Ruksana Umarbhai Rayma vs Daud Adam Bhatti
2023 Latest Caselaw 160 Guj

     C/FA/2915/2021                               JUDGMENT DATED: 06/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2915 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1    Whether Reporters of Local Papers may be allowed                    No
     to see the judgment ?

2    To be referred to the Reporter or not ?                             No

3    Whether their Lordships wish to see the fair copy                   No
     of the judgment ?

4    Whether this case involves a substantial question                   No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                        RUKSANA UMARBHAI RAYMA
                                 Versus
                           DAUD ADAM BHATTI
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR JITENDRA H SINGH(3199) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1,3
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 06/01/2023

                             ORAL JUDGMENT

1. Heard Mr. Hiren Modi, learned advocate for the appellant - original claimant and learned advocate Mr. Jitendra Singh, learned advocate for respondent No. 2. Though served, no one appears for respondent Nos.1 and 3.

C/FA/2915/2021 JUDGMENT DATED: 06/01/2023

2. By way of this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act"), the appellant have challenged the judgment and award dated 19.01.2018 passed by the learned Motor Accident Claims Tribunal (Auxi-3), Gandhidham- Kachchh passed in Motor Accident Claims Petition No. 315 of 2015.

3. Learned advocate Mr. Hiren Modi for the appellant has submitted that the learned Tribunal has passed the judgment and award, which is improper, illegal and unjust and against the provisions of law and facts and circumstances of the case and therefore, it may be quashed and set aside. He further submitted that the learned Tribunal has committed very serious error while dismissing the claim petition on the ground of limitation and therefore, the this appeal may be allowed.

4. Learned advocate Mr. Jitendra Singh for the respondent No. 2 has opposed this appeal and submitted that learned Tribunal has passed just and proper award and judgment.

5. Having heard the learned advocate appearing for the parties and on perusal of the impugned judgment and award, it clearly appears that relying upon the judgment of the Apex Court in the case of Purohit and Company vs. Khatoonbee and Anr. reported in (2017) 4 SCC 783, the learned Tribunal has rejected the claim on the ground that it was filed after a period of approximately 5 years and more. The fact remains that the accident took place on 23.02.2010, whereas the claim petition was preferred on 31.12.2015.

C/FA/2915/2021 JUDGMENT DATED: 06/01/2023

6. Without expressing any opinion on merits of the case, it would be appropriate to refer to the judgment of the Apex Court in Purohit & Company (supra), wherein it is clearly held as under-

"14. The question of responsibility would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extracted hereunder:

                 "4. That the Petitioners are                           poor person and they
                 have no knowledge about the                             Law.    Also    the
                 Respondent has not pay the                             single pie towards
                 any compensation."


7.      In     facts     and        circumstances               of   this      case therefore, it

cannot be said that the claim was not live and that the claim petition deserves to be dismissed only on the ground of limitation. It appears from the award that the Tribunal has committed error in coming to the conclusion considering the facts and circumstances of the case on hand that the claim petition was not preferred within reasonable period. With respect, the learned Tribunal has not appreciated the ratio laid down by the Apex Court in the case of Purohit & Company (supra).

8. In light of the aforesaid therefore, the impugned judgment and award is hereby quashed and set aside and the proceedings of MACP No. 315 of 2015 are remanded back

C/FA/2915/2021 JUDGMENT DATED: 06/01/2023

and are restored back to the file of learned Motor Accident Claims Tribunal (Auxi-3), Gandhidham- Kachchh. The Tribunal is hereby directed to give priority to the same and rehear the parties and decide the claim petition afresh in accordance with law. Learned advocates for both the sides shall not take unnecessary adjournments. The trial shall be concluded within six months.

9. The appeal is allowed. R & P be sent back to the concerned Tribunal, if any.

(A. C. JOSHI,J) prk