Gujarat High Court

Lhrs Of Hamirbhai Rambhai Chauhan vs Gujarat State Road Transport ... on 6 October, 2025

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                              C/SCA/4577/2025                                 ORDER DATED: 06/10/2025

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                  R/SPECIAL CIVIL APPLICATION NO. 4577 of 2025

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                                   LHRS OF HAMIRBHAI RAMBHAI CHAUHAN & ORS.
                                                     Versus
                                   GUJARAT STATE ROAD TRANSPORT CORPORATION
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                      Appearance:
                      MR. HEMAL SHAH(6960) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
                      MR HS MUNSHAW(495) for the Respondent(s) No. 1
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                        CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

                                                        Date : 06/10/2025

                                                            ORAL ORDER

1. The present petition is preferred against the impugned

judgment and order dated 12.12.2024 passed in MACMA No.13

of 2024 in M.A.C.P No.373 of 2012, whereby the learned

Tribunal declined to restore the aforesaid M.A.C.P. to its original

file.

2. Heard learned advocates for the parties.

3. Learned advocate for the petitioner submitted that the

Claim Petition No.13/24 came to be dismissed for non-

prosecution vide order dated 12.12.2024 by the learned Tribunal

(Aux.) Una- Gir Somnath. He submitted that the MACP No.373 of

2012 (Old No.326 of 2002) came to be transferred from Amreli to

Una- Gir Somnath. The notice of the said transfer was never

issued to the claimants and therefore, the said claim petition

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came to be dismissed for non-prosecution by the learned

Tribunal vide order dated 04.07.2014. Thereafter, on gathering

of knowledge of dismissal, the claimant no.1 namely Hamirbhai

contacted the lawyer, and thereafter, preferred the MACMA

No.29 of 2018. Thereafter, the said claim petition was came to be

restored to its original file vide order dated 25.05.2018. He

further submitted that the claimant no.1 Hamirbhai was looking

after the case, but unfortunately, he died on 15.06.2017. He

further submitted that because the Hamirbhai was dealing with

the matter, therefore, the other family members were not aware

about the status of the case. Therefore, the said claim petition

again came to be dismissed for default vide order dated

30.11.2018. Again on gathering the information of dismissal, the

claimants/applicants engaged the lawyer and preferred the

application for recalling of order and restoration of the claim

petition to its original file. The learned Tribunal vide order dated

12.12.2024, dismissed the said application.

4. Learned advocate Mr. H. S. Munshaw appearing on behalf

of the respondent-Corporation vehemently submitted that the

claim petition came to be dismissed twice, but the claimants are

not serious in prosecution of the claim petition. He further

submitted that the learned Tribunal has rightly dismissed the

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application for restoration. He further submitted that the original

claim petition was filed in the year 2012 but owing to the

negligence, the claim petition could not be decided by the

learned Tribunal. He further submitted that there is no ground

to restore the claim petition to its original file.

5. In rebuttal, learned advocate for the petitioners placed

reliance on the judgment rendered in the case of Sunil Shivran

@ Sevaram Rabari Vs Nirmalsing Triloksing (delivered in

R/SCA No.2463/2018 on 28.08.2018) and Champaben

Pravinbhai Makvana and Ors Vs Died Dineshkumar Kalubhai

Parmar Heirs and Ors ( delivered in R/SCA No.3494/2024 on

18.03.2024). By placing reliance upon the aforesaid judgments

rendered by the Co-ordinate Bench of this Court, learned

advocate for the petitioners submitted that the present petition

deserves to be allowed.

