Kanubhai Mafatbhai Parmar vs Thakorbhai Ambalal Patel
2023 Latest Caselaw 1679 Guj

     C/FA/2282/2018                               ORDER DATED: 20/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2282 of 2018

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                      KANUBHAI MAFATBHAI PARMAR
                                Versus
                  THAKORBHAI AMBALAL PATEL & 1 other(s)
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Appearance:
MS RV ACHARYA(1124) for the Appellant(s) No. 1
MR. RAHUL R DHOLAKIA(6765) for the Defendant(s) No. 2
NOTICE SERVED BY DS for the Defendant(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 20/02/2023

                               ORAL ORDER

1. Ms.R.V.Acharya, learned advocate for the

appellant submits that MACP No.31 of 2008 was filed

claiming compensation, as the claimant sustained injuries

in the motor accident.

2. Learned advocate Ms.Acharya submits that

learned Tribunal disallowed MACP No.31 of 2008 vide order

dated 18.12.2017 observing that the claim petition is

pending since 2008 and reasonable opportunity has been

given to the claimant and his advocate, but not remained

present to proceed with the matter; the claimant has not

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submitted any evidence as per the provisions of the

Evidence Act; the disability certificate, insurance policy and

the incident of accident is not properly proved according to

law with material legal evidences, dismissed the application.

The claim petition came to be disallowed due to lack of chan

of evidences and due to the default of the claimant as the

claimant was intentionally avoiding the matter and due to

negligence of the claimant, observing that the other side has

to bear the costs of proceedings and the Tribunal has to

spend many papers and inks etc after the matter. Learned

Tribunal presumed that the claimant is not interested to

proceed with the matter. Thus, learned Tribunal found no

other alternative but to disallow the claim petition in default

of the claimant.

3. In case of the Bharatbhai Narsinghbhai

Chaudhary and Others v. Malek Rafik Malek

Himmatbhai reported in 2011 (2) G.L.R. 1324, it has been

held that the learned Tribunal has no power to dismiss the

Claim Petition for default taking into consideration the

C/FA/2282/2018 ORDER DATED: 20/02/2023

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 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 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

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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 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 appears 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)."

4. In the case of Bharatbhai Narsinghbhai

Chaudhary (supra), it has been held in Paragraphs 5.13 and

5.14 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

C/FA/2282/2018 ORDER DATED: 20/02/2023

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."

5. Learned advocate Ms.Acharya submits that there

cannot be any dismissal of MACP Petition for want of

prosecution since the Tribunal has no power to dismiss the

MACP without giving findings on merits.

6. In the case of Sunil Shivran @ Sevaram Rabari

v. Nirmalsing Triloksing & Others reported in 2019 (1)

G.L.R. 694, it has been held that the claim petition cannot

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be dismissed for default. It is the duty of the Tribunal to

award just and reasonable compensation based on material

available on record. The Tribunal has to call for relevant

information in Form No.56 from the Investigating Agency.

The law permits to record evidence by affidavit. When the

claim petition gives details of claim, nature of accident, the

Tribunal is required to award just compensation and

further, no matter can be disposed of without doing justice.

7. In the case of Joshi Rajendrakumar Popatlal v.

Thakor Ramnaji Hamirji and Others reported in 2019 (2)

G.L.R. 1508, it has been held that the Tribunal cannot

dismiss claim petition on the ground that the claimant has

not produced driving license, R.C. Book or Insurance policy

of vehicle involved in accident. The Tribunal is required to

call for such information from the Investigating Agency. It is

mandatory for the Investigating Agency to collect such

information and forward it to the Tribunal in Accident

Information Report in Form 54 under Rule 150 within 30

days. The Tribunal is required to treat the said report as

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application for compensation and award just and

reasonable compensation to the claimant without waiting

for filing of claim petition. The Court disapproved the

conduct of the Tribunal in not calling for said information

from the Investigating Agency and the order of the Tribunal

was quashed and set aside. It was also held that the

claimant may disclose the said information only if he is

aware. The disclosure in the claim petition by the driver,

owner and insurer of the offending vehicle is sufficient. The

owner and driver though served with summons did not

appear, the insurance company appeared but did not file a

written statement. It was also held that there was no reason

for the Tribunal to dismiss the claim petition but the

Tribunal is required to call for Accident Information Report

in Form 54 from the Investigating Officer.

8. In view of judgment of Bharatbhai Narsinghbhai

Chaudhary (supra), the matter requires to be remanded

back and hence, the judgment and award dated 18.12.2017

in MACP No.31 of 2008 is quashed and set aside with the

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direction that the MACP No.31 of 2008 be restored to the file

of the concerned Tribunal and be disposed of in accordance

with merits after issuance of notice to both the parties and

their advocates on record. The exercise of hearing the

parties may be concluded within 5 (five) months on receipt

of writ of this Court.

9. With aforesaid, the present appeal stands

disposed of.

(GITA GOPI,J) H.M. PATHAN