Valiben Wd/O Virabhai Manabhai ... vs Ganpatbhai Parvatbhai Labda
2023 Latest Caselaw 2999 Guj

     C/SCA/6569/2023                            ORDER DATED: 18/04/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 6569 of 2023

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          VALIBEN WD/O VIRABHAI MANABHAI VANKAR
                             Versus
               GANPATBHAI PARVATBHAI LABDA
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Appearance:
MR MOHSIN M HAKIM(5396) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                        Date : 18/04/2023

                           ORAL ORDER

1. Challenge in this petition under Article 226/227 of the

Constitution of India is to the order dated 19.11.2022 passed in

M.A.C.M.A. No. 38 of 2022 by the learned Motor Accident Claims

Tribunal (Auxiliary), Dahod at Limkheda (the Tribunal), whereby,

an application, filed under O.9 R.9 of the Civil Procedure Code,

1908 (CPC) by the present petitioners, praying for to set aside the

ex parte order, came to be dismissed. The petitioners have also

challenged the judgment and award dated 31.08.2018 passed in

Motor Accident Claim Petition No. 1019 of 2017 (claim petition)

by the learned Tribunal whereby, the Tribunal was pleased to

reject the said claim petition.

C/SCA/6569/2023 ORDER DATED: 18/04/2023

2. Heard, learned advocate Mr. Mohsin M. Hakim for the

petitioners. It is submitted that the petitioners - claimants had

preferred the claim petition before the learned Tribunal and along

with the claim petition, a list of documents consisting FIR,

Panchnama, Insurance Policy Receipt, Ration Card etc. was

submitted. After issuance of Summons, the opponent Nos. 1 and

2 - respondent Nos. 1 and 2 herein i.e. Driver and the Owner,

appeared through their learned advocate and filed Written

Statement . The insurance company, though had appeared, not

filed any reply. It is submitted that Issues were framed and the

matter remained sine die for a long period and it was only at Exh.

16, the Issues came to be framed and the claim petition,

thereafter, came to be dismissed on 31.08.2018 on the ground

that the evidence has not been produced. The petitioners had

also preferred the M.A.C.M.A. No. 38 of 2022 under O.9 R. 9 CPC

for setting aside the ex parte judgment and award along with

Civil Misc. Application No. 77 of 2020 for condonation of delay.

The said Civil Misc. Application No. 77 of 2020 came to be

allowed, however, M.A.C.M.A. No. 38 of 2022 came to be

dismissed vide impugned order holding that the appeal would lie

against the judgment and award.

3. Learned advocate Mr. Hakim for the petitioners submitted

C/SCA/6569/2023 ORDER DATED: 18/04/2023

that the learned Tribunal, while dismissing the claim petition for

default, has observed about the list of documents produced and

an endorsement put by the insurance company. The learned

advocate for the petitioners stated that there was no substantial

defence from the respondents while the insurance company had

not even placed on record any evidence statement and after a

long period of time, the Issues came to be framed where, the old

Motor Accident Claim Petition No. 457 of 2008, which was

renumbered as Motor Accident Claim Petition No. 1019 of 2017.

It is submitted that the learned Tribunal has made an observation

that the learned Advocate on record for the applicants was

though present before the Tribunal, had not produced any

evidence. It is submitted that the learned Tribunal could have

instructed the Advocate present to produce the evidence by

giving him a notice or by sending notice to the claimants wherein

the cases, the matters get prolonged for non framing of Issues.

The learned advocate for the petitioners submitted that after

framing of Issues, the learned Tribunal ought to have adopted a

magnanimous approach by sending notice or informing the

Advocate to proceed with the matter and in case where the stage

of evidence gets closed, the learned Tribunal could have called

for the information in Form No. 54 under the Central Motor

Vehicle Rules, 1989 to verify the authenticity of the documents

C/SCA/6569/2023 ORDER DATED: 18/04/2023

so produced by the claimants and could have given the judgment

and award, following the directions as laid down in the decision in

Jai Prakash v. National Insurance Co. Ltd. & Others,

rendered by the Apex Court in Special Leave Petition (Civil)

No. 11801-11804 of 2005 on 17.12.2009.

3.1 The learned advocate for the petitioners also referred to the

decision in Bharatbhai Narsinghbhai Chaudhary and Others

v. Malek Rafik Malek Himmatbhai, 2011 (2) GLR 1324 to

submit that no claim petition can be disposed of without being

decided on merits and in case when a prayer is made for

restoration, the learned Tribunal ought to have granted the same.

4. In case of the Bharatbhai Narsinghbhai Chaudhary and

Others (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:

"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

C/SCA/6569/2023 ORDER DATED: 18/04/2023

'Tribunal'. The 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 22 nd November, 2001 and another restoration application is filed on 28th January, 2004, under Order 9, Rule 4 of the Code, wherein, the applicants have described the reasons and tried to justify their case for restoration of the application. On perusal of the papers, it appears that the applicants are poor persons and coming from the

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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)."

4.1 It is further observed in Paragraphs 5.13 and 5.14 of the said

decision 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, instead of entering into the technicalities."

4.2 Here, in the instance case, the learned Tribunal has

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observed that the matter has been pending from the year 2008

but in the order, has not noted as to when the Issues have been

framed. Pendency of the matters would not be because of the

absolute fault of the litigants. It is the lethargic approach of the

Tribunal that the Motor Accident Claim Petitions remained

pending for long period, because of lack of will of the Tribunal to

frame the Issues expeditiously. As laid down in the case of

Bharatbhai Narsinghbhai Chaudhary (supra), no claim

petition can be disposed of without being decided on merits.

Necessary documents were placed on record by the claimants

which were seen by the insurance company and the learned

Tribunal could have decided the claim petition on the basis of the

documents or for utter caution, could have invited the details

from the Police under Form 54 to decide the claim petition. Thus,

in view of the principles laid down in Bharatbhai Narsinghbhai

Chaudhary (supra), and for the reasons given herein above, the

petition deserves to be allowed.

5. In view of the aforesaid observations and discussion, the

petition succeeds and is allowed accordingly. The impugned

order dated 19.11.2022 passed in M.A.C.M.A. No. 38 of 2022 by

the learned Motor Accident Claims Tribunal (Auxiliary), Dahod at

Limkheda and the judgment and award dated 31.08.2018 passed

C/SCA/6569/2023 ORDER DATED: 18/04/2023

in Motor Accident Claim Petition No. 1019 of 2017 are hereby set

aside. The claim petition is restored to its original file. The

learned Tribunal concerned is directed to decide the claim

petition, granting due opportunity to the concerned to file

evidence on record, in accordance with law, as expeditiously as

possible but not later than six months from the date of receipt of

writ of this order.

[ Gita Gopi, J. ] hiren /20