Vikramsinh Bhavansinh Parmar vs Pagi Bharatsinh Jesingbhai
2023 Latest Caselaw 6354 Guj

                                                                                     NEUTRAL CITATION




     C/FA/3837/2023                                JUDGMENT DATED: 31/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3837 of 2023

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 as No
     to the interpretation of the Constitution of India or any
     order made thereunder ?

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                      VIKRAMSINH BHAVANSINH PARMAR
                                  Versus
                        PAGI BHARATSINH JESINGBHAI
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Appearance:
KARTIKKUMAR G BAROT(9453) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 31/08/2023
                             ORAL JUDGMENT

1. By way of this Appeal, the Appellant-claimant has challenged the judgment and award dated 02.08.2019 passed by the learned Motor Accident Claims Tribunal (Main), Mahisagar at Lunawada, in M.A.C.P. No.1314 of 2017.

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2. Learned Advocate for the appellant-claimant has relied on the decision of this Court in the case of Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324 and submitted that the learned Tribunal was required to decide the case on merits. It is further stated that the learned Tribunal has erroneously dismissed the Claim Petition which had remained pending sine die for more than ten years as the M.A.C.P. was initially numbered as 1649 of 2007 which later came to be re-numbered as M.A.C.P. No.1314 of 2017, where the issues were framed below Exhibit 15 on 14.11.2018. It is further submitted that no fault can be laid on the claimant as the matter was not ready for a long period and therefore, the claimant would have lost track of the proceedings and even could not have remained in continuous contact with the Advocate on record. It is also submitted that instead of dismissing the matter, the learned Tribunal could have decided the matter on the basis of the documentary evidence which would have been produced at the time of filing of the Claim Petition and thus, urged that the matter

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be remanded to the learned Tribunal for deciding the same on merits. In addition, it is submitted that the claimant hails from a very remote area and thus would not have been in a position to attend the Court at the relevant time and thus, for the absence of learned Advocate in the proceedings, the claimant should not suffer; the learned Tribunal could have closed the right of the claimant and could have proceeded for recording of the evidence of the respondent.

3. Heard learned Advocate for the appellant-claimant; perused the material on record. The learned Tribunal while dismissing the matter for default has observed that the case is more than ten years old and has also referred to an administrative resolution about 10 years pendency of the matter. However, no evidence was recorded for calculation of compensation to prove the accidental injury. Further, it was also observed that the Advocate for the appellant had constantly remained absent and had not tried to proceed diligently.

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4. It appears that the matter on being transferred to Lunawada sub-station came to be re-numbered. Initially, the matter would have been instituted as Old M.A.C.P. No.1649 of 2007 and according to the observations made in the order, the claimant was informed by way of a communication, i.e. Office Outward No.32 of 2019 dated 20.05.2019 about the pendency of the matter. The matter had remained pending from the year 2007 to 2019 and the issues were framed on 14.11.2018.

5. This Court would like to refer to the decision of this Court in the case of Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324 and the relevant part of the 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 powers of appeal given to the High Court under the Act against the decision of the Tribunal constituted under the Act, will definitely lead

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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)

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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 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 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)."

6. It is the lethargic approach of the Tribunal that the M.A.C.P. remained pending for a long period, because of lack of will of the learned Tribunal to frame the issues expeditiously. Necessary documents were placed on record by the claimant 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.

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7. As the Claim Petition has not been decided on merits, the present Appeal is allowed and the judgment and award 02.08.2019 passed by the learned Motor Accident Claims Tribunal (Main), Mahisagar at Lunawada, in M.A.C.P. No.1314 of 2017 is quashed and set aside. M.A.C.P. No.1314 of 2017 is ordered to be restored on the File of the learned Tribunal to be decided on merits. An opportunity be granted to all the parties to provide the evidence on record. All the parties are directed to co-operate with the learned Tribunal and to conclude the petition within a period of six months from the date of receipt of writ of the order of this Court. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.

Sd/-

(GITA GOPI, J) CAROLINE