Thakor Bhagiben Wd/O Rameshji ... vs Chaudhary Amratbhai Virabhai
2023 Latest Caselaw 2824 Guj

     C/FA/1183/2023                                 ORDER DATED: 10/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1183 of 2023

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       THAKOR BHAGIBEN WD/O RAMESHJI KAPURJI & 3 other(s)
                           Versus
           CHAUDHARY AMRATBHAI VIRABHAI & 2 other(s)
==========================================================
Appearance:
MR TEJAS P SATTA(3149) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1,4
MASUMI V NANAVATY(9321) for the Defendant(s) No. 5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 10/04/2023

                                ORAL ORDER

1. Mr. Tejas P.Satta, learned advocate for the

appellants states that claimants are challenging the order

of dismissal dated 06.11.2017 passed in MACP

No.262/2012 (Old No.41/2005) by 3rd Motor Accident

Claims Tribunal (Aux.), Mehsana at Visnagar.

2. Mr. Satta submitted that the learned Tribunal

without deciding the matter on merits has dismissed the

claim petition, though their affidavit for examination-in-

chief was produced at Exhibit-19. Mr. Satta states that

the learned Tribunal dismissed the petition on the ground

C/FA/1183/2023 ORDER DATED: 10/04/2023

that reasonable opportunity was given to the applicant to

prove the documentary evidence in support of the claim

petition, but has failed to prove the documentary

evidence. Mr. Satta stated that the learned Tribunal has

observed in the order, of service of notice to opponent

no.2, but has failed to file written statement or contest

the claim petition and though opponent nos.1, 2 and 3

was served, none appeared before the Tribunal; hence,

the claim petition proceeded ex parte against the

opponents.

3. Mr. Satta submitted that as the examination-in-

chief was on record and necessary documents in support

of the claim petition have been filed, the documents were

referred in paragraph-6 in the affidavit under Order 18

Rule 4, and when there is no resistance from the other

side, learned advocate Mr. Satta submitted that the

learned Tribunal ought to have believed and exhibited the

same. Further, if the documents had not inspired any

confidence, the learned Tribunal should have called for

the documents in Form-54 from the Investigating Officer

C/FA/1183/2023 ORDER DATED: 10/04/2023

to verify the authenticity of the photocopies produced in

list along with affidavit.

4. Mr. Satta stated that it is a fatal case, hence all

the necessary documents were on record, which could be

received by the claimant only from the police authorities;

hence, there was no need to even doubt the documents so

produced; in spite of that, the learned Tribunal came to

the conclusion that the claimant has failed to prove issue

no.1, and in fact, on record, there was no party to resist

the evidence so produced by examination-in-chief at

Exhibit-19.

5. Advocate Ms. Masumi V.Nanavaty submitted

that the learned Tribunal was right in disposing of the

matter, since the documents had not been proved. She

states that though the Insurance Company has been

served, they have not been vigilant to deal with the

matter; however, she prays that opportunity be granted

to all concerned to adduce evidence on record.

C/FA/1183/2023 ORDER DATED: 10/04/2023

6. The learned Tribunal could have followed the

judgment in the case of Jai Prakash Vs. National

Insurance Company Ltd., reported in (2010) 2 SCC

607 and could have decided the compensation relying

upon Form-54. In the case of Bharatbhai Narsinghbhai

Chaudhary & Ors. v. Malek Rafik Malek Himantbhai

Malek & Ors., reported in 2011 (2) GLR 1324, it has

been held as under:-

"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 instead of entering into the technicalities."

7. The learned Tribunal, in spite of observing that

the proceedings are ex parte to be dealt with, and when

the examination-in-chief has been produced by Exhibit-19

C/FA/1183/2023 ORDER DATED: 10/04/2023

and in support, documentary evidence has been referred

in the affidavit, the learned Tribunal failed to appreciate

the fact that those documents have been received by the

claimants from the police authorities, which the Tribunal

itself is duty bound to have called for in Form-54 by

following the judgment of Jai Prakash Vs. National

Insurance Company Ltd. (supra). There is an absolute

error on the part of the Tribunal. The Tribunal itself has

failed to follow the mandated duty as laid down in the

case of Jai Prakash Vs. National Insurance Company Ltd.

(supra).

8. Since the Insurance Company has also prayed

for an opportunity to produce the evidence on record, the

same is required to be granted for doing substantial

justice.

9. In the result, the order dated 06.11.2017

passed in MACP No.262/2012 (Old No.41/2005) by 3 rd

Motor Accident Claims Tribunal (Aux.), Mehsana at

Visnagar is quashed and set aside and matter is ordered

C/FA/1183/2023 ORDER DATED: 10/04/2023

to be restored in the file of the concerned Tribunal with

direction that the same be concluded within a period of 6

months by granting opportunity to all the parties on

record to adduce evidence and the matter be disposed of

only on merits.

10. The present appeal stands disposed of

accordingly. Record and Proceedings, if any, be sent back

to the concerned Tribunal.

Direct service is permitted.

(GITA GOPI,J) Pankaj