Gujarat High Court

Desai Bharatbhai Nagjibhai vs Khokhar Mahmadbhai Yarmahmad on 12 September, 2022

Bench: Gita Gopi

     C/FA/2645/2022                                ORDER DATED: 12/09/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2645 of 2022

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                         DESAI BHARATBHAI NAGJIBHAI
                                   Versus
                      KHOKHAR MAHMADBHAI YARMAHMAD
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Appearance:
MR KAMLESH S KOTAI(6150) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,4,5,6
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 12/09/2022

                                ORAL ORDER

1. Mr. Kamlesh S.Kotai, learned advocate for the

appellant states that, the appeal has been preferred against

the order of dismissal of M.A.C.P. No.314/2013 by Motor

Accident Claims Tribunal (Main), Mehsana, where the case

was dismissed for non-prosecution.

2. Mr. Kotai submits that, the claimant was not

informed about framing of issues by the Tribunal concerned,

nor the Advocate had informed about the progress of the

matter. Mr. Kotai further states that the Tribunal ought to

have issued a notice to the claimant asking him to adduce

evidence, in case, where the Advocate failed to appear.

C/FA/2645/2022 ORDER DATED: 12/09/2022

2.1 Reliance has been placed on the judgment of

Bharatbhai Narsinghbhai Chaudhary and Others v.

Malek Rafik Malek Himantbhai Malek and Others,

reported in 2011 (2) G.L.R. 1324, to submit that the

Tribunal has no power to dismiss the claim petition for default

without recording the findings on merits.

3. The learned Tribunal has observed that after

registration of the claim petition, the claimant and his

Advocate did not come forward for recording of evidence.

After service of notice to the other parties, a reply was filed by

the opponent - Insurance Company. The Tribunal had framed

issues on 02.03.2017, and the matter was kept for recording

of evidence from the side of the claimant. While dismissing

the matter, the learned Tribunal observed in paragraph no.6,

as under:

"6. Considering the above mentioned facts and discussions, this matter is more than five years old and then also the claimant and his learned advocate has continuously remained absent and has not produced any kind of evidence, which are required for

C/FA/2645/2022 ORDER DATED: 12/09/2022

calculation of amount of compensation and hence this Tribunal has no option except to dismiss the claim petition of the petitioner."

4. On observing the same, as referred above, the

Tribunal has held that despite opportunity being provided to

the claimant and his Advocate, they have miserably failed to

lead evidence and has not taken care to see that primary,

basic, necessary and requisite evidence for the purpose of

providing the basic contents narrated in the claim petition,

have not been proved by leading cogent, convincing and

reliable evidence. It has been further observed that, if the

claimant himself is not available before the Tribunal after

registering the claim petition for a longer period of time and

does not lead any evidence, the Tribunal is not able to decide

the quantum portion of the claim petition. It is also observed

that the duty is cast upon the claimant to prove the

negligence on the part of the opponent and incident of

accident and by way of production of certain documents, the

contents of those documents cannot be automatically proved,

which are to be proved by way of leading evidence in

accordance to the provisions of Indian Evidence Act; and

C/FA/2645/2022 ORDER DATED: 12/09/2022

therefore, when the Advocate and the claimant miserably

failed to lead evidence, the Tribunal had no option, but to

decide the claim petition in absence of material on record.

Hence, the learned Tribunal though it fit to dismiss the

petition.

5. It is required to be noted that Motor Accident

Claims Petition was instituted in the year 2013 and the issues

were framed on 02.03.2017. The matter remained pending for

such a long period only for the framing of issues, it would

have been possible because of the long pendency in the

Tribunal, the claimant and the Advocate lost track of the

proceedings of the matter, and because of such delay in the

proceedings before the Tribunal and because of late framing

of issues, it becomes a duty of the Tribunal to issue the notice

to the claimant and his Advocate instructing about the issues

being framed so that claimant could become conscious about

progress in the matter and would prepare for producing

evidence and giving their affidavit for examination-in-chief.

6. The learned Tribunal had observed that

opportunity was granted, but the very observation of the

C/FA/2645/2022 ORDER DATED: 12/09/2022

Tribunal suggests that after a long period, the issues were

framed and thereafter no notice was issued to the claimant or

his Advocate to come forward for production of the evidence.

As has been observed in the judgment, so referred, while

interpreting the provision of social welfare legislation, the

Court 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; and the

applications are to be dealt with for the benefit of the poor

victims, and therefore, it is necessary to take constructive and

positive attitude in interpreting the provisions and

determining the questions before the Court keeping in mind

the aim and object of the benevolent Act. The Tribunal ought

not to have entered into the technicalities and niceties; it

should have adopted a reasonable approach.

7. The learned Tribunal after framing of issues should

have venture that the claimant and his Advocate and even the

Advocates of the opponents are made aware of the progress of

the matter.







      C/FA/2645/2022                                          ORDER DATED: 12/09/2022




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 held 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. The following observations made in the said

judgment, which reads as follows :-

"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

C/FA/2645/2022 ORDER DATED: 12/09/2022

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 there under 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, instead of entering into the technicalities."

9. Thus, in view of the above, the appeal is partly

allowed. The order dated 12.03.2019 passed by the Motor

Accident Claims Tribunal (Main), Mehsana in M.A.C.P. No.314

of 2013 is quashed and set aside and M.A.C.P. No.314 of 2013

C/FA/2645/2022 ORDER DATED: 12/09/2022

is restored to its file of the concerned Tribunal so that

litigating parties may get an opportunity to lead evidence on

record.

10. It is also required to be reminded that the Tribunal

in absence of any evidence from the side of the claimant could

have sought information in Form 54 under Rule 150 of the

Central Motor Vehicles Rules, 1989 and could have treated