Gujarat High Court

Bavajibhai Jaksibhai Thakor vs Dipakbhai Naranbhai Rathod ... on 28 July, 2022

Bench: Gita Gopi

     C/FA/658/2022                                      ORDER DATED: 28/07/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 658 of 2022

                                        With

                       R/FIRST APPEAL NO. 659 of 2022
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                    BAVAJIBHAI JAKSIBHAI THAKOR
                               Versus
                DIPAKBHAI NARANBHAI RATHOD (RAJPUT)
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Appearance:
MR. BHARGAV K MEHTA(7094) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 28/07/2022

                            COMMON ORAL ORDER

1. Mr. Bhargav K.Mehta, learned advocate for the

appellants submits that, the present batch of two appeals

are challenging the order of dismissal in M.A.C.P. Nos.

1436/2010 and 1437/2010 arising out of the same

accident. He submits that both the M.A.C.Ps have been

dismissed on the same day i.e. on 28.11.2019 on the

ground of want of evidence.

2. Mr. Mehta submitted that in MACPs, the issues

were framed on 10.07.2019 after a long period of 9 years.

He states that the claimants associated with the

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agriculture work, they would have lose track of the

proceedings of the matter, as the issues could not be

framed within a reasonable time. Mr. Mehta further

stated that after framing of issues, the Advocate on

record or the claimants were not informed about the

same. Mr. Mehta contends that though the claimants or

the Advocate as a matter of right cannot claim of any

service of notice from the Court after framing of issues,

but when issues are framed after a long period, the

Advocate on record ought to have been informed and

without granting an opportunity to adduce the evidence,

the matter ought not to have been dismissed on the

ground of want of evidence from the petitioners,

appellants herein.

3. Mr. Palak Thakkar, learned advocate for the

respondent no.6 submits that, it was the duty of the

claimants and the Advocates on record to remain present

and be vigilant about the proceedings. The Insurance

Company had filed the reply. Mr. Thakkar submits that in

MACP No.1437/2010, the United India Insurance

Company had filed the written statement, and after

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framing of issues on 10.07.2019, sufficient opportunity

was granted, but failed to adduce any evidence.

4. The Record and Proceedings were called for

and on perusal of the same, it reflects that the issues

were framed below Exhibit-29 on 10.07.2019 by 10 th Addl.

District & Sessions Judge, Ahmedabad at Mirzapur. The

opponent no.6 - United India Insurance Co. Ltd. filed the

reply at Exhibit-28 on 18.09.2018 after the matter was

transferred to the Court of 3rd Addl. M.A.C.T. (Aux.).

Then, as per the Rojkam again on 10.06.2019, the case

got transferred to 9th Addl. M.A.C.T (Aux.), and the

proceedings shows that below Exhibit- 29, on 10.07.2019,

the issues were framed. As per the Rojnama, the Tribunal

on 10.07.2019, observing the endorsement below Exhibit-

3, which is application under section 140 of the M.V. Act,

as not pressed disposed of the application and on the very

next adjournment i.e. on 18.07.2019, observing that none

of the advocates were present on that day, the right of

the petitioner - appellant to adduce evidence was closed,

and then the matter was posted on 13.08.2019. Marking

the presence of the advocates of both the sides, the

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matter stood adjourned on three subsequent dates in the

month of September, while no Raojkam was drawn, and

then on 24.09.2019 observing that none of the advocates

have remained present, the stage of filing of evidence of

the opponents were also closed. Thereafter, on the next

adjournment on 14.10.2019, the stage of arguments came

to be closed and the matter was posted for judgment on

28.11.2019.

5. Unfortunately, the learned Tribunal had failed

to keep in kind the object of benevolent legislation of

M.V. Act. On 10.06.2019, the matter came to his Court.

The learned Tribunal considering the endorsement on

Exhibit-3 of not pressing, the application under Section

140 of the M.V. Act, disposed the same and on the very

same day, the issues were framed. The learned Tribunal

after receiving the matter on transfer, ought to have

given a notice to the claimants of the framing of issues;

still however, considering the fact that endorsement was

placed on Exhibit-3 by the learned advocate for the

claimants, he may be having the knowledge of initiation

of proceedings, but the record does not reflect of the

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knowledge of framing of issues to the advocate of the

claimant and on the very next day the stage of petitioner

- appellant of filing the evidence came to be closed.

6. Apt it has been stated, justice hurried is justice

buried. The learned Tribunal failed to even take into

consideration the fact that the petitions were filed in the

year 2010 and after a long period of 9 years the issues

were framed. There has been delay of 9 years by the

Tribunal to frame the issues and within 8 days the

learned Tribunal, oblivious of this delay, had closed the

stage. This very fact suggests that no reasonable

opportunity was granted to the petitioners - appellants to

file the evidence. Nothing is on the record to even

suggest that the Tribunal had informed claimants of the

initiation of the trial. Even the opponents had no

opportunity to file their reply.

7. This Court does not want to comment on the

conduct of the Tribunal concerned. It appears that the

learned Tribunal only wanted to dispose of the matters

rather than decide the matters. No opportunity was

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granted to any of the party to produce the evidence, and

then the petitions were dismissed on the ground that

there were want of evidence. The very attitude and

approach of the Tribunal is required to be condemned.

8. This Court in the case of Bharatbhai

Narsinghbhai Chaudhary and Others v. Malek Rafik

Malek Himantbhai Malek and Others reported in

2011 (2) G.L.R. 1324, held that, when an application

before the Claims Tribunal is moved for restoration, then

in that circumstances, the Civil Revision Application

against the said order would be maintainable under

Section 115 of the Code. It is further submitted that the

Claims Tribunal is the Court and the District Judge

presides over the Claims Tribunal who is subordinate to

the Court under Section 115 of the Civil Procedure Code.

Learned Advocate Mr. Mehta has placed reliance on the

observations made in the said judgment which reads as

follows :-

"Under Rule 3, therefore, even if, neither party appears when the suit is called for hearing, it is not compulsory for the Court to

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dismiss the suit. The Court may adjourn the suit. In the event of dismissal of 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 acceptable. 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 lie against such an order.

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."

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9. The learned Tribunal in both the matters while

dismissing the petition for want of evidence has observed

below issue Nos. 1 and 2 as under:

"To substantiate his claim, the petitioner has not submitted or filed any affidavit for chief examination in support of his claim petition and also not produced any requisite documentary evidence in respect of the sustained permanent disablement in the alleged vehicular accident as well as disability certificate, though opportunities have been given by this tribunal to the petitioner. The petitioner has just produced documentary evidences with list at Exh.4 consisting the copies of i.e. FIR, Panchnama of place of accident, Injury certificates as well as Insurance Policy of the vehicle in question, but these documentary evidence is not sufficient to prove claim petition of the petitioner. As regard to produce the requisite documents in support of his claim petition this tribunal has given so many opportunities to the petitioner though the petitioner has failed to produce the documentary as well as oral evidence in support of his claim and also neither the petitioner nor his ld. Advocate showing any interest to proceed the matter on merit till date and also this tribunal has given further opportunities to the petitioner to come forward before this tribunal and argued out in the matter in support of his claim petition.

C/FA/658/2022 ORDER DATED: 28/07/2022

But again the petitioner side has not shown any interest to proceed the matter and thereby this tribunal has considered that the petitioner has failed in both ways to proceed the matter though many opportunities have been given in the interest of justice and also in absence of cogent proof as regard the permanent partial disablement sustained by the petitioner as well as his age, income and occupation of the claim petition could not be possible to decide on merit. Whereas Res. No.1 & 2 didn't appear before this tribunal and hence this tribunal has proceed the matter exparte against Res. No.1 & 2, whereas ld. Advocate of Res. No.3 has filed its written statement at Exh.11, wherein it has denied almost all the facts of the petition and prayed to dismiss the present claim petition. Thus, considering the above factual aspect of the petition this tribunal has came on conclusion that the petitioner has no any interest to proceed the matter on merit and didn't taking care for any proceeding in the matter and also in the absence of requisite documentary as well as oral evidence to decide the matter on merit could not possible and hence this tribunal has hold the reply of issue No.1 & 2 in the negative and accordingly the matter is dismissed for want of requisite and necessary evidence."

10. The Record & Proceedings as well as Rojnama

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do reflect that the petitioners - appellants as well as

respondents both were not granted opportunity to adduce

evidence. It has been laid down in the above referred

judgment that, there cannot be any rejection of matter

after framing of issues without any reasoning on merits.

It is crystal clear that the judgments are not on merits.

Both the sides are required to be granted opportunities.

11. In view of the above, both the appeals are

allowed. The judgment and award dated 28.11.2019

passed by Motor Accident Claim Tribunal (Aux.) in MACP