Gujarat High Court

Dakshaben Rameshbhai Khant vs Ranjitsinh Badharsinh Baria on 21 February, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     C/SCA/2776/2024                                 ORDER DATED: 21/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2776 of 2024

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                  DAKSHABEN RAMESHBHAI KHANT & ORS.
                                Versus
                  RANJITSINH BADHARSINH BARIA & ORS.
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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 : 21/02/2024


                              ORAL ORDER

1. Advocate Mr. Nishit A.Bhalodi for the

petitioner states that M.A.C.P. No.2401 of 2017

came to be dismissed for default on 29.04.2022 by

Motor Accident Claims Tribunal (Auxi.) at

Lunawada, Dist. Mahisagar.

2. Advocate Mr. Bhalodi submitted that the

claimants are widow and four minor children, and

since dismissal was not known to them, they had

filed restoration application being M.A.C.M.A.

No.7 of 2023 with delay condonation application.

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The delay was condoned.

3. Advocate Mr. Bhalodi submitted that the

restoration application was allowed; however, the

claimant was ordered to pay cost of Rs.20,000/-

in D.L.S.A., Mahisagar at Lunawada on or before

15.04.2023, and the restoration application was

subject to the payment of the cost.

4. Advocate Mr. Bhalodi submitted that the

Tribunal was oblivious of the fact that the

claimants fall under the group, where the legal

aid can be provided free of cost and the claimant

is a widow, who is looking after four minors aged

about 14, 10, 8 and 2 years, and such cost even

ordered to be paid to D.L.S.A. Mahisagar itself

is a mockery, where the claimant could have

herself approached the D.L.S.A., Mahisagar for

providing legal aid to proceed with the case.

5. Advocate Mr. Bhalodi submitted that the

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learned Tribunal lacks sensitivity. Referring to

section 12(c) of the Legal Services Authorities

Act, 1987, Mr. Bhalodi submitted that women and

children are entitled to legal services, hence,

no such order ought to have been passed, rather

the Tribunal should have provided a lawyer from

the panel of the District Legal Services

Authority for conducting the matter of the

claimants, in case, where it was found that the

Advocate on record has failed to assist the

Court.

6. Mr. Bhalodi, learned advocate for the

petitioner further stated that the applicant

widow is from labour class and would not be

readily available on all the adjournments, since

original M.A.C.P. was of the year 2014, and, thus

stated that if the claimant could wait for a long

period til the framing of issues, then the

Tribunal should have the magnanimity of issuing

notice after the determination of the issues with

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the claimants so that the claimants would have

the notice of the matter being ready for the

trial. Mr. Bhalodi submitted that the issues were

framed on 16.02.2022 and the claim petition came

to be dismissed on 29.04.2022.

7. This Court in the case of Bharatbhai

Narsinghbhai Chaudhary and Others v. Malek Rafik

Malek Himantbhai Malek and Others, reported in

2011 (2) G.L.R. 1324, held that, when an

application before the Claims Tribunal is moved

for restoration, then in that circumstances, the

Civil Revision Application against the said order

would be maintainable under Section 115 of the

Code. It is further submitted that the Claims

Tribunal is the Court and the District Judge

presides over the Claims Tribunal who is

subordinate to the Court under Section 115 of the

Civil Procedure Code. The object of the Act,

which is benevolent provision, has to be

considered liberally, and the intention of the

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legislature enacting such provisions to achieve

the said object has to be considered. The Court

should adopt an approach in such a manner that,

in any event, it fulfills the policies of the

legislation.

7.1 The observations made in the said

judgment, which reads as follows :-

"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.

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(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

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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

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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)."

8. It is unfortunate that the claimants

could not remain present before the Court for

adducing evidence, at the same time, it is to be

noted that the learned Tribunal had even failed

to issue notice to the claimants. It becomes

incumbent upon the Tribunal to grant compensation

in accordance to the report received under

section 159 of the M.V. Act, and to treat the

report of the accident as an application for

compensation. The learned Tribunal could have

considered the said provision of law and granted

the amount of compensation. On the one hand, the