Gujarat High Court
Pratapbhai Bhemabhai Pagi vs Bhikhabhai Ramabhai Machar on 12 September, 2023
Bench: Gita Gopi
NEUTRAL CITATION
C/SCA/8567/2023 ORDER DATED: 12/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8567 of 2023
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PRATAPBHAI BHEMABHAI PAGI
Versus
BHIKHABHAI RAMABHAI MACHAR
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Appearance:
MR M A CHAUHAN(11262) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/09/2023
ORAL ORDER
1. This petition is filed by the petitioners being
aggrieved by the order of dismissal of default of
M.A.C.P. No.29 of 2004 passed on 22.06.2005 by the
learned Motor Accident Claims Tribunal, Panchamahal
at Godhra. A Restoration Application was also filed
as M.A.C.M.A. No.336 of 2018 with the delay
condonation application. The matter was kept for
preliminary hearing for the application moved to
review the order passed below Exhibit 1 in
M.A.C.M.A. No.336 of 2018.
2. The learned Motor Accident Claims Tribunal,
Panchamahals at Godhra had rejected the application
on 03.09.2022 observing that it did not find any
illegality in the order dated 08.09.2021 passed below
Exhibit 1 in M.A.C.M.A. No.336 of 2018 where the
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Court was not inclined to condone the delay of 4745
days caused in preferring the Restoration Application
observing that the aggrieved could have taken
recourse before a higher forum and the scope of
review is very limited.
3. It was also observed in the order that as per the
record, the petitioners had filed a M.A.C.P. No.29 of
2004 which came to be dismissed on 22.06.2005. The
Restoration Application was filed after a delay of
4745 days vide M.A.C.M.A. No.336 of 2018. The
Tribunal did not find any reason to condone the
inordinate delay and therefore, the learned Tribunal
rejected the application. The learned Tribunal thus
came to conclude that no review of such order is
permissible and the learned Tribunal while observing
the conduct of the petitioners called them habitual
persons who knock the door of the Tribunal again
and again and therefore, such attempt of the
petitioners was found to be thrown out with costs, to
be quantified for frivolous and vexatious litigation,
but considering the poor status of the petitioners, no
cost was imposed.
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4. The learned Tribunal referred to the decision of this
Court in Special Civil Application No.10663 of 2019
(Madhuben W/o. Bhikhbhai Bhakharbhai Pavar v.
Avadh Rajbhai Kheraru Rjbhar) observing that the
High Court has not passed any order except granting
liberty to file appropriate Restoration Application
before the learned Tribunal and also came to the
opinion that such judgment would not assist the
claimant.
5. It requires to be noted that M.A.C.P. No.29 of 2004
came to be dismissed for default on 22.06.2005 by
the learned M.A.C.T., Panchmahal at Godhra.
However, the order of dismissal is not a reasoned
order, and, because the applicant's Advocate
remained absent, the claim petition came to be
dismissed. On 20.08.2004, it was observed for the
respondents No.1 and 2, though duly served,
respondents No.4 and 5 were not present and hence,
the trial against respondents No.4 and 5 were ordered
to proceed ex-parte. In an application under
Section 163A of the Motor Vehicles Act, 1988, the
claimants were not required to plead or establish
permanent disablement in respect of which the claim
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has been made or it was due to any wrongful act or
neglect or default of the owner of the vehicle or
vehicles concerned or of any other person. The
presence of the Advocate was not at all necessary as
the compensation amount to be granted was on the
basis of the structured schedule. No claim petition
can be dismissed for default without hearing on
merits, much less because of the absence of the
Advocate. The petitioners after handing over their
case to the Advocate on record would always be at
the mercy of the Advocates. Because of the
negligence of the Advocate on record, the litigants
have to suffer. It appears that learned Advocate Mr.
A.D. Satnami had filed the M.A.C.P. and it was
because of his absence that the claim petition was
dismissed for default. The Restoration Application
was moved in the year 2018 as M.A.C.M.A No.336 of
2018 and the delay was not condoned, the Review
Application was filed by learned Advocate Mr. A.D.
Satnami. It is the failure on part of the Advocates
on record that the claimants could not get justice
from the Court of law. However, it is to be kept in
mind that the claim petitions cannot be dismissed
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without hearing on merits, and incase where the
claimants could not appear, the learned Tribunal was
required to call for the necessary documents from the
Police while hearing. In the present case, the prayer
was made under Section 163A of the M.V. Act, the
compensation was on the basis of a structured
formula and when the respondents had failed to
appear, an ex-parte order was passed on 20.08.2004.
The learned Tribunal could have decided the petition
as the Insurance Company was very well on the
record of the case.
6. In the case of Bharatbhai Narsinghbhai Chaudhary
and Others v. Malek Rafik Malek Himmatbhai
reported in 2011 (2) G.L.R. 1324 and the relevant
part of the 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
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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
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)
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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)."
7. The learned Tribunal ought to have considered that it
was a matter of 2004. Considering the object of the
Act, the learned Tribunal ought to have not dismissed
the matter and could have condoned the delay by
keeping open the question of interest on the
compensation amount.
8. As the Claim Petition has not been decided on merits,
the present petition is allowed and order below
Exhibit 1 dated 03.09.2022 passed by the learned
Principal District Judge, Panchmahals at Godhra in
Preliminary Hearing No.1 of 2022 as also the order
of dismissal of default in M.A.C.P. No.29 of 2004
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passed on 22.06.2005 by the learned Motor Accident
Claims Tribunal, Panchamahal at Godhra are quashed
and set aside. M.A.C.P. No.29 of 2004 is ordered to
be restored on the File of the learned Tribunal to be
decided on merits.
9. A notice be issued to learned Advocate Mr. A.D.
Satnami appearing for the claimants informing about
the present order of restoration of the Claim Petition.
An opportunity be granted to all the parties to
provide the evidence on record. All the parties are
directed to co-operate with the learned Tribunal, to
conclude the petition within a period of six months
from the date of receipt of writ of the order of this
Court.
10. It is hereby directed that the aspect of interest
for the delayed period from 22.06.2005 till the
present date of hearing is kept open for the parties to
agitate the same during the final hearing of M.A.C.P.
No.29 of 2004. Record and proceedings, if any, be
sent back to the concerned Court / Tribunal
forthwith. Sd/-
(GITA GOPI, J)
CAROLINE
