Bhuriben Wd/O Kalubhai Manabhai ... vs Mannanbhai Lajarashbhai Ninama
2023 Latest Caselaw 5161 Guj

     C/FA/1676/2019                                ORDER DATED: 04/07/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1676 of 2019

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               BHURIBEN WD/O KALUBHAI MANABHAI DANGI
                               Versus
                  MANNANBHAI LAJARASHBHAI NINAMA
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3,4,5,6
MS LILU K BHAYA(1705) for the Defendant(s) No. 3
MUHAMMADYUSUF M KHARADI(9509) for the Defendant(s) No. 1
UNSERVED EXPIRED (N) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 04/07/2023

                                ORAL ORDER

1. Heard Mr. Mohsin M.Hakim, learned advocate

for the applicants and Ms. Lilu K.Bhaya, learned advocate

for respondent no.3.

2. The challenge to the order of dismissal for

default dated 16.02.2017 in MACP No.1992 of 2004 by

M.A.C.T (Aux.) Panchmahals at Godhra is given by the

applicants, as widow and elder son of the deceased with

four other minors, who had preferred the claim petition.

3. Mr. Mohsin M.Hakim, learned advocate for

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the applicants submitted that on 16.01.2017, the issues

were framed by the Tribunal and observing that the

claimants have never produced any basic documents at

the time of filing of the claim petition, dismissed the claim

petition on the ground that petitioner had not stepped

into the witness box. Mr. Hakim submitted that it was

open for the Tribunal to call for information in Form-54

under the Central Motor Vehicles Act from the

Investigating Officer for the basic documents, which

would be in the form of FIR, Panchnama and the charge-

sheet, as it was a fatal case of deceased - Kalubhai

Manabhai Dangi, who faced with vehicular accident on

15.07.2004, when he was driving a Jeep being Jeep No.GJ-

08-1381 from village Chhapri on Dahod - Jhalod highway,

where the opponent no.1 came by driving Jeep No.GAD

5522 rashly and negligently with excessive speed, lost

control over his vehicle, and thereby Jeep left the road

and came on extreme wrong side and dashed with the

jeep of the deceased, and because of the accident, on

account of grievous injuries sustained by the deceased on

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different parts of the body, thereby succumbed to death.

3.1 Advocate Mr. Hakim submitted that the learned

Tribunal failed to consider, that the applicant is a widow

with four minor children residing in village - Vavdi Buj,

which is an interior area in Godhra Taluka, and would not

have an easy access to the Court, where the matter has

remained pending for considerable long period without

any framing of issues. Mr. Hakim stated that the

applicant had also moved an Application at Exh.10 for

conversion of the claim petition under section 163A to

section 166 of the M.V. Act, which shows her involvement

and vigilance in her case, and the application came to be

allowed on 30.10.2012. The Tribunal has also observed

that a notice, Exh.19, on 09.01.2017, had returned

unserved. Mr. Hakim submitted that had the notice been

served, and the claimants would have remained absent,

then that would amount to some negligence on her part,

but since notice has returned unserved, it would mean

that the applicant had no knowledge of the notice sent by

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the Court.

3.2 Referring to the judgment of the Apex Court in

case of Jaiprakash Vs. National Insurance Company

Limited And others, reported in (2010) 2 SCC 607,

Advocate Mr. Hakim submitted that being a fatal case,

the learned Tribunal could have relied upon the

documents by inviting information under Form-54 and

could have decided the case on merits, and should not

have even waited for the claimants to have entered into

the witness box.

3.3 Learned Advocate Mr. Hakim placed reliance

on the judgment of Bharatbhai Narsinghbhai

Chaudhary and Others v. Malek Rafik Malek

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

wherein 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

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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 '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

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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 22nd November, 2001 and

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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)."

3.4 Mr. Hakim stated that no claim petition should

be dismissed without deciding the case on merits, and

dismissal for non-prosecution is bad in law, and, thus,

stated that liberty so reserved to file a petition afresh

would affect the right of the applicants to claim interest

on the compensation amount, as the claim petition to be

filed again would be registered on the date when it would

be moved, though the learned Tribunal has clarified, that

would not affect the provisions of law of limitation, but

Mr. Hakim stated that the petition would be appreciated

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from the date of its filing, and, therefore submitted that

though such liberty is granted, it would apparently affect

the right of the applicants to claim the interest.

4. Ms. Lilu K.Bhaya, learned advocate for

respondent no.3, vehemently objecting the submissions

stated that it is negligence of the claimants that has led to

dismissal, and therefore contended that no concession

should be granted, as that would also equally affect the

Insurance Company who would be burdened with the

interest on any compensation, if at all, granted to the

claimants; thus, submitted that necessary observation is

required to be made, about the right of the claimant to

claim interest for the period of their default.

5. 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

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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

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case on merits with a view to provide substantial justice, instead of entering into the technicalities."

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 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.54 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 hearing on merit to do justice.

7. The claimant is a widow who resides in village

- Vavdi Buj with the responsibility of five children. She

would probably be working hard to take care of the

minors; as in Godhra Taluka, they would be unorganized

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labourers and would be moving around for labour work

and, therefore, would loose contact with their Advocate;

most probably in cases, where Motor Accident Claim

Petitions lie pending for a long period without any issues

being framed, as in the present case the issues were

framed on 06.01.2017, and the case was dismissed for

default within a period of one month and 10 days i.e. on

16.02.2017. If the Tribunal could have waited for 13 years

to frame the issues to decide the matter, it could have

waited a little longer for the claimants to come and

produce the evidence on record, or rather the learned

Tribunal itself could have followed the direction laid down

in Jaiprakash (supra) and could have granted the

compensation amount.

8. Taking into consideration the reasons given

hereinabove, the learned Tribunal has failed to take into

consideration the object of benevolent act. The learned

Tribunal is always required to decide the claim petition

on merits, and in a condition if at all, after giving a

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reasonable time, the claimant himself would not be in a

position to adduce evidence, then the learned Tribunal

ought to have called for Form No.54 from the police for

verifying the facts and should have granted the

compensation amount accordingly. The Tribunal ought to

have kept in mind that the rules are made to strengthen

the powers of the Court/Tribunal. Every effort should be

made to hear on merits after the stage of framing of

issues.

9. Thus, keeping in mind the provisions of the

Motor Vehicles Act, 1988 to provide adequate

compensation to the claimants for the injury and loss

sustained, therefore, the learned Tribunal at the least, is

expected to consider the facts and circumstances of the

case especially in the case of minors / widows and deliver

substantial justice instead of entering into the niceties of

the matter. The learned Tribunal was required to adopt a

reasonable approach and ought to have granted sufficient

opportunity to produce the evidence on record and also

should have exercised due diligence by issuing notice to

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the Advocate appearing for the claimants after framing of

issues and even to the claimant/s who could have

received the information about the matter being ready for

adducing of evidence.

10. In the result, the order dated 16.02.2017

passed in MACP No.1992 of 2004 by M.A.C.T (Aux.)

Panchmahals at Godhra is quashed and set aside, and the

matter is remanded back to the MACT Godhra to decide

the matter afresh on all issues.

(GITA GOPI,J) Pankaj