Gujarat High Court
Hakmabhai Minabhai Gamar (Aadivasi) vs Chief Officer, Palanpur Gram Palika on 1 April, 2024
Author: Gita Gopi
Bench: Gita Gopi
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C/SCA/11210/2022 ORDER DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11210 of 2022
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HAKMABHAI MINABHAI GAMAR (AADIVASI)
Versus
CHIEF OFFICER, PALANPUR GRAM PALIKA & ANR.
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Appearance:
KAASH K THAKKAR(7332) for the Petitioner(s) No. 1
MR KK THAKKAR(2834) for the Petitioner(s) No. 1
MR ANKIT Y BACHANI(5424) for the Respondent(s) No. 1
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/04/2024
ORAL ORDER
1. As per the record, after the disposal of the MACP No.481
of 2003 on 17/03/2016, the application for restoration along
with delay condonation application was moved.
2. As per the record, the delay condition application came
to be allowed on 12/04/2021 with the order of cost of
Rs.1,000/- to be deposited before the DLSA.
3. However, the restoration application as MACP Misc.
Application No.573 of 2021 came to be rejected by the Motor
Accident Claims Tribunal (Auxiliary), Palanpur at
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Banaskantha on 18/12/2021.
4. In case of Bharatbhai Narsinghbhai Chaudhary and
Others v. Malek Rafik Malek Himantbhai Malek and
Others reported in 2011 (2) G.L.R. 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.
4.1. 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
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
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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)
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
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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)."
5. The law which has been laid down in the Bhartbhai
(supra) suggests that the Motor Vehicles Act being a
benevolent legislation, it requires a decision on merits. At the
first place, the dismissal of the MACP on the ground that
applicant and advocate failed to remain present when the
matter was called out and for want of process fees/want of
address and on want of prosecution ground, the petition
dismissed for default which itself is contrary to the judgment
of Bharatbhai (supra).
6. The claimant had moved the court praying for condoning
the delay which came to be allowed, however, the prayer for
restoration of the claim petition was rejected on the very
same ground which has been noted by the Tribunal while
rejecting the claim petition.
7. It requires to be reminded to the Tribunal that main
claim petition was filed in the year 2003. The applicant is an
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agriculture labourer. The dismissal on the ground of want of
PF/want of address would not match the cause title since
respondent no.1 is the Chief Officer of Palanpur Nagar Palika
and respondent no.2 is the insurance company. The Tribunal
was required to frame the issues at the earliest, but the delay
has been attributed to the claimant. Since the claimant is
from scheduled tribe, there would not be any necessity for the
payment of the court fees/process fees. The Tribunal rejected
restoration petition on 18/12/2021 observing the same ground
as has been noted while dismissing the claim petition.
8. The volume of pendency of the matters is one of the
reasons for inaction on the part of the Tribunal to frame the
issues expeditiously. The delay of 18 years in dealing with the
matter would be rather the negligence of the Tribunal itself.
The Tribunal by rejecting the restoration application has
again failed to give substantial justice.
9. In view of the proposition of law in case of Bharatbhai
(supra), order dated 18/12/2021 passed below Exh.1 in
MACP No.573 of 2021 and order dated 17/03/2016 passed
below Exh.1 of MACP No.481 of 2003 is quashed and set aside
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and MACP No.481 of 2003 is ordered to be restored to its
original file of the Tribunal with a direction that the said
matter be decided on merits afresh.
10. Further, all the parties, thus, are permitted to raise all
the contentions and the grounds including the ground with
respect to payment of interest. The matter be decided
expeditiously preferably within a period of six months from
the date of receipt of writ of this order.
(GITA GOPI,J)
ILA
