C/FA/3505/2019 ORDER DATED: 09/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3505 of 2019
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SHAILESHBHAI PRATAPBHAI SOLANKI
Versus
JOSHI NALEENBHAI HEERALAL
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Appearance:
MR JA ADESHRA(107) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/03/2023
ORAL ORDER
1. Challenge is given to the judgment dated 9.7.2018 passed by MACT, Nadiad in MACP no.326 of 2009, whereby the petition came to be dismissed observing that the claimant failed to produce any type of documents inspite of number of opportunities provided by the Tribunal. Learned advocate submitted before the Tribunal that he was not in contact with the client since long.
2. Since the matter was more than 9 years old, the evidence of the claimant was closed by order dated 9.7.2018. It appears that on the Page 1 of 8 Downloaded on : Fri Mar 10 20:53:58 IST 2023 C/FA/3505/2019 ORDER DATED: 09/03/2023 very same day, on closing the stage of evidence of the claimant, the learned Tribunal dismissed the claim petition. The Tribunal ought to have placed the matter for the evidence of the respondent instead of dismissing the claim petition outright on the very same day.
3. In failure of claimant producing any evidence, the Tribunal ought to have called for the information under Form 54 of the Motor Vehicle Act as laid down in the case of Jai Prakash v. National Insurance Company Limited, reported in (2010) 2 SCC 607.
4. Advocate Mr. Ankit Shah submits that the matter was pending for more than 9 years and neither the claimant, nor his advocate appeared for producing the evidence and thus, states that the Tribunal was not required to wait for the claimant for Page 2 of 8 Downloaded on : Fri Mar 10 20:53:58 IST 2023 C/FA/3505/2019 ORDER DATED: 09/03/2023 indefinite time and thus, under the circumstances, states that dismissal order is just and reasonable.
5. Advocate Mr. Adeshra states that the claimant is a student and was aged about 18 years at the time when the claim petition was filed and was a minor when the accident took place and had sustained 34% disability for the body as a whole. Mr. Adeshra states that after instructions of the counsel on record, of no contact with his client, the learned Tribunal ought to have sent a notice to the claimant and states that the learned Tribunal has referred to the proposition of law that after framing of issues, the Tribunal was required to scrupulously follow rather than dismissing the matter on default by making reference of the judgment reported in 2022 ACJ 1261 (Guj).
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6. In the decision in the case of Bharatbhai Narsinghbhai Chaudhary & Ors. v. Malek Rafik Malek Himmatbhai, reported in 2011 (2) GLR 1324, the Court has observed that the Tribunal has no power to dismiss the claim petition for default. It would be incumbent upon the Tribunal to issue a notice to the claimants and the Advocates appearing on record after framing of the issues for providing the Affidavit in the form of examination-in-chief supported by the documents.
7. It is necessary to reproduce relevant part of the decision in the case of Bharatbhai Narsinghbhai Chaudhary (supra) which is 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 Page 4 of 8 Downloaded on : Fri Mar 10 20:53:58 IST 2023 C/FA/3505/2019 ORDER DATED: 09/03/2023 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) Page 5 of 8 Downloaded on : Fri Mar 10 20:53:58 IST 2023 C/FA/3505/2019 ORDER DATED: 09/03/2023 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 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)."
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8. The claimant was minor at the time of the accident who suffered 34% disability for the body as a whole. The counsel for the claimant has merely addressed of his non- contact with his client. However, no notice was served by him, nor any notice was issued by the Tribunal to the claimant of the submissions made by the counsel on record. The claimant had no knowledge about the said fact and the development on record to diligently pursue the matter.
9. The Tribunal would have no power to dismiss the claim petition for default. The learned Tribunal was knowing about this proposition of law, inspite of that fact, has dismissed the matter stating it to be a default of the claimant. The Tribunal could have decided the matter on merits by calling for the documents through Form-54 rather could have Page 7 of 8 Downloaded on : Fri Mar 10 20:53:58 IST 2023 C/FA/3505/2019 ORDER DATED: 09/03/2023 sent a notice to the claimant directing him to appear and produce the documents in support of his case.
10. In view of the above proposition of law laid down in the referred judgments, MACP no.326/09 is ordered to be restored back on the file of the concerned Tribunal with a direction that the matter be disposed of within a period of four months. Accordingly, the present appeal is disposed of.
(GITA GOPI,J) Maulik Page 8 of 8 Downloaded on : Fri Mar 10 20:53:58 IST 2023