The main legal point established is that the provisions of Order 9 Rule 13 CPC apply to the proceeding under Section 166 of the M.V. Act, and the tribunal cannot enhance the award without further evidence.

JUDGMENT :

A.K. Rath, J.

Aggrieved by and dissatisfied with the award dated 04.11.2010 passed by the learned M.A.C.T., Kalahandi-Nuapada, Bhawanipatna in M.A.C. No. 01 of 2008, the insurer has filed the present appeal.

2. Claimants-Respondent nos.1 to 6 filed an application under Section 166 of the Motor Vehicles Act (in short, 'the M.V. Act') for compensation before the learned Tribunal. The case of the claimants was that the Manohar Lal, husband of claimant no.1, father of claimant nos.2 to 6, was travelling in an indica car bearing registration No.OR-08-C-7923 from Saintala to Sambalpur. On the way, the vehicle met with an accident, as a result of which, he succumbed to the injuries. The deceased was forty one year old at the time of accident. He was a business man and earning more than Rs. 3.6 lakhs per annum.

3. Though notice was issued to the owner of the vehicle, opposite party no.1, but he had chosen not to contest the case and as such set ex parte. Opposite party no.2, insurer filed a written statement denying liability. It was stated that the deceased was travelling in a private car. The insurer had violated the terms and conditions of the policy. It is exonerated from liability. Parties led evidence. On an anatomy of pleadings and evidence on record, learned Tribunal awarded the amount of Rs. 18,97,000/-. While matter stood thus, the opposite party no.1 filed CMA No. 17 of 2009 under Order 9 Rule 13 CPC to set aside the ex parte award. Learned Tribunal set aside the award on 23.07.2009. Thereafter opposite party no.1 filed a written statement stating therein that the deceased was a hired passenger in his car. The vehicle was validly insured with the insurer- opposite party no.2. The insurer has paid damages to him for the damages of the vehicle.

4. Stemming on the pleadings of the parties, learned Tribunal framed three issues. Parties led evidence, oral and documentary. On an assessment of the evidence on record and pleadings, learned Tribunal awarded Rs. 19, 85,500/- with interest @ 6% per annum from the date of claim application and directed the insurer to pay the same.

5. Heard Mr. Jayasankar Mishra, learned counsel for the appellant and Mr. Sasanka Sekhar Sahoo, learned counsel for the respondent nos.1, 4, 5 and 6. None appears for respondent no.2 and respondent no.3.

6. Mr. Mishra, learned counsel for the appellant submits that any person, aggrieved by an award of the Claims Tribunal, may file an application under Section 173 of the M.V. Act before the High Court.

In the event the appeal is filed before this Court, he has to deposit Rs. 25,000/- or fifty percent of the amount so awarded. Learned Tribunal awarded the amount of Rs. 18,97,000/- with 6% interest and directed the owner to pay the same. Thereafter, the owner of the vehicle filed an application under Order 9 Rule 13 CPC to set aside the ex parte award. Learned Tribunal set aside the ex parte award and observed that the amount shall be paid by the insurer and the same shall be recovered from the owner of the vehicle. The provisions contained in Order 9 Rule 13 CPC does not apply to a proceeding under Sec.166 of the M.V. Act. Further after the award was set aside, on the self-same evidence, learned Tribunal awarded Rs. 19,85,500/-. There is no rhyme or reason to enhance the award amount from Rs. 18,97,000/- to Rs. 19,85,500/-.

7. Per contra, Mr. Sahoo, learned counsel for the respondent nos.1, 4, 5 and 6 submits that the deceased was the sole bread earner of the family. The family received a set back after the death. Initially, the award was passed, but the same was set aside at the behest of the owner. The award amount is just and proper.

8. Section 173 of the M.V. Act provides that any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court. It further provides that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Cou