IN HE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) Misc.Appea1 No. ('L’Eé 0f 2004 ( Memoranaum o§ Misc.Appea1 U/s 173 0+5 M.v.Act ) 9 : Satyendra singh s/b Ram Dasg-Jangde, aged abdt 23 years, resident of LIG 74, Raj mdra Vrasad Nagar Korba. 1§hsil ana District Karloa (CG). A PPE LLANT / Ci§iTqANT Versus 1. Aerik Lajras @ Banti S/o saiman agea 35 yaars. r/o Sector 5, Anand Nagar Ambedkar Bhawan Xe Pichhe Balco, Tehsil and District mrba (CG) (Driver)‘ R.Raj iv s/oD.Rajdhan, resident of Qr.No.ND 94, m.P.E.B. colony wrba (East) Tehsil and mitrict mrba (CG). (Vehicl e Owner) . \* RESPONDENTS Branch Manager, United Insurance co. Ltd., Ibrha. Tehsil and District wrba (CG). / , -»MEMORANDUM OF MISC.APPEAL UNDER SECTION 173 013‘ MO'IOR VEHICL$V ACT IGH COURT OF CHHA’I‘TISGARH : BILASP M. A. N0. 136 of 2004 Appellant Satyendra Singh Versus Respondents Aerjk Lajras @ Banti 65 others 65 others APPEAt, UNDER SECTION 173 OF THE MOTOR VEHICLES ACT: 1988 DB: Hon’ble Shri I. Mt Quddusi 8r. Hon’ble Shri Justice N. K. Agaxwal, JJ ; V " Shri Sushobhit Singh, Advocate for the appellant. None for the respondents No. 1 and 2. Shri ‘l—l. B. Agarwal, Senior Advocate with Shri Pankaj Agarwal, Advocate for the respondent No.3, ORDER (Oral) ( Passed on this lst day of September, 20 10 ) Per I. M. Quddusi, J. Heard. 1. This appeal arises from the award dated 15.12.2003, passed by the Additional Motor Accident Claims Tribunal, Korba in Claim Case No. 145/ 2002. The, brief facts, in nutshell, are that the appellant filed a claim case on the allegation that on 18.7.2000 at about 3 to 4 p.111. as a result of the rash and negligent dn'ving of the driver of the vehicle, bearing registration No. M.P. 26—C/5862 the appellant received grievous injuries. In that incident wrist of right hand of the - appellant got injured. He took treatment in the hospital at Bhilai from 21.7.2000 to 30.9.2000. He was a student of second year. Due the injury he was not in a position to write his examination, therefore, he could-not study for one year. Thus, the appellant had hled a claim case for award of total compensation of Rs. 11,55,000] — under various heads. / / /// H UR 3. On 29112003, the date &ed for evidence, no evidence was produced by the claimant, nor the claimant himself was present. However, an application was tiled for grant of time to produce evidence, which was dismissed. Instead of following the provisions of Order 17 Rule 2 of the Code of Civil Procedure in the absence of any evidence produced on the date of hearing when neither the appellant was present nor his witness was present, the Court has dismissed the claim by passing the impugned award, which is apparently illegal. 4. ‘ “In this regard in the’case of Mohandas and others Vs. Ghisia Bai and othersl wherein on the date when the case was fixed for evidence, the counsel for plaintiE moved an application for a short adjournment which was rejected. Then again the counsel for the plaintiff m0ved 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 suit under Order 17 Rule 3 of the C.P.C., against which an appeal was preferred and the case was remanded back by the Supreme 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 find is neither the plaintinl appellant nor his witnesses Were present on 7th May, 9‘94. Therefore, the case has to be dismissed upder 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.” 5. In Ashok Kumar Vs. Hagar Palik Nigam 85 others 2O 10 (2) C.G.L.J. 354 this Court (Single Bench of one of us) has also taken the above view. 1AIR 2002 SC 2436 . Thakur In View of the above we allow this appeal in part. The impugned award dated 15.12.2008 passed by the Tribunal is set aside and We remit the matter to the Tribunal to decide the same in G accordance with law. Accordingly, the appeal is allowed in part to the above extent. No order as to costs. The Registiy is directed to send back the papers, requisitioned from the Tribunal, forthwith. < i Sdl- 3 I.M.Quddusi i [fir Sd/— N.K. Agrawal Judge ‘ Judge