Hajrabhai Mamad Abda vs Ker Ayub Sidhik

                                                                                  NEUTRAL CITATION




     C/FA/3363/2023                              JUDGMENT DATED: 24/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3363 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI                    Sd/-

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1    Whether Reporters of Local Papers may be allowed to                    No
     see the judgment ?

2    To be referred to the Reporter or not ?                                No

3    Whether their Lordships wish to see the fair copy of the               No
     judgment ?

4    Whether this case involves a substantial question of law               No
     as to the interpretation of the Constitution of India or any
     order made thereunder ?


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                         HAJRABHAI MAMAD ABDA
                                 Versus
                            KER AYUB SIDHIK
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Appearance:
MR HARSH JOSHI with MR HIREN M MODI(3732) for the Appellant(s) No.
1,2,3,4
for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 24/08/2023
                             ORAL JUDGMENT

1. By way of this Appeal, the Appellant-claimant has challenged the judgment and award dated 05.08.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), Bhuj-Kachchh in M.A.C.P. No.28 of 2016.

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2. Learned Advocate Mr. Harsh Joshi appearing with learned Advocate Mr. Hiren M. Modi for the appellant-claimant submitted that the petition was under Section 163A of the Motor Vehicles Act, 1988 but the learned Tribunal dismissed the petition for want of prosecution on 05.08.2021; while the learned Tribunal was required to decide the Claim Petition on merits. It is further submitted that the appellant was not required to plead and prove that the death or permanent disability in respect of which the claim was made was due to a wrongful act or neglect of the owner of the vehicle concerned or of any person. It is further submitted that the learned Tribunal had come to the conclusion that as appellant had failed to remain present to give evidence on record then at the most, the learned Tribunal could have closed the stage, could have put the matter for evidence of the opponent and could have decided the compensation amount.

3. Heard learned Advocate for the appellant-claimant; perused the material on record. This Court would like to refer to the decision of this Court in the case Page 2 of 5 Downloaded on : Sun Sep 17 02:26:15 IST 2023 NEUTRAL CITATION C/FA/3363/2023 JUDGMENT DATED: 24/08/2023 undefined of Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324 and the relevant part of the decision is reproduced herein below as under :-

"A District Judge, who functions as a Claims Tribunal, is not only within the administrative control of the High Court, but also subordinate to it under Section 115 of the Code. A Claims Tribunal is a 'Court' although with limited jurisdiction and not a mere 'Tribunal'. The powers of appeal given to the High Court under the Act against the decision of the Tribunal constituted under the Act, will definitely lead to conclusion that the said Tribunal is subordinate to the High Court and the nomenclature given to the Motor Vehicles Tribunal that, it is a Tribunal, will not take it out of the purview of the Civil Court. (Para 5) Under Rule 3, therefore, even if, neither party appears when the suit is called for hearing, it is not compulsory for the Court to dismiss the suit. The Court may adjourn the suit. In the event of dismissal of the suit, it is open to the plaintiff to apply for restoration of the suit and the Court may set aside the order of dismissal and restore the suit.

An order dismissing a suit for default of appearance of parties is not a "decree" under Sec. 2(2), and hence, is not appealable. An order of dismissal of a suit based on erroneous application of Rule 3 can be said to be a "case decided" within the meaning Page 3 of 5 Downloaded on : Sun Sep 17 02:26:15 IST 2023 NEUTRAL CITATION C/FA/3363/2023 JUDGMENT DATED: 24/08/2023 undefined of Sec. 115 of the Code. Hence, where the Court has acted with illegality or with material irregularity in the exercise of jurisdiction, a revision would like against such an order. (Para 5.7) The provisions of the Code are applicable to govern the procedure in a Motor Accident Claim case as provided under Rule 229 of the Gujarat Motor Vehicles Rules, 1989. There is no separate procedural law, made applicable to conduct the Motor Accident Claim petitions. Therefore, application for restoration, made under Order 9, Rule 4, in the instant case, is absolute, legal and sustainable, and therefore, the revision, arisen out of such order, passed below such application, is also undoubtedly maintainable. (Para 5.11) On perusal of the application and other relevant papers, it appears that the restoration application was filed by the applicants on 22 nd November, 2001 and another restoration application is filed on 28 th January, 2004, under Order 9, Rule 4 of the Code, wherein, the applicants have described the reasons and tried to justify their case for restoration of the application. On perusal of the papers, it apperas that the applicants are poor persons and coming from the lower strata of the society as they belong to Tribal community. Therefore, instead of entering into the technicalities and with a view to do the substantial justice, the Court below was required to adopt lenient view. (Para 6)."

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4. As the Claim Petition has not been decided on merits, the present Appeal is allowed and the judgment and award dated 05.08.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), Bhuj-Kachchh in M.A.C.P. No.28 of 2016 is quashed and set aside. M.A.C.P. No.28 of 2016 is ordered to be restored on the File of the learned Tribunal to be decided on merits. Both the parties are directed to co-operate with the learned Tribunal and to conclude the petition within a period of five months from the date of receipt of writ of the order of this Court. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.

Sd/-

(GITA GOPI, J) CAROLINE Page 5 of 5 Downloaded on : Sun Sep 17 02:26:15 IST 2023