#7 “a” / IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. No. ’03 /2oo4 APP ELLANTS : 1. Shanti Devi, W/o. sitaram CLAIMANT a“ Sharma, aged about 60 years, Occupation House wife. Deepak Kumar Sharma, S/o. Sita— ram‘Sharma, aged’about 37 years, Occupation Service. 3. Prakash Kumar sharma, S/o. Sitaram Sharma, aged about 32 years, Occupation Business. (All are R/o. Viilage Satpata Bishrampur, P.S. Bishrampur, Tahsil Surajpur, Distt. Surguja (C.G.). VERSUS REsmNDENT§ ‘Ashik Ahmad Kuraisi, S/o. Sahid u H . 'yGN-APPL ICANTs Ahmad Kuraisi, aged about 22 yrs, Caste‘Muslim, Occupation Driver R/o. Main Road Bishramour, P.S. &'Post Bishrampur, Tahsil Suraj- pur, Distt. Surguja (C.G.) (DRIVER) Jamil Ahmad, 5V0. Basir Ahmad, R/o. Hansapuri, Moninpura Nagpur ( / (Maharashtra) ( OWNER) National Insurance Company Ltd. Through Regional Manager, National Insurance Company Ltd. Korba, Post Korba, Distt. Korba (C.G (INSURER) .) n N u v/ ’1 APPE% UNDER SECTION 1'73 OF THE MOTOR VEHICLE ACT , deceased was admittcd in different hospitals where hs had undergone prolonged treatment but could not get relief &om (L\ ? 5the injuries. However after his discharge during convalescence the deceased hlmself filed a clam ease agamst the Iespondents but unfortunately dunng the pendency of the clam, Srtaram dled on 12 02 2001 due to the gravrty of mjunes Thereafter the legal representatwes of the deceased were substrtuted m order to alarm compensahon on account of death of S1taram The learned Tnbunal drsmrssed the claim on the ground that the applicants have not produced theig Witnesses in ambiguous circumstances; therefore, the applicants are‘not entitled to get compensation from the non-applicants. We have heard learned counsel for the parties and have also perused the records. On Certain occasions, Opportunities were given to the claimants to adduce evidence, but the claimants and their witnesses remained absent and ultimately on 03.10.2003, the application hled on behalf of the appellants {or grant of time to produce evidence was rejected and the‘evidence of appellants was closed. In the above circumstances, in our opinion the impugned award should not have been made as, the Tribunal concerned out to have followed the provisions of Rule 3(b) read with Rule (2) of Order 17 of the Code of Civil Procedure and should have passed the orders in accordance with Order 9 CPC. f f 1 f I 5. In this regard, it is relevant to place reliance on decision of I} the Supreme Court in Mohandas and others Vs. Ghisia Bai and others 2002 AIR SCW 2676, wherein on the date when the case was fixed for evidence, the counsel for plaintm‘ moved an application for a short adjournment which was E rejected. Then again the counsel for the piaintid moved an application under Order 17 Rule 1 of the Code of Civil Procedure on the ground that the plaintid is seriously ill and therefore the case may be adjourned, the said application was also rejected. Thereafter the trial Court dismissed the ‘ s‘uit under Order 17 Rule 3 of the C.P.C., against which an V appeal was preferred and the case was~remanded back by the Suprem‘e Court holding that the order passed was not under Order' 17 Rule 2 but was under Order 17 Rule 3 of C,P.C. The Supreme Court in paragraph 3 observed as under : “In the present case what we hnd is neither the plaintih’ appellant nor his witnesses were present on 7th May, 1994, Therefore, the case has to be dismissed under Order XVII, Rule 2. Even Rule 3 itself provides that if the parties or any of them absent, the court shall proceed to decide the suit under order XVII, Rule 2. In View of the said legal position, we are of the View that the view taken by the Court below was erroneous and deserves to be set aside. We, therefore, set aside the judgment under appeal and sent the case back to the trial Court to decide the matter in accordance with law.” In Ashok Kumar Vs. Nagar Palik Mgam 85' others 2010 (2) C.G.L.J. 354 this Court has also taken similar View. In View of the above, the award made by the Tribunal is not sustainable in the eye of law. Therefore, we allow this appeal in part, set aside the impugned award and remit the matter back to the Tribunal for deciding ths same afresh in 1% accordance with law. The Lower Court Record shall be sent § back forthwith. Needless to mention that the claim petition shall be decided as early as possible prefelably witlu'n a r ~ {edge ‘ J 1 pen-Cd 0f4 1 ‘ Sdx- r e ‘ , ' ' ' ' LM. ‘ ‘ . Sd/- Jgdge Prash‘ant Kumzir Mlshl‘a i