Gujarat High Court
Balvantsinh Kalusinh Zala vs Daljibhai Girdharbhai Patel on 14 September, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/2190/2022 JUDGMENT DATED: 14/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2190 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to --
see the judgment ?
2 To be referred to the Reporter or not ? --
3 Whether their Lordships wish to see the fair copy of the --
judgment ?
4 Whether this case involves a substantial question of law --
as to the interpretation of the Constitution of India or
any order made thereunder ?
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BALVANTSINH KALUSINH ZALA
Versus
DALJIBHAI GIRDHARBHAI PATEL
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Appearance:
MR PRADIP J PATEL(5896) for the Appellant(s) No. 1
KRUPALI N BHATT(9455) for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/09/2022
ORAL JUDGMENT
1. By way of this Appeal, the Appellant - original claimant has challenged the judgment and award dated 05.04.2019 passed by the learned Motor Page 1 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 Accident Claims Tribunal (Main), Mahisagar at Lunawada in M.A.C.P. No.1001 of 2017 (Old M.A.C.P. No.1555 of 2005) as the same was dismissed.
2. The facts of the case are that on 03.06.2004 at about 17.00 hours the applicant was travelling on his motor cycle as a pillon rider from Lunawada to Vardhari. While passing near Charangam Salavada bus Stand, the respondent who was driving the tractor with trolley bearing Registration No.GJ-20-B-76 and GRY- 6020 came in a rash and negligent manner and excessive speed, dashed with the motor cycle. The claimant sustained serious injuries on various parts of the body resulting into permanent disability and therefore, the claim petition was filed claiming a compensation amount of Rs.5,00,000/-, under all the heads.
3. Learned Advocate for the appellants Mr. Pradip J. Patel submits that the judgment of the Tribunal is contrary to law, there cannot be dismissal of the case under the Motor Vehicles Act, 1988 without any findings on the merits of the case. It is further Page 2 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 submitted that the original petition was filed in the year 2005 before the learned Motor Accident Claims Tribunal, Godhra, District Panchmahal. The notice was issued to the opponents and on 21.01.2006, as the notice was served to the respondents, an application was given by the respondent No.3 at Exhibit 6 for appointing an Advocate which came to be allowed and Vakalatnama was produced at Exhibit
7.
4. Referring to the Roznama, it is submitted that thereafter till the year 2012, the matter never saw the light of the day and on 29.11.2012, by an order, the matter stood transferred to the 8th Additional Court, Godhra. The Roznama suggests that the order was passed on that day to proceed the matter ex- parte against respondents No.1 and 2 and the matter stood posted for evidence after framing of issues and on 10.06.2013, the matter was listed on Board. Thereafter, suddenly on 09.03.2019 the matter saw the proceeding with an oral order closing the right of evidence of claimant. The Roznama notes that the applicant and the Advocate were not present. In the same way, it is noted that the respondent and their Page 3 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 lawyer were not present. There was no representation from the side of the claimant nor any adjournment application was moved and by an oral order of the Court, the right of the claimant came to be closed and the matter was posted for evidence of the respondent on 13.03.2019 and on that day in absence of the parties, the rights of the opponents were closed and the matter was posted for arguments. On 15.03.2019, the rights of the arguments of the parties were closed in their absence, and on 05.03.2019, the judgment came to be passed at Exhibit 9 and the endorsement in the Roznama on that day reflects that the lawyers of the parties were present. However, the Roznama does not suggest whether any of the Advocates were heard on that matter, the judgment and award was drawn at Exhibit 10.
5. Record and proceedings were called for. The record and proceedings reflects that the claimants were permitted to file a claim petition as an indigent person, by an order in Miscellaneous Application (M.A.C.P.) No.401 of 2004 on 02.08.2004. The claim petition was registered on the very same day.
