Hamidaben Adambhai Vora vs Gujarat State Transport Nigam
2021 Latest Caselaw 18051 Guj

     C/SCA/6697/2017                               JUDGMENT DATED: 03/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6697 of 2017


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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

2     To be referred to the Reporter or not ?                           No

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

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

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                          HAMIDABEN ADAMBHAI VORA
                                   Versus
                       GUJARAT STATE TRANSPORT NIGAM
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Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1
MR HARDIK C RAWAL(719) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                               Date : 03/12/2021

                              ORAL JUDGMENT

1. Heard learned advocate Mr.Tejas P.Satta for the petitioner and learned advocate Mr.Hardik C.Rawal for the respondent.

2. The petitioner herein is original claimant in Motor Accident Claim Petition No.430 of 1998 filed before the Motor Accident

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Claims Tribunal, Ahmedabad (Rural). Such claim petition was dismissed for default in absence of the petitioner, when it was listed for final disposal by an order dated 06.09.2007. By such order, the Motor Accident Claims Tribunal, Ahmedabad (Rural) has observed that petitioner and his advocate have remained absent when the matter was called out and that sufficient time and opportunity has been given to the petitioner, but it appears that petitioner has no interest to proceed with the matter, hence, the claim petition is dismissed. Such claim petition was filed because of accidental injuries sustained by the claimant on 5.9.1997 when he was traveling in S.T. Bus, which met with an accident when the driver of the S.T. Bus could not control the bus because of his rash and negligent driving on Viramgam Highway and thereby, the bus had turned turtle and gone into the road- side ditch. The petitioner had received several injuries on different parts of the body for which he has claimed Rs.25,000/- as compensation. When such petition was dismissed for want of prosecution, the petitioner has filed restoration application before the same Tribunal, but, because there was delay in filing such restoration application, the petitioner has filed one Civil Misc. Application No.7 of 2014 to condone the delay of six years and six months in filing such application.

3. By impugned judgment and order dated 30.07.2016, the Motor Accident Claims Tribunal and 2 nd District and Additional Sessions Judge, Ahmedabad (Rural) at Viramgam has dismissed the application by refusing to condone the delay.

4. If we peruse the impugned judgment, it becomes clear that the Tribunal has relied upon the order of dismissal wherein the concerned Tribunal at the relevant time has observed that

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petitioner is not interested to proceed with the matter. However, when restoration application with an application to condone the delay is preferred, now, what is required to be looked into and appreciated by the Tribunal is the reason for the delay and non- appearance on a given date for which claim was dismissed for default. Unfortunately, in impugned judgment, the Tribunal has relied upon the first order only and therefore, in any case, there is a need to interfere with such an order, which prima facie results into not only irregularity, but illegality, whereby rights of the petitioner to claim compensation has been curtailed without adjudication of his petition, which otherwise needs to be adjudicated even in absence of the petitioner and based upon the information received by the Tribunal in Form No.54 from the investigating agency, which is a statutory necessity under the Act. Alternatively, when such claim petitions are filed with an affidavit on day one and which is to be decided in summary manner, there is no reason for the Tribunal to dismiss the petition for want of prosecution rather than to award just and reasonable compensation based upon the available evidence on record, if any, supported by any other evidence, and in absence of the same, then, atleast based upon the affidavit, which is otherwise produced as examination-in-chief with the claim petition itself.

5. Though such issue relating to main petition may be remote at this stage of deciding an application to condone the delay, the fact remains that the Tribunal has failed to appreciate that there is sufficient cause in not filing the restoration application in time and thus committed error in holding that there is no sufficient cause.

