C/FA/2282/2018 ORDER DATED: 20/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2282 of 2018
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KANUBHAI MAFATBHAI PARMAR
Versus
THAKORBHAI AMBALAL PATEL & 1 other(s)
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Appearance:
MS RV ACHARYA(1124) for the Appellant(s) No. 1
MR. RAHUL R DHOLAKIA(6765) for the Defendant(s) No. 2
NOTICE SERVED BY DS for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/02/2023
ORAL ORDER
1. Ms.R.V.Acharya, learned advocate for the appellant submits that MACP No.31 of 2008 was filed claiming compensation, as the claimant sustained injuries in the motor accident.
2. Learned advocate Ms.Acharya submits that learned Tribunal disallowed MACP No.31 of 2008 vide order dated 18.12.2017 observing that the claim petition is pending since 2008 and reasonable opportunity has been given to the claimant and his advocate, but not remained present to proceed with the matter; the claimant has not Page 1 of 8 Downloaded on : Mon Feb 20 21:10:52 IST 2023 C/FA/2282/2018 ORDER DATED: 20/02/2023 submitted any evidence as per the provisions of the Evidence Act; the disability certificate, insurance policy and the incident of accident is not properly proved according to law with material legal evidences, dismissed the application. The claim petition came to be disallowed due to lack of chan of evidences and due to the default of the claimant as the claimant was intentionally avoiding the matter and due to negligence of the claimant, observing that the other side has to bear the costs of proceedings and the Tribunal has to spend many papers and inks etc after the matter. Learned Tribunal presumed that the claimant is not interested to proceed with the matter. Thus, learned Tribunal found no other alternative but to disallow the claim petition in default of the claimant.
3. In case of the Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324, it has been held that the learned Tribunal has no power to dismiss the Claim Petition for default taking into consideration the Page 2 of 8 Downloaded on : Mon Feb 20 21:10:52 IST 2023 C/FA/2282/2018 ORDER DATED: 20/02/2023 object behind the Motor Vehicles Act, 1988, i.e. to provide adequate compensation to the claimants. The relevant part of the above 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 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 Page 3 of 8 Downloaded on : Mon Feb 20 21:10:52 IST 2023 C/FA/2282/2018 ORDER DATED: 20/02/2023 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 22nd November, 2001 and another restoration application is filed on 28th 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 appears 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)."
4. In the case of Bharatbhai Narsinghbhai Chaudhary (supra), it has been held in Paragraphs 5.13 and 5.14 as under :-
"5.13. The object of the Act, which is a benevolent provision or social welfare legislation under which, compensation is paid, has to be considered liberally and the intention of the Legislature enacting such provisions to achieve the said object, has to be considered. While interpretation of the provisions of social welfare Page 4 of 8 Downloaded on : Mon Feb 20 21:10:52 IST 2023 C/FA/2282/2018 ORDER DATED: 20/02/2023 legislation, the Courts should adopt an approach in such a manner, that in any event, it fulfills the policy of the legislation. The interpretation to be adopted, should be more beneficial to a person in whose favour and in whose interest the Act has been passed. While dealing with application under the Act, the interpretation has to be for the benefit of the poor victims. It is, therefore, necessary to take a constructive and positive attitude in interpreting the provisions of these types and determine the main aim or object of a particular Act in question for adjudication before the Court.
5.14. The Act and the Rules framed thereunder also do not empower the Claims Tribunal to dispose an application merely for default of the applicant without arriving at findings on merits of the case, after the stage of framing issues. In the instant case, issues were framed, and thereafter, the learned Tribunal was required to decide the case on merits with a view to provide substantial justice, instead of entering into the technicalities."
5. Learned advocate Ms.Acharya submits that there cannot be any dismissal of MACP Petition for want of prosecution since the Tribunal has no power to dismiss the MACP without giving findings on merits.
6. In the case of Sunil Shivran @ Sevaram Rabari v. Nirmalsing Triloksing & Others reported in 2019 (1) G.L.R. 694, it has been held that the claim petition cannot Page 5 of 8 Downloaded on : Mon Feb 20 21:10:52 IST 2023 C/FA/2282/2018 ORDER DATED: 20/02/2023 be dismissed for default. It is the duty of the Tribunal to award just and reasonable compensation based on material available on record. The Tribunal has to call for relevant information in Form No.56 from the Investigating Agency. The law permits to record evidence by affidavit. When the claim petition gives details of claim, nature of accident, the Tribunal is required to award just compensation and further, no matter can be disposed of without doing justice.
7. In the case of Joshi Rajendrakumar Popatlal v. Thakor Ramnaji Hamirji and Others reported in 2019 (2) G.L.R. 1508, it has been held that the Tribunal cannot dismiss claim petition on the ground that the claimant has not produced driving license, R.C. Book or Insurance policy of vehicle involved in accident. The Tribunal is required to call for such information from the Investigating Agency. It is mandatory for the Investigating Agency to collect such information and forward it to the Tribunal in Accident Information Report in Form 54 under Rule 150 within 30 days. The Tribunal is required to treat the said report as Page 6 of 8 Downloaded on : Mon Feb 20 21:10:52 IST 2023 C/FA/2282/2018 ORDER DATED: 20/02/2023 application for compensation and award just and reasonable compensation to the claimant without waiting for filing of claim petition. The Court disapproved the conduct of the Tribunal in not calling for said information from the Investigating Agency and the order of the Tribunal was quashed and set aside. It was also held that the claimant may disclose the said information only if he is aware. The disclosure in the claim petition by the driver, owner and insurer of the offending vehicle is sufficient. The owner and driver though served with summons did not appear, the insurance company appeared but did not file a written statement. It was also held that there was no reason for the Tribunal to dismiss the claim petition but the Tribunal is required to call for Accident Information Report in Form 54 from the Investigating Officer.
8. In view of judgment of Bharatbhai Narsinghbhai Chaudhary (supra), the matter requires to be remanded back and hence, the judgment and award dated 18.12.2017 in MACP No.31 of 2008 is quashed and set aside with the Page 7 of 8 Downloaded on : Mon Feb 20 21:10:52 IST 2023 C/FA/2282/2018 ORDER DATED: 20/02/2023 direction that the MACP No.31 of 2008 be restored to the file of the concerned Tribunal and be disposed of in accordance with merits after issuance of notice to both the parties and their advocates on record. The exercise of hearing the parties may be concluded within 5 (five) months on receipt of writ of this Court.
9. With aforesaid, the present appeal stands disposed of.
(GITA GOPI,J) H.M. PATHAN Page 8 of 8 Downloaded on : Mon Feb 20 21:10:52 IST 2023