Harish Raysingh Malivad vs Mehmood Mohammad Hussain
2023 Latest Caselaw 7183 Guj

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    C/SCA/16969/2023                                     ORDER DATED: 29/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 16969 of 2023
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                         HARISH RAYSINGH MALIVAD
                                  Versus
                       MEHMOOD MOHAMMAD HUSSAIN
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Appearance:
MR DHRUV R THAKKAR(11280) 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 : 29/09/2023

                                ORAL ORDER

[1] Mr. Dhruv R. Thakkar, learned advocate for the

applicant submits that the applicant is before

this Court since MACP no.27/2017 came to be

dismissed for default vide order dated

28.3.2022 without any decision on merits. Mr.

Thakkar submits that the restoration

application was filed along with the delay

condonation application since the applicant

was not aware of the dismissal and there had

been the delay of 9 months and 18 days in

preferring the restoration application, but by

order dated 1.7.2023, MACMA no.54/2023 came to

be dismissed for default.

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[2] Mr. Thakkar submits that the main claim

petition was filed for the minor and the

learned Tribunal dismissed the main claim

petition being MACP no.27/2017 observing that

the notice has not been served to opponents

no.1 and 2 and the matter has remained pending

since long for non-service and it was observed

that the applicant had failed to initiate any

efforts for service and on being found that

the applicant has remained absent

continuously, the learned Tribunal had found

that the applicant was not interested in

proceeding and therefore, the matter came to

be dismissed. Mr. Thakkar submits that the

learned Tribunal has failed to even see that

it was the matter of a minor and again by an

order dated 1.7.2023, MACMA no.54/2023 on the

very same ground came to be rejected

considering the absence of the applicant and

his lawyer of not taking any efforts to serve

the opponents though a hand packet for the

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service of notice was given. Mr. Thakkar

submits that the learned Tribunal could

through on its own agency could have served

the opponents. The observation of having given

the hand packet itself suggests that the

necessary process fee would have been paid.

Mr. Thakkar submits that it is the duty of the

Court on payment of the process fee to get the

notice served. The prayer for receiving hand

packet from the Court is only to assist the

Court for the service. Mr. Thakkar further

submits that respondent no.3-insurance company

was on record which is of the local

jurisdiction which was already served and

since the matter was of the injury of the

minor, the learned Tribunal could have

followed the judgment in the case of Master

Mallikarjun Vs. Divisional Manager, The

National Insurance Company Limited & Anr.,

reported in AIR 2014 SC 736 to grant the

compensation, where presence of the driver and

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owner would not be even necessary and thus,

stated that non-service of opponents no.1 and

2 who were from Madhya Pradesh could never

have been made a ground for dismissal of the

matter. Mr. Thakkar has relied upon the

judgment dated 28.8.2018 passed by this Court

in Special Civil Application no.2463/2018 and

the judgment dated 31.7.2023 passed by the

Hon'ble Supreme Court in Civil Appeal

no.4758/2023.

[3] Referring to the case in the case of

Bharatbhai Narsinghbhai Chaudhary & Ors. v.

Malek Rafik Malek Himmatbhai, reported in 2011

(2) GLR 1324, Mr. Thakkar submits that no

claim petition can be dismissed without

decision on merits.

[4] It is necessary to reproduce relevant part of

the decision in the case of Bharatbhai

Narsinghbhai Chaudhary (supra), which is as

under:-

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"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 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

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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 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 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

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required to adopt lenient view. (Para 6)."

[5] Here in this matter, dismissal of the claim

petition was on the ground that the applicant

failed to serve respondents no.1 and 2. It is

to be taken note that respondents no.1 and 2

are from Madhya Pradesh. The order of the

Court suggests that the respondent no.3-

insurance company had been served. The

restoration application was given with a

prayer to condone the delay and that too, came

to be dismissed. In view of the proposition of

law laid down in the case of Bharatbhai

Narsinghbhai Chaudhary (supra), as soon as

restoration application is moved, the learned

Tribunal should be proactive enough to hear

the matter as the main claim petition itself

cannot be dismissed for default without any

decision on merits. The case of the applicant

being a minor would be governed by the

judgment in the case of Master Mallikarjun

(supra). The yardstick has been laid down to

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grant compensation to the minor and if at all

the matter falls under exceptional case of

beyond the basic limits of the yardstick laid

down, then the matter has to be dealt with

accordingly, but under no circumstances, could

any claim petition be dismissed without any

decision on merits.

[6] In view of the above, the order dated 1.7.2023

passed by the MACP (Main), Dahod in MACMA

no.54/2023 in MACP no.27/2017 is hereby

quashed and set aside. Consequently, the order

dated 28.3.2022 passed by the MACT (Main),

Dahod in MACP no.27/2017 is also quashed and

set aside. MACP no.27/2017 is ordered to be

restored on the file of the Tribunal with a

direction that the matter be decided on merits

by providing an opportunity to all concerned

to adduce the evidence on record. Let this

exercise of recording of evidence be completed

within a period of six months on receipt of

writ of the Court.

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[7] Accordingly, the present petition stands

disposed of.

(GITA GOPI,J) Maulik