( 1. ) THIS appeal has been filed against an order passed by the Motor accidents Claims Tribunal, Indore, dismissing the appellants application for compensation under section 110a of the Motor Vehicles Act, 1939, on the preliminary ground that it being a petition against the Union of India a notice under section 80, Civil Procedure Code was necessary which was not given in the case.

( 2. ) THE facts giving rise to this appeal are that the applicants daughter rampyari Bai aged about 12 years, was injured on 22nd November 1966 as a result of an accident by Motor Vehicle No. DD-4083 driven by a driver in the defence Services because the vehicle belonged to the Defence Services of the government of India. As a consequence, the applicant, who is the father of the deceased Rampyari Bai submitted an application under section 110a of the Motor Vehicles Act for grant of compensation on the allegation that the driver of the vehicle was driving the vehicle rashly and negligently. Amongst other grounds of defence, a plea was raised before the Tribunal that the claim being against the Union of India, a notice under section 80, Civil Procedure code was necessary and that as admittedly no notice under section 80 was given, the claim-petition could not proceed. The tribunal framed an issue on this question and treated it as a preliminary issue, and having held in favour of the respondent the Tribunal dismissed the petition on this short ground.

( 3. ) SHRI R. C. Mukati, learned counsel for the appellant, contended that section 80, Civil Procedure Code only applied to a suit instituted against the government. The word suit is not defined in the Code of Civil Procedure, and section 26, Civil Procedure Code only indicates as to how a suit is instituted and apparently that would be when a plaint is presented in a civil Court. According to the learned counsel, a petition under section 110a of the Motor vehicles Act could not be said to be a plaint and at the same time the Claims tribunal could not be said to be a civil Court, and consequently no notice would be necessary under section 80, Civil Procedure Code. He placed reliance on Khairunnissa v. Municipal Corporation, Bombay (1966 ACJ 37.) and Bhagwat Singh v. State of Rajasthan (AIR 1964 SC 444. ). Learned counsel also contended that the decision in M. P. State Ed. Tra. Corp. v. Munnabai (1967 MPLJ 4963= 1967 ACJ 214.) happened to be a decision of a Division Bench of this Court where incidentally it is observed that a notice under section 80, Civil Procedure Code is necessary and as notice was given in that case it could not be said to be a decision on the question. He contended that the observation about notice was not a decision on the question which was raised, and, therefore, the Tribunal was wrong in dismissing the application of the appellant.

( 4. ) SHRI R. K. Vijayvargiya appearing for the respondent contended that although a petition for compensation has been described as an application under section 110a of the Motor Vehicles Act, but it could not be lost sight of that originally the right to claim compensation was a right under the torts, which could only be claimed by way of a suit. According to the learned counsel, by the amendment in the Motor Vehicles Act only the procedure has been changed and consequently even if a petition for compensation has been described in the Act as an application, it could not mean that it does not fall within the purview of the word suit which is not defined in the code of Civil Procedure. He also contended that section 26, Civil Procedure code talks of plaint, but the word plaint has also not been defined and the ordinary dictionary meaning of that word would include even an application for claims as such. Learned counsel relied on the decision in Sawai Singhai v. Union of India (air 1966 SC 1068. ). He contended that the observations in M. P. State Rd. Tra. Corp. v. Munnabai are not obiter, and it being a Division Bench decision of this Court