Gujarat High Court

Sureshbhai Maganbhai Bariya vs Budhiyabhai Tidiyabhai Patel on 11 July, 2023

Bench: Gita Gopi

      C/SCA/11431/2023                                 ORDER DATED: 11/07/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11431 of 2023

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                         SURESHBHAI MAGANBHAI BARIYA
                                    Versus
                         BUDHIYABHAI TIDIYABHAI PATEL
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Appearance:
NISHIT A BHALODI(9597) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 11/07/2023

                                  ORAL ORDER

1. Mr. Nishit A.Bhalodi, learned advocate

for the petitioner submitted that the claim

petition was filed, which was listed as Motor

Accident Claim Petition No.699 of 2009, and

because of the creation of sub-divisions in the

District, the claim petition was transferred to

Limkheda Court, and therefore, it was renumbered

as MACP No.1195 of 2017.

2. Advocate Mr. Bhalodi submitted that the

learned Tribunal, Dahod at Limkheda dismissed the

petition on 24.01.2019 on the ground of lack of

C/SCA/11431/2023 ORDER DATED: 11/07/2023

evidence observing that the statement on oath was

not submitted by the applicant and in support

thereof no documentary evidence was produced

throughout the proceeding, and, the stage of the

parties were closed subsequently, as were not

present in the Court. The learned Tribunal

observed that the matter was of 2009, for want of

prosecution and for lack of evidence, dismissed

the claim petition.

3. Relying on the judgment of Bharatbhai

Narsinghbhai Chaudhary and Others v. Malek Rafik

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

1324, Mr. Bhalodi submitted 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:-

C/SCA/11431/2023 ORDER DATED: 11/07/2023

"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

C/SCA/11431/2023 ORDER DATED: 11/07/2023

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

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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 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)."

4. The fact, which requires to be noticed

is that the issues were framed below Exhibit-8

only on 08.10.2018, while the claim petition

remained pending before the Court from the year

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2009 without being decided. The learned Tribunal

ought to have observed that the applicant is a

person, who is residing in District - Dahod and

is an unorganized labourer, who would have to

move around for his work; such applicant may not

have sufficient time to regularly attain the

Court proceedings. It is also required to be

noted that the claim petition was filed when the

applicant was at the age of 18 years and now he

attains the age of 33 years.

4.1 The learned Tribunal has observed that

the order below NFL application was passed in

absence of the parties. That would suggests that

the necessary documents would have been produced

on record during the time of filing of the claim

petition.

5. In the case of Bharatbhai Narsinghbhai

Chaudhary (supra), it has been held in Paragraphs

5.13 and 5.14 as under :-

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"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.

C/SCA/11431/2023 ORDER DATED: 11/07/2023

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."

6. 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

require to decide the claim petition on merits,

and if at all, after giving a 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.

C/SCA/11431/2023 ORDER DATED: 11/07/2023