Gujarat High Court
Shaileshbhai Pratapbhai Solanki vs Joshi Naleenbhai Heeralal on 9 March, 2023
Bench: Gita Gopi
C/FA/3505/2019 ORDER DATED: 09/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3505 of 2019
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SHAILESHBHAI PRATAPBHAI SOLANKI
Versus
JOSHI NALEENBHAI HEERALAL
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Appearance:
MR JA ADESHRA(107) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/03/2023
ORAL ORDER
1. Challenge is given to the judgment dated
9.7.2018 passed by MACT, Nadiad in MACP
no.326 of 2009, whereby the petition came to
be dismissed observing that the claimant
failed to produce any type of documents
inspite of number of opportunities provided
by the Tribunal. Learned advocate submitted
before the Tribunal that he was not in
contact with the client since long.
2. Since the matter was more than 9 years old,
the evidence of the claimant was closed by
order dated 9.7.2018. It appears that on the
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very same day, on closing the stage of
evidence of the claimant, the learned
Tribunal dismissed the claim petition. The
Tribunal ought to have placed the matter for
the evidence of the respondent instead of
dismissing the claim petition outright on
the very same day.
3. In failure of claimant producing any
evidence, the Tribunal ought to have called
for the information under Form 54 of the
Motor Vehicle Act as laid down in the case
of Jai Prakash v. National Insurance Company
Limited, reported in (2010) 2 SCC 607.
4. Advocate Mr. Ankit Shah submits that the
matter was pending for more than 9 years and
neither the claimant, nor his advocate
appeared for producing the evidence and
thus, states that the Tribunal was not
required to wait for the claimant for
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indefinite time and thus, under the
circumstances, states that dismissal order
is just and reasonable.
5. Advocate Mr. Adeshra states that the
claimant is a student and was aged about 18
years at the time when the claim petition
was filed and was a minor when the accident
took place and had sustained 34% disability
for the body as a whole. Mr. Adeshra states
that after instructions of the counsel on
record, of no contact with his client, the
learned Tribunal ought to have sent a notice
to the claimant and states that the learned
Tribunal has referred to the proposition of
law that after framing of issues, the
Tribunal was required to scrupulously follow
rather than dismissing the matter on default
by making reference of the judgment reported
in 2022 ACJ 1261 (Guj).
C/FA/3505/2019 ORDER DATED: 09/03/2023
6. In the decision in the case of Bharatbhai
Narsinghbhai Chaudhary & Ors. v. Malek Rafik
Malek Himmatbhai, reported in 2011 (2) GLR
1324, the Court has observed that the
Tribunal has no power to dismiss the claim
petition for default. It would be incumbent
upon the Tribunal to issue a notice to the
claimants and the Advocates appearing on
record after framing of the issues for
providing the Affidavit in the form of
examination-in-chief supported by the
documents.
7. It is necessary to reproduce relevant part
of the decision in the case of Bharatbhai
Narsinghbhai Chaudhary (supra) which is 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
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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)
C/FA/3505/2019 ORDER DATED: 09/03/2023
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 22
nd November, 2001 and another
restoration application is filed
on 28 th 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)."
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8. The claimant was minor at the time of the
accident who suffered 34% disability for the
body as a whole. The counsel for the
claimant has merely addressed of his non-
contact with his client. However, no notice
was served by him, nor any notice was issued
by the Tribunal to the claimant of the
submissions made by the counsel on record.
The claimant had no knowledge about the said
fact and the development on record to
diligently pursue the matter.
9. The Tribunal would have no power to dismiss
the claim petition for default. The learned
Tribunal was knowing about this proposition
of law, inspite of that fact, has dismissed
the matter stating it to be a default of the
claimant. The Tribunal could have decided
the matter on merits by calling for the
documents through Form-54 rather could have
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sent a notice to the claimant directing him
to appear and produce the documents in
support of his case.
10. In view of the above proposition of law laid
down in the referred judgments, MACP
no.326/09 is ordered to be restored back on
the file of the concerned Tribunal with a
direction that the matter be disposed of
within a period of four months. Accordingly,
the present appeal is disposed of.
(GITA GOPI,J)
Maulik
