Kamleshbhai Shantilal Patel vs Ashokkumar Bachubhai Pakhali
2023 Latest Caselaw 2940 Guj

     C/SCA/6476/2020                               ORDER DATED: 13/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6476 of 2020

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                        KAMLESHBHAI SHANTILAL PATEL
                                  Versus
                       ASHOKKUMAR BACHUBHAI PAKHALI
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Appearance:
MR DILIP B RANA(691) for the Petitioner(s) No. 1,2
MR DN PANDYA(545) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 4
UNSERVED EXPIRED (N) for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 13/04/2023

                               ORAL ORDER

1. The petitioners are the legal heirs of deceased

Shantilal Jibhaibhai Patel, who was arraigned as

respondent no.2 being the owner of the involved vehicle.

The heirs are challenging the judgment and award on the

ground that Shantilal Jibhaibhai Patel died on 08.12.2010,

stating that the award is a nullity and, therefore, no

charge can be created on the estate of the deceased and

thus, prayer is made to quash and set aside the order

passed below Exh.-22 by the MACT (Aux.), Anand in

Execution Application No.66 of 2017.

C/SCA/6476/2020 ORDER DATED: 13/04/2023

2. Advocate Mr. Dilip B.Rana, learned advocate

for the petitioners, relied on the judgment of Mst. Bibi

Rahmani Khatoon And Ors. Vs. Harkoo Gope And

Others., reported in AIR 1981 Supreme Court 1450, to

submit that, in paragraph-10, the concept of abatement

known to civil law, has been explained and state that if

the party to a proceeding either in trial Court or any

appeal or revision dies and the right to sue survives or a

claim is to be answered and the legal heirs and legal

representatives who have to be substituted, and failure to

do so would result into abatement of the proceedings.

3. Per contra, Advocate Mr. D.N. Pandya for

respondent no.1 states that the deceased Shantilal

Jibhaibhai Patel was represented by a Lawyer - Mr. J.R.

Trivedi on record, and Order-22 Rule 10A of the Code of

Civil Procedure, 1908 states that whenever a party is

represented by a pleader, and, if he comes to know about

the death of the party, he has to inform to the Court, and

C/SCA/6476/2020 ORDER DATED: 13/04/2023

the Court shall there upon give notice to the other party;

thus, Mr. Pandya submitted that it was responsibility of

Advocate on record to inform the death of the concerned.

4. Section 155 of the Motor Vehicles Act, 1988

has made provisions regarding the effect of death on

certain causes of action, which says that even if death of

a person has occurred after the rise of cause of action,

then that would not be a bar to the survival of any cause

of action arising out of such events against his estate or

against the insurer.

4.1 Section thus, clarifies that despite anything

provided in section 306 of the Indian Succession Act,

1925, the death of a person, in whose favour a certificate

of insurance had been issued, if it occurs after happening

of an event which has been given rise of the claim under

the provisions of the Chapter in which the section gets

included, shall not be a bar to the survival of any cause of

action arising out of such event against his estate or

C/SCA/6476/2020 ORDER DATED: 13/04/2023

against the insurer. Similarly, taking this provision,

drawing an analogy and to be consistent with the

provisions of Order 22 Rule 10A, it was a duty of the

Advocate on record to inform about the death of the

client, which he failed to do so, and, thus thereafter the

judgment and award was drawn. The legal heirs now

cannot agitate that no charge can be created on the

estate of the deceased.

5. Since the cause of action for the claim petition

has arisen prior to the death of Shantilal Jibhaibhai Patel

and he was made party respondent no.2 in MACP

No.4739 of 2006, the claimants are entitled to proceed

against the estate of the deceased. Hence, the petition

fails merit, as challenge given to the order passed below

Exhibit-22 in Execution Application No.66 of 2017 is not

sustainable. Hence, the present petition stands rejected.

Any interim stay granted earlier stands vacated. Rule is

discharged.

(GITA GOPI,J) Pankaj