. 1, 4, 5 and
6. None appears for respondent no. 2 and respondent no. 3.
6. Mr. Mishra, learned counsel for the appellant submits that any person, aggrieved by an award of the Claims Tribunal, may file an application under
Section 173 of the M.V. Act before the High Court. In the event the appeal is filed before this Court, he has to deposit Rs. 25,000/- or fifty percent of
the amount so awarded. Learned Tribunal awarded the amount of Rs. 18,97,000/- with 6% interest and directed the owner to pay the same.
Thereafter, the owner of the vehicle filed an application under Order 9 Rule 13 CPC to set aside the ex parte award. Learned Tribunal set aside the
ex parte award and observed that the amount shall be paid by the insurer and the same shall be recovered from the owner of the vehicle. The
provisions contained in Order 9 Rule 13 CPC does not apply to a proceeding under Sec.166 of the M.V. Act. Further after the award was set aside,
on the self-same evidence, learned Tribunal awarded Rs. 19,85,500/-. There is no rhyme or reason to enhance the award amount from Rs. 18,97,000/-
to Rs. 19,85,500/-.
7. Per contra, Mr. Sahoo, learned counsel for the respondent nos. 1, 4, 5 and 6 submits that the deceased was the sole bread earner of the family. The
family received a set back after the death. Initially, the award was passed, but the same was set aside at the behest of the owner. The award amount
is just and proper.
8. Section 173 of the M.V. Act provides that any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the
award, prefer an appeal to the High Court. It further provides that no appeal by the person who is required to pay any amount in terms of such award
shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded,
whichever is less, in the manner directed by the High Court.
9. Rule 20 of the Orissa Motor Vehicles (Accidents Claims Tribunal) Rules, 1960 (in short, “the Rulesâ€) deals with application of the Code of
Civil Procedure in certain cases. The same reads as follows:
“20. 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 Tribunals, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10;
Order XVI, Rules 2 to 21; Order XVIII and Order XXIII Rules 1 to 3.â€
10. On a conspectus of Rule 20 of Rules, it is crystal clear that the provisions of Order 9 Rule 13 CPC will apply to the proceeding under Section 166
of the M.V. Act.
11. On a harmonious reading of Sec.173 of the M.V. Act and Rule 20 of the Rules, it is evident that any person aggrieved by an ex parte award may
either file an application under Sec.177 of the M.V. Act before the High Court or may file an application under Order 9 Rule 13 CPC before the
learned Tribunal to set aside the same. The provision of the statute is clear and explicit. It is open to the aggrieved party either may file an appeal or
file an application under Order 9 Rule 13 CPC.
12. In Transcore v. Union of India, (2008) 1 SCC 125, the apex Court in paragraph-64 of the judgment held as follows:
“64. ………… There are three elements of election, namely, existence of two or more remedies; inconsistencies between such remedies and a
choice of one of them. If any one of the three elements is not there, the doctrine will not apply. According to American Jurisprudence, 2d, Vol. 25, p.
652, if in truth there is only one remedy, then the doctrine of election does not apply…………….According to Snell's Principles of
Equity (31st Edn., p. 119), the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the
litigants at the time of election which are repugnant and inconsistent………â€
(emphasis laid)
13. The next question crops up as to whether the learned Tribunal is justified in enhancing the award from Rs. 18,97,000/- to Rs. 19,85,500/-. Parties
led evidence. On taking a holistic view of the matter, learned Tribunal awarded an amount of Rs. 19,85,500/- with interest @ 6% per annum from the
date of the application and directed the insurer to recover the same from the owner of the vehicle. After the award was set aside, no further evidence
was adduced by the parties. Learned Tribunal committed a manifest illegality in enhancing the award from Rs. 18,97,000/- to Rs. 19,85,500/- on the
self-same evidence. In view of the same, the award amount is reduced to Rs. 18,97,000/- from Rs. 19,85,500/-. The rest part of the award shall
remain unaltered. The appeal is allowed to the extent indicated above. No costs.