6. Having considered the submissions of the learned

advocates for the parties and having regard to the fact that the

claim petition initially filed at Amreli, which came to be

transferred to Una. The notices of the transfer were not served

upon the claimants, and therefore, they could not appear before

the learned Tribunal. Therefore, the same came to be dismissed

for default vide order dated 04.07.2014. On gaining the

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knowledge of dismissal, the claimant no.1-Hamirbhai Rambhai

Chauhan preferred the application for restoration of the said

application, which came to be allowed, but unfortunately the

claimant Hamirbhai, who was looking after the litigation, had

expired on 15.06.2017 and therefore, the other claimants could

not take care of the claim petition and the same came to be

dismissed for default on 30.11.2018. Thereafter, the claimants,

on gaining the knowledge of dismissal, preferred an application

for restoration, but the said application came to be rejected vide

order dated 12.12.2024. It is settled proposition of law that the

Motor Vehicles Act, 1988 is the benevolent piece of legislation.

The claimants must be awarded just compensation and the

petition must be decided on merits rather than on technicalities.

7. At this juncture, it would be profitable to refer the

judgment of the Co-ordinate Bench rendered in the case of

Champaben Pravinbhai Makvana and Ors. Vs Died

Dineshkumar Kalubhai Parmar Heirs and Ors(supra), wherein

the Co-ordinate Bench observed as under:-

"3. It is required to be noted that the matter remained pending for a very long time without framing of issues. Litigants may fail to keep track of the proceedings of the Court as those matters would not even come on board for the advocates on record to take the notice. The Tribunal has failed to frame the issues within reasonable time and

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without even giving a notice to the claimants or the parties of the matter of the issues being framed, the Tribunal without any hesitation dismissed the matters taking the satisfaction of disposal of the case, where the orders would clearly show that no justice has been done. Here in the present matter, the insurance company was served and was permitted to defend the case in accordance to Section 170 of the M.V. Act and as per Section 170 of the Act, when the insurance company has been impleaded as a party respondent, then it would have the right to contest the claim or any other grounds that are available to the person against whom the present claim has been made. Thus, in view of the provision of Section 170 of the M.V. Act, presence of opponent no.1 would not be necessary as the claim proceedings could have been proceeded in presence of the insurance company in failure of summons served against opponent no.1 and because of the presence of the insurance company on record, the Tribunal could have ordered to delete the opponent no.1 and in case where any adverse orders are required to be passed against the owner driver, then in view of Section 155 of the M.V. Act, the cause of action could survive and the proceedings could be against his estate. Hence, the observation of the Tribunal of dismissing the matter for default by invoking the provisions of Order IX Rule 8 of the CPC is erroneous on record in view of the observation in the case of Bharatbhai Narsinghbhai Chaudhary (supra), where this Court (Coram:

Hon'ble Mr. Justice P.P. Bhatt) has referred to the provisions of Sections 213 and 229 of the Gujarat Motor Vehicles Rules, 1989 and has observed in Paragraph 5.14 as under:-

"5.14 The Act and the Rules framed thereunder also do not empower the Claims Tribunal to dispose an application merely for default of the applicant

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without arriving at findings on merits of the case, after the stage of framing issues. In the instant case, issues were framed, and thereafter, the learned Tribunal was required to decide the case on merits with a view to provide substantial justice, instead of entering into the technicalities."

4. In Paragraph 5.13, the object and intent of the Act has been explained by this Court while referring to the provisions of Restoration, it has been noted in Paragraph 5.11 as under:-

"5.11 Thus, 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.

5. The Tribunal has failed to take into consideration the object of the benevolent Act. In the case of Bharatbhai Narsinghbhai Chaudhary (supra), the wide power of restoring the matters upon dismissal has been noted in the following terms:-

"5.7 The Code confers discretion on the Court in the matter of passing such order. 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 adjourned the suit. In the event of dismissal of 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"

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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 lie against such an order."

8. Thus, having regard to the ratio of the aforesaid judgment

rendered by the Co-ordinate Bench, I am of the considered view

that it would be in the interest of justice, if the present petition

is allowed and the claim petition is restored to its original file on

the following conditions:

"(1.) The claimants shall complete its evidence within a

period of 3 months from today and thereafter the

respondents shall complete its evidence within a period of

3 months thereafter.