Gujarat High Court
Rekhaben Wd/O Rakeshkumar Patel vs Naranbhai Kasturji Vanzara on 24 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/318/2024 ORDER DATED: 24/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 318 of 2024
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REKHABEN WD/O RAKESHKUMAR PATEL
Versus
NARANBHAI KASTURJI VANZARA
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Appearance:
MR. BHAUMIK DHOLARIYA(7009) for the Appellant(s) No. 1,2,3,4,5,6
for the Defendant(s) No. 1,2
MASUMI V NANAVATY(9321) for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/01/2024
ORAL ORDER
1. Mr. Bhaumik Dholariya, learned advocate for the
appellants submitted that MACP No.854/17 came to
be dismissed on 31.7.2019 by MACT (Aux), Mahisagar
at Lunavada considering pendency of the matter for
about more than 10 years and observing that
neither the claimants nor the advocate had
appeared before the Tribunal. Mr. Dholariya
submitted that the matter is of the year 2004 and
the appellants are widow, minor and aged parents
in law and further submitted that being from a
interior area, the applicants could not have easy
access of communication with the advocate on
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record. It is submitted that the Tribunal was
required to issue notice to the applicants prior
to dismissal since the fact of framing of issues
would not have been known to them. Mr. Dholariya
also referred to the judgment in the case of
Bharatbhai Narsinghbhai Chaudhary & Ors. v. Malek
Rafik Malek Himmatbhai, reported in 2011 (2) GLR
1324 to contend that the MACP matters are required
to be decided on merits.
2. Countering the arguments, learned advocate Mr.
Nanavati submitted that there has been delay of
about 743 days to even make a prayer for setting
aside the dismissal order. Mr. Nanavati submitted
that vigilance of the litigant is also required as
all the fault cannot be laid down on the advocate.
Mr. Nanavati submitted that the insurance company
cannot be burdened with the liability of paying
interest in case of MACP being allowed and thus,
stated that necessary direction is required to be
given to the concerned Tribunal in case of any
remand of the matter.
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3. 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.
4. 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 the Motor Vehicles Tribunal that, it
is a Tribunal, will not take it out of
the purview of the Civil Court. (Para
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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
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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)."
5. It is required to be noted that the matter has
been pending from the year 2004 without any
framing of issues. After the issues are framed, it
would have been more convenient for the advocate
on record and the litigant on receipt of notice
from the court for adducing the evidence. Further,
the Tribunal was also required to take into
consideration the judgment in the case of Jai
Prakash v. National Insurance Company Limited,
reported in (2010) 2 SCC 607 and could have called
for the information from the investigating officer
and following the provision of Section 166(4) of
the Act, the Tribunal could have granted the
compensation on the report submitted in compliance
of Section 158(6) of the Act.
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6. Since there has been delay of 743 days in filing
the present appeal, it would be open for both the
parties to agitate regarding the payment of
interest on the said delayed period. The learned
Tribunal would hear the parties on merits by
giving sufficient opportunity of hearing. Hence,
the impugned order stands quashed and set aside
and MACP no.854/17 is ordered to be restored on
the file of the concerned Tribunal with a further
direction to decide the matter on merits within a
period of eight months. Advocates and litigants on
record are expected to cooperate the Tribunal.
7. Accordingly, the present appeal stands disposed
of.
(GITA GOPI,J)
Maulik
