S.K.Chattopadhyaya, J.

1. In this appeal, the question to be decided is:

As to whether in an appeal filed after the Motor Vehicles Act, 1988 (Act No. 59 of 1988) (hereinafter referred to as the new Act) came into force against an award arising out of a proceeding under the Motor Vehicles Act, 1939 (Act 4 of 1939) (hereinafter to be referred to as the old Act), the appellant is required to comply with first proviso to Sub-sec. (1) of Sec. 173 of the new Act?

2. In this appeal, applicability of Sec. 173 of the new Act is point in issue. It is not disputed that in this appeal, the claimant (respondent No. 1) had filed his claim petition under the old Act but the appeal has been filed in this court after coming into force of new Act.

3. This appeal has been admitted for final hearing by order dated 28.10.1990 and notices were issued on respondent Nos. 1 and 2 under registered cover. While respondent No. 2 has appeared through Mr. P.C. Roy, Advocate, nobody has appeared on behalf of respondent No. 1 and by order dated 30.1.1992, the service of notice on respondent No. 1 has been accepted as valid.

4. It appears from the record of the case that after the admission of the appeal,