Chhaganbhai Lavjibhai Patodiya ... vs Nitinbahi Kanakbhai Vyas
2022 Latest Caselaw 7274 Guj

      C/FA/2701/2022                               ORDER DATED: 23/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2701 of 2022
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     CHHAGANBHAI LAVJIBHAI PATODIYA DIED THRU LH AND REPR.
       RASILABEN CHHAGANBHAI PATADIYA(WIDOW OF DECD)
                             Versus
                   NITINBAHI KANAKBHAI VYAS
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 23/08/2022

                                ORAL ORDER

1. Being aggrieved and dissatisfied with the judgment and award dated 06/04/2018 passed by the Motor Accident Claims Tribunal (Auxiliary), Rajkot in Motor Accident Claims Petition No.84 of 2012, present appeal has been filed by the appellant- heir and legal representative of the deceased.

2. Admit. Mr. Alkesh N. Shah, learned advocate waives service of notice of admission on behalf of defendant - insurance company. Though served, no one appears on behalf of defendant no.1.

3. Mr. Hemal Shah, learned advocate for the appellant submitted that present appellant is widow of the deceased who died during the pendency of the Motor Accident Claim Petition No.84 of 2012 which was filed by the deceased as having sustained injuries during the vehicular accident which

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had occurred on 03/09/2011 while he was traveling from his home to visit Hanuman Temple situated at Sardhar Road on motor cycle bearing registration no.GJ-3-BK-8579. When he reached Vitthalvav, suddenly one city ride bus bearing registration no.GJ-14-W-82 came from opposite side and dashed with the motor cycle due to which the original claimant sustained grievous injuries. He had almost lost his mental balance. He had difficulties in his speed and was not in a position to even walk on his own and he was admitted to Sterling Hospital, Rajkot. FIR was registered at Rajkot Taluka Police Station as I-CR No.184 of 2011 for the offence punishable under Sections 279, 337, 338 of the Indian Penal Code as well as Sections 134, 184 and 117 of the Motor Vehicles Act.

4. Mr. Hemal Shah, learned advocate submitted that issues came to be framed on 06/11/2016. Notice was sent to advocate on record and even to the petitioner of the claim petition and the bailiff report was to the effect that the petitioner had died five years ago to the report. Mr. Shah, learned advocate submitted that as per the report of the bailiff, the petitioner-claimant died on 27/10/2013 at Shubham Hospital, Rajkot. It is submitted by Mr. Hemal Shah, learned advocate that from the date of accident till his death, he was continuously admitted in the hospital. Prayer was made to the effect of increasing the claim amount which was granted i.e. from Rs.5/- lacs to Rs.10/- lacs. Mr. Hemal Shah, learned advocate submitted that the learned Tribunal ought to have considered the case by appreciating the evidence which was

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produced on record even by way of form-54 and when the order under Section 140 of the Motor Vehicles Act was passed considering the disability certificate, the tribunal was duty bound to award just and reasonable compensation to the victim. Mr. Hemal Shah, learned advocate submitted that learned Tribunal ought not to have enter into such technicality and should have considered the provisions of Section-306 of the Indian Succession Act, as accordingly right of action of the claim would survive. Mr. Hemal Shah, learned advocate has referred to the decision of the Hon'ble Supreme Court in case of Banwarilal (dead) by Legal representatives and another vs. Balbir Singh reported in (2016) 1 SCC 607.

5. Countering the same. Mr.Alkesh Shah, learned advocate for the insurance company submitted that the learned Tribunal even after framing of issues had issued notice and the present applicant was aware of the notice so served, however, had failed to bring herself on record of the matter by joining legal heirs of the deceased and ought to have produce evidence on record. Mr.Alkesh Shah, learned advocate submitted that because of negligence of the parties, the insurance company should not made to suffer as it would create heavy burden of interest on the insurance company.

6. As submitted, the deceased was continuously admitted in the hospital and as per the report, he died in the Shubham Hospital, Rajkot and his heirs and legal representative is only his wife who is present appellant.

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7. In case of Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324, the Hon'ble Court observed 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 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,

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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 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)."

8. Considering the principles laid down in the above cited case of Bharatbhai (supra), the Tribunal cannot dismiss the Motor Accident Claim Petition for default. Learned Tribunal was required to decide the matter on merits. The learned Tribunal is required to assess the matter on the basis of the evidence on record. Form-54 could have been used to decide the claim petition. However, since the claimant was reported to have died and fact had come to the knowledge of the Tribunal by way of bailiff report, learned Tribunal ought to have made further inquiry from the bailiff about surviving heirs of the deceased and could have added them on record.

9. This Court would have appreciated that exercise from the side of the Tribunal taking in mind the benevolent legislation of granting compensation in a very objective manner with a view to do substantial justice. Since the present appellant is only surviving heir of the deceased, this

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Court considered that opportunity is required to be granted.

10. Here in this matter, Civil Application No.1 of 2019 for bringing heirs and legal representatives has been filed and the same has been allowed on 31/01/2000. Thereafter, Civil Application No.807 of 2020 condonation of delay of 404 days in preferring the appeal has been filed and the same has been allowed on 19/07/2022. Therefore, since the heir of the claimant is ordered to be brought on record, and, the delay has been condoned, the abatement stands set aside.

11. In case of Banwarilal (dead) by Lelga representatives and another vs. Balbir Singh, reported in (2016) 1 SCC 607, the Hon'ble Supreme Court has held that, rules of procedure under Order 22 of Civil Procedure Code are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. It is further held therein that, procedure is meant only to facilitate the administration of justice and not to defeat the same.

12. In view of above, since the delay has been condoned and the appellant has been permitted to pursue the appeal as heir of the deceased. Present appeal is allowed. The judgment and order dated 06/04/2018 passed by the Motor Accident Claims Tribunal (Auxiliary), Rajkot in Motor Accident Claims Petition No.84 of 2012 is quashed and set aside and the same

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is directed to be restored to its original file with a direction to the Tribunal that the appellant be permitted to continue the claim petition as a heir and legal representative of the deceased with a direction that she would not claim any interest from the date of judgment till date of this order.

13. The appellant herein is directed to move the learned Tribunal within a period of fifteen days to be joined as a heir of the deceased in Motor Accident Claim Petition No.84 of 2012.

14. Learned Tribunal is directed to pass judgment and award afresh in accordance with law considering the facts and evidence produced on record. With the aforesaid observations, present appeal stands disposed of.

(GITA GOPI,J) ILA