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6. Though it is specifically averred by the petitioner, Tribunal has failed to realise that there was no fault on the part of the petitioner - claimant being the victim of the accident, but only of his advocate, who has not bothered to call him at the relevant time to adduce evidence and to proceed further in his claim petition. When Tribunal has recorded such position, it would have been appropriate for the Tribunal to extend the benefit to the victim - claimant rather than extending benefit to tort-feasor, who is responsible for payment the compensation. In fact, in such cases, compensation needs to be paid immediately after the incident, without entering into technicalities, but unfortunately, Insurance Companies and State Road Transport Corporation are taking hyper technical views in all such matters to avoid their responsibility to pay compensation to the victims. It is also to be borne-in-mind that victims of road accident are not litigants in its true sense, but they are real victim of the mishap and that the legislature has enacted the provisions under the Motor Vehicles Act for such claimants as a benevolent piece of legislation in favour of the victim and therefore, its true benefit should be extended to all such claimants without following technicalities. The judgment in Jamnashanakr Ratilal Pandya Vs. Babulal Ramgopal Patidar & Ors. in Special Civil Application No.9761 of 2008 dated 16.9.2008 confirms such view. It cannot be ignored that the petitioner is a senior citizen and therefore, he has a reason to plead that he was not able to proceed further in time in absence of specific instructions from his advocate when he has engaged an advocate. It cannot be further ignored that in such cases, in fact the Tribunals are granting permission to engage advocate and, therefore, if there is negligence on the part of the advocate for not remaining present, then, initially Tribunal shall recall the order below the

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application seeking permission to engage the advocate and thereby to issue notice upon the petitioner to remain present before the Court in final hearing.

7. In view of above facts and circumstances, the petition needs to be allowed considering the fact that the law of limitation is quite well settled which confirms that no-one should be non-suited on technical grounds. For such principle, I am relying upon following citations:-

(1) (2010)2 SCC 114 Dalipsingh Vs. State of UP, (2) (2012)8 SCC 524 Cicily Kallarackal Vs.Vehicle Factory, (3) (2012) 5 SCC 157 Maniben Devraj Shah Vs.Municipal Corporation of Brihan Mumbai, (4) (2012)3 SCC 563 Post Master General & Ors. Vs. Living Media India Ltd.

(5) (2010)8 SCC 685 Balwant Singh (Dead) Vs.Jagdish Singh, (6) (2010)5 SCC 459 Oriental Aroma Chemical Industries Ltd.

Vs. Gujarat Industrial Development Corporation, (7) (2008)17 SCC 448 Pundlik Jalam Patil (Dead) Vs. Executive Engineer, Jalgaon Medium Project, (8) (1997)7 SCC 556 P.K. Ramachandran Vs.State of Kerala, (9) 2012(7) SCALE 230 B.Madhuri Goud Vs. B.Damodar Reddy, (10) AIR 2012 SC 640 Abdul Gafoor Vs. State of Bihar, (11) AIR 2011 SC 428 Delhi Development Authority Vs. Bhola Nath Sharma, (12) AIR 2011 SC 977 Union of India Vs.Giani, (13) AIR 2011 SC 1150 Parimal Vs. Veena, (14) AIR 2010 SC 1445 State of J & K Vs.Mohmad Maqbool Sofi, (15) AIR 2009 SC 1927 State of Jharkhand Vs.Ashok Kumar Chokhani, (16) AIR 2009 SC 2577 State of Karnataka Vs.Y. Moideen Kunhi, (17) AIR 2009 SC (Supp.) 695 State (NCT of Delhi) Vs. Ahmed Jaan, (18) AIR 1984 SC 1744 O.P. Kathpalia Vs.Lakhmir Singh (Dead) by 3 Judges bench of Apex Court, (19) AIR 2008 SC 1688 Sinik Security Vs. Sheel Bai, AIR 2009 SC 2170 D.D. Vaishnav Vs. State of M.P. and AIR 2009 SC (Supp.) 195 Commissioner, Nagar Parishad, Bhilwara Vs.Labour Court, Bhilwara, (20) AIR 1987 SC 1353 Collector, Land Acquisition, Anantnag Vs. Mst. Katiji.

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8. In view of above facts and circumstances and considering the order dated 13.04.2016 passed by this Court in Special Civil Application No.16205 of 2015, the petition is allowed. Learned advocate Mr.Hardik C.Rawal has submitted that in view of such situation, when petitioner has not bothered to proceed further in his claim petition for almost a decade, it should be made clear that he is not entitled to claim interest for the period of such delay. However, at this stage of deciding the application to condone the delay, no such condition can be imposed, but it is made clear that respondent can raise the issue before the Tribunal when main petition is heard on its own merits and it would be appropriate for the Tribunal to decide such issue in accordance with law. Direct service is permitted.

Sd/-

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL