Hiraben Bhikhabhai Bharvad vs Kamabhai Pachabhai Rabari
2022 Latest Caselaw 9161 Guj

    C/SCA/20787/2022                                          JUDGMENT DATED: 17/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 20787 of 2022


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI                                Sd/-

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

2    To be referred to the Reporter or not ?                                             No

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

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

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                          HIRABEN BHIKHABHAI BHARVAD
                                     Versus
                          KAMABHAI PACHABHAI RABARI
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Appearance:
MR Y J PATEL(3985) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 17/10/2022

                                ORAL JUDGMENT

1. By way of this petition, the petitioner (a widow) has prayed for quashing and setting aside the impugned order dated 12.01.2017 passed by the learned Additional Sessions Judge, Surendranagar below

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Exhibit 8 as well as the order dated 24.07.2018 passed by the learned Additional Sessions Judge, Surendranagar and also restore the Claim Petition being M.A.C.P. No.104 of 2004 filed before the learned Motor Accident Claims Tribunal, Surendranagar.

2. Learned Advocate for the petitioner Mr. Y.J. Patel submits that the petitioner was injured and had filed M.A.C.P. No.104 of 2004 before the learned Motor Accident Claims Tribunal (Auxi.), Surendranagar for getting a compensation amount of Rs.3,00,000/-. It is submitted by learned Advocate Mr. Patel that the matter remained dormant and sine die for a long period and it was only on 05.04.2005 that the issues came to be framed and the claimant was never informed about the full progress in the trial and no notice was sent by the concerned Court after framing of the charges and on 11.07.2016 it is submitted that it appears that learned Advocate for the applicant / claimant was praying for time and thereafter on 11.07.2016, the claim petition came to be rejected.

3. It is submitted that the M.A.C.P. (for Restoration)

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No.86 of 2016 was moved and the claimant had given reasons for the learned Advocate moving an application on her behalf for adjournment stating that the applicant is engaged in the animal husbandry work and therefore, at the relevant time could not remain present before the Court to adduce her evidence. The learned Tribunal on hearing the applicant after referring to the case of Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324, had restored the application on condition of paying an amount of Rs.500/- to D.L.S.A., Surendranagar within 3 days of the order. Thus, M.A.C.P. No.104 of 2004 was ordered to be restored on the file for deciding the same on merits. As per the submission, since the amount could not be deposited within the time frame as per the order, an application dated 11.01.2017 was filed before the learned M.A.C.T., Surendranagar for accepting the amount of Rs.500/-. It is submitted that owing to de-monetization on 08.11.2016, the amount of Rs.500/- could not be deposited before D.L.S.A. and the order dated 29.11.2016 could not be complied with. The

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application for accepting the money in compliance of the order dated 29.11.2016 moved as Civil Miscellaneous Application No.86 of 2016 came to be rejected on 12.01.2017.

4. It is submitted that the said order dated 12.01.2017 and the order dated 24.07.2018 in Civil Miscellaneous Application No.87 of 2017 for condoning the delay came to be rejected and challenge is against both the orders.

5. In case of the Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324 (supra), it has been held that the learned Tribunal has no power to dismiss the Claim Petition for default taking into consideration the 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

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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, 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 28 th January, 2004, under Order 9, Rule 4 of the Code, wherein, the

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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)."

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 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,

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instead of entering into the technicalities."

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 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

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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 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. It appears that as per the record, M.A.C.P. No.104 of 2004 came to be dismissed for default on 11.07.2016,

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the Restoration Application was granted on 29.11.2016 with a condition to pay a cost of Rs.500/- to D.L.S.A., Surendranagar. The claimant did not pay the amount during the stipulated period and there again moved an application for accepting the said amount, which was also rejected on 12.01.2017 and then the delay condonation application for restoration came to be filed, in accordance to the order also came to be rejected on 24.07.2018.

9. According to the record, the learned Tribunal had passed an order of restoration of the M.A.C.P. No.104 of 2004 on 29.11.2016. The claimant had shown her inability to pay the costs in time. The learned Tribunal keeping in mind the object of the Motor Vehicles Act, 1988 ought to have accepted the cost amount and should have restored the M.A.C.P. Petition since the claim petition under the M.V. Act could not be dismissed for default in absence of the issues decided on merits. The inconvenience and inability of the applicant to pay the cost amount should have been considered graciously and the amount to be deposited before the D.L.S.A., Surendranagar ought to have ordered to be received

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belatedly and the delay in restoring the file should have also been condoned since the earlier predecessor Tribunal had granted the said relief. It was necessary for the Tribunal not to have dismissed the claim petition in the first place in absence of the claimant producing any evidence on record. The learned Claims Tribunal ought to have called for Form No.54 in case where it is found that the claimant herself or her Advocate is trying to delay the trial with the ulterior motive with the intention to exert more interest amount from the Insurance Company then such adjournment applications should be rejected and at the same time, the order to call for Form No.54 from the investigating officer should have been passed and the compensation amount should be granted as per the evidence so produced by the Investigating Officer to the claimant.

10. Considering these observations in the order dated 12.01.2017 below Exhibit 8 in Civil Miscellaneous Application No.86 of 2016 as well as the order dated 24.07.2018 in Civil Miscellaneous Application No.87 of 2017 are quashed and set aside. The M.A.C.P. No.104 of 2004 is ordered to be

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restored to its original File. However, the cost of Rs.500/- (Rupees Five Hundred Only) be recovered from the claimant after the compensation amount is ordered to be granted.

11. This petition stands allowed in the aforesaid terms. Direct Service is permitted.

Sd/-

(GITA GOPI, J) CAROLINE