The main legal point established is that the right to recover compensation does not survive after the death of the claimant, leading to the dismissal of the claim case.

( 1 ) THIS is an appeal against the order dated 14. 7. 1994 passed by Additional Motor Accidents Claims Tribunal, sohagpur (henceforth 'the Claims Tribunal') in Motor Accident Claim Case No. 6 of 1987. The Claims Tribunal has dismissed the claim case filed on behalf of deceased Rajendra Paliya on the ground that the claim case automatically abated after expiry of 90 days of the death of rajendra Paliya. The Claims Tribunal, by the impugned order, dismissed the application under Order 22, rule 3 of the Code of Civil Procedure as well as an application under section 5 of Limitation Act (which should have been filed under Order 22, rule 9 of the Code of Civil Procedure ). It was held that there is no question of substitution of legal representatives of deceased Rajendra Paliya on record as cause of action does not survive to legal representatives of the deceased. This appeal is preferred by the legal representatives of deceased Rajendra Paliya, under Order 43, rule 1 (k) of the Code of Civil Procedure.

( 2 ) IT appears that Rajendra Paliya had made a claim for compensation against the respondents on the ground that he suffered injuries on 11. 4. 1985 because of rash and negligent driving of two trucks mentioned in the application.

( 3 ) A preliminary objection was raised on behalf of the respondents that no misc. appeal lies under Order 43, rule 1 (k) of the Code of Civil Procedure.

( 4 ) THE learned counsel for the appellant, by way of abundant caution, has filed an application for converting this appeal into a civil revision. This application is registered as I. A. No. 27 of 1999. This order shall dispose of that application. It has also been argued that the decision is on merits and as such appealable under section 173 of the Motor Vehicles Act, 1988.

( 5 ) THE question is whether this appeal should be considered as an appeal under order 43, rule 1 (k) of the Code of Civil procedure because the application under order 22, rule 3 of the Code of Civil Procedure for bringing the LRs of Rajendra paliya on record has been dismissed along with the application for condonation of delay in setting aside the abatement or should it be treated as dismissal of the claim case on the ground that the death of rajendra Paliya extinguished the claim. If so, it would be dismissal of the award on merits and appealable as such under section 173 of the Motor Vehicles Act, 1988.

( 6 ) THE learned counsel for the respondents has cited a decision of a Full Bench of this court in Mithulal Har Prasad Naik v. Badri Prasad Kanchhedilal, 1980 MPLJ 778, for supporting his argument that no appeal lay against the impugned order.

( 7 ) IT may be necessary for this court to make a reference to a decision of this court in Mohd. Yousuf v. Jyotsana Ben, AIR 1996 MP 197, for resolving the controversy between the parties. It has been held in this case, relying on an earlier decision of this court in Govardhan Badrilal Mahajan v. Ganesh Balkrishna Deshmukh, 1962 mplj 325, that the forum of appeal or revision has to be determined by what the court actually does and not what the court ought to have done.

( 8 ) THE Claims Tribunal appears to have passed two-fold order. Firstly, it holds that after expiry of ninety days of the death of rajendra Paliya the claim case abated for non-compliance of Order 22, rule 3, Code of Civil Procedure. This could only be if the 'cause of action' survived after the death of Rajendra Paliya and Order 22, rule 3 of the Code of Civil Procedure applied. The second part of the order is that the proceedings for recovery of compensation cannot go on as the right to sue does not survive. This court is, therefore, called upon to consider the two apparently conflicting lines of thought in the order of the claims Tribunal for finding out what it has done. It appears to this court that if the appellants want to succeed they must get that part of the order of the Claims Tribunal set aside which says that the proceedings for recovery of com