The interpretation and applicability of Section 173 of the Motor Vehicles Act in determining the maintainability of appeals in cases dismissed for default or ex parte orders.

MANJULA CHELLUR, J.

( 1 ) 1. This Misceilaneous First Appeal is filed by the 1st respondent before the Tribunal in M. V. C. No. 980/94. The facts that lead to the filing of the appeal are as under:

( 2 ) M. V. C. No. 980/94 was filed by the L. Rs, of deceased - Jayarajclaiming compensation against the owner of the private bus bearing no. MEG 8010 and the Insurance Company. The date of accident is 4. 5. 1994. Admittedly, the claim petition came to be filed before the tribunal at Mangalore. Both respondents -1 and 2 were represented before the Mangalore Court. Subsequently, by order dated 22. 8. 1995 the matter was transferred to the Additional M. A. C. T. Udupi. Both the respondents were absent. Subsequently, except the second respondent the 1st respondent-owner did not file the written statement. Therefore, issues were framed on the basis of the written statement of the Insurer i. e. , respondent No. 2 before the Tribunal. Advocates represented both the petitioners and also the second respondent. The matter was disposed of by Judgment and award dated 20. 2. 1998. As the vehicle was not insured with the second respondent-Insurer though the petition was allowed, the liabiiity was fastened against the owner who did not participate in the proceedings except making his appearance by filing vakalath. Aggrieved by the said order, the present appeal is filed.

( 3 ) THE learned Counsel for the appellant contends that he waskept totally in dark about the proceedings before the M. A. C. T. Udupi as neither the Court at Udupi sent him a fresh notice nor his advocate intimated him about the transfer of the case and its dismissal. He further contended that under Section 173 of the Motor Vehicles Act, he could challenge the Judgment and Award by filing an appeal under Section 173 of the MVC Act. According to the appellant, if he had an opportunity to place before the Tribunal all the materials available, the award would not have been passed by the Tribunal. He also questions the quantum of compensation in this appeal. So far as the second respondent is concerned, he has nothing to say except reiterating his defence that the vehicle in question was not insured with them. So far as the 1st respondent is concerned according to him, the very appeal is not maintainable as far as this appeal is concerned as the Judgment and award passed by the tribunal would fall under Order 17 Rule 2 CPC and therefore he ought to have taken recourse under Order 9 Rule 13 CPC.

( 4 ) IN reply the learned Counsel for the appellant submits thatsection 173 of the Motor Vehicles Act provides for appeal against any order irrespective whether it is an order under Order 17 Rule 2 or Order 17 Rule 3 CPC. It is further contended, in the absence of any specific provision providing for filing appeal the Court has to look for assistance from the procedure in CPC. He relies on three decisions i. e. , (1) A. K. P. HARIDAS vs MADHAVI AMMA and OTHERS (2) MOKTESARS OF GANAPATHI TEMPLE vs ARCHAKS (3) K. S. R. T. C. vs SRI KALWA PRAKASH and ANOTHER.

( 5 ) THE point that would arise for Court's consideration is whetherthe appeal is maintainable? What order?

( 6 ) ADMITTEDLY, subsequent to the transfer of the matter to theadditional M. A. C. T. Udupi, so far as the appellant herein, he never took part in the proceedings. But on the objection statement filed by the Insurer issues were framed. It is noticed from the order sheet in the M. V. C. that new counsels were engaged both for the claimant and also for the Insurance Company.

( 7 ) THE learned Counsel Sri B. N. Govinda Bhat who wasappearing for the appellant at Mangalore did not participate on behalf of the appellant at Additional M. A. C. T. Udupi. Therefore, the judgrnent and Award came to be passed against the appellant herein holding, he is liable to pay Rupees one lakh and odd as compensation without participation in the proceedings. So far as this appellant is concerned, the Judgment and award was not on merit, but on the object

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