\^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Diiio Raosaheb Deshmukh, J. Misceilaneous Appea! No.1055 of 2005 Appeliant Ramesh Kumar, S/o Ramsubhaa Ciaimant Aged about 18 years, R/o Maheba, P.S. Basantpur, District Surguja (C.G.) versus Respondents 1. The United India Insurance Company Limited, through the Branch Manager, Branch Office, Near Ram Mandir, Ambikapur, District Surguja (C.G.) 2. Matendra Singh Babra, S/o Harwansh Singh, Aged about 48 years, R/o Deviganj Road, Ambikapur, District Surguja (C.G.) Memorandum of appea! under Section 173 of the Motor Vehtcles Actread with Order 43 Rule 1 ft) of C.P.C, Present : Shri A. K. Shukia, counsel for the appellant. Shri Abhishek Sinha, counsel for the respondent No.l/insurance Company. No one appears on behalf ofthe respondent No.2. ORAL ORDER (Passed on 14mAugust,2007) Heard. (2) The appellantfclaimant is aggrieved by Ihe impugned award dated 16-06-2005 passed by 2nd Adcfitional Motor Accidents Claims Tribunal, Surajpur, District Surguja (henceforth 'the M.A.C.T.') in Motor Accidents Ctaim Case No.06/2002, whereby an applicationunder Order 9 Rule 9 of C.P.C. filed by the claimant for setting aside the dismissal of claim case on 23-06-2001 in the absence of the ctaimant, was rejected on the groundthat J^-.—.-— fo; dismissai was under Order 17 Rule 3 of C.P.C., and therefore, the appellant was required to prefer an appea!. (3) Brief undisputed facts are that upon last and final opportunity was bu*^, iT granted to the appellant to adduce evidence, the claim case No.06/2002 was fixed on 23-06-2001 for evidence. The claimant remained absenf on 23-06-2001. Upon his prayerfor adjournment being tumeddown the learned counsei for the claimant withdrew, pleading no instructions. Thereafter, the M.A.C.T. dismissed the application in the absence ofthe claimant. (4) The sole question which requires consideration in this appea! is vrfiich of the provisions contained in Order 17 Rule 3 or under Order 17 Rule 2 C.P.C. shall be applicabte. (5) Order 17 Rule 3 of C.P.C. reads as under:- 3. Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any pariy to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the farther progress of the suit, for which time has been allowed, [ the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith, or, (b) if the parties are, or any of them, is absent, proceed under mle A piain reading of Order17 Rule 3 of C.P.C. leaves no room for any doubt that sub clause (b) of Rule 3 applies to the present case because the ctaimant was absent on the date of evidence and the learned counsel for the claimant had pleaded no instruction. Therefore, the dismissal of the claim application was clearly under sub clause (b) of Rule-3 of Order 17 and not under sub clause (a) of Rule 3 of Order 17 of C.P.C. Thus, the dismissal of 2 TMmane the claim case being under Order 17 Rule 2 C.P.C., the provisions contained in Order 9 C.P.C. were applicable. (6) The order passed by the M.A.C.T. holding the dismissal of the claim appiication under Order 17 Rute 3 of C.P.C. is thus contrary to law and iiable to be set aside. (7) In this view ofthe matter, the appeal is allowed. The impugned order dated 16-06-2005 passed by the M.A.C.T. in Motor Accidents Claim Case No.06/2002 is set aside. The M.A.C.T. shall consider the appiication under Order 9 Rule 9 of C.P.C. on merits after giving opportunity of hearing to the parties. Sdf- Dilip Raosaheb Deshmukh Judge 1