Page 4 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 Notice was issued to the opponents who are the driver, owner and the Insurance Company. Though the notice was served, but the respondents No.1 and 2 had not preferred to appear, therefore the petition was ordered to be proceeded ex-parte on 19.11.2012. On 10.06.2013, the Tribunal closed the right of the interest on the compensation amount observing that the matter was regularly notified on the Board, as the issues were framed on 19.11.2012. The learned Tribunal observed that the only intention to derail the matter is to exert more interest amount, thus on that ground, the right of interest of the claimant came to be closed.
6. The learned Tribunal while dismissing the matter has observed as under :-
"7. All the issues are interconnected, therefore the discussion of issues be made jointly thereafter.
8. This claim petition is filed by the applicant, to obtain compensation in the year 2005. That the issues were framed at Exh. 8 by my Ld. Predecessor on dtd. 19.11.2012.
9. Thereafter, the claimant was served with the notice vide Exh.9 dated 19.11.2012 to remain present before the Tribunal for adducing evidence, even if neither the claimant nor his advocate has Page 5 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 remain present and constantly remained absent, hence right of evidence of claimant has been closed on 08.03.2019.
10. Thereafter also, though more than 10 years have left, neither the claimant nor his advocate has appeared before the Tribunal and not taken any action to initiate this proceeding and not proceeded with the matter.
11. This is the case of 10 years old. Hon'ble High Court has issued direction regarding five years old cases should be disposed of expeditiously as early as possible vide letter dated 03.07.2018.
12. Hon'ble Gujarat High Court has also issued direction vide letter No.D.2917/2017 dated 17.01.2019 in which the Hon'ble High Court has instructed that in the case of 10 years old cases, more than 7 (seven) days adjournment should not be granted.
13. So, considering the record, neither the claimant nor his advocate has tried to proceed with the matter and this Tribunal has waited for claimant and his advocate more than 10 years but none of them has taken care to proceed with the matter, and therefore, as per the circular and direction of the Hon'ble High Court of Gujarat, as this matter is more than 10 years old, and no evidence is recorded, calculation of compensation or to prove the accidental incident on record any oral and documentary evidence are not produced.
14. While deciding this matter, this Tribunal has kept in mind the nature of proceeding as it is beneficial proceeding. But considering the proceeding of this case, it is also pertinent to note Page 6 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 that law always help to the person who are vigilant towards their rights. In this case, since long applicant and his advocate have constantly remain absent and not tried to proceed in the matter or to initiate the proceeding. Hence, considering the letter of the Hon'ble High Court, this Tribunal has to decide this matter in absence of the applicant. Hence, my answer to the issue no.1 and 2 are in negative and for the issue no.3, I pass the following order.
-: O R D E R :-
1. The present claim petition is hereby dismissed.
2. Award be drawn accordingly in the above petition.
3. No order as to cost."
7. Having heard learned Advocates appearing for the respective parties and on perusing the records of the case, it appears that the learned Tribunal closed the rights of the claimants on 08.03.2019 while observing that the claimant was served with a notice vide Exhibit 9. However, Exhibit 9 as per the Roznama is given to the judgment and award dated 05.04.2019 while the issues were framed at Exhibit 8 on 19.11.2012. A perusal of the Roznama suggests that only twice after framing of issues, the matter was notified on the Board and 08.03.2019, the rights of the claimants came to be closed. The record and Page 7 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 proceedings does not show any notice being served to the claimants as noted in the judgment. The learned Tribunal has dismissed the matter observing that the claimant's advocate had remained absent constantly and no action has been taken to initiate the proceedings for more than 10 years. It is unfortunate to note that the directions of the High Court on the administrative side was referred which is for expeditious disposal of more than 5 years old matter and direction dated 17.01.2019 from the administrative side of not granting more than 7 days in 10 years old matter. The learned Tribunal observing that no evidence is recorded for calculation of compensation of the accident / incident on record and oral and documentary evidence has not been produced. Thus noting the constant absence of the Advocate, the learned Tribunal dismissed the matter.
8. The order itself suggests that the matter has not been disposed on merits. None of the parties have produced any evidence on record, though the learned Tribunal has observed about issuance of notice vide Exhibit 9 but the record does not show any notice served to the claimants. The judgment and award Page 8 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 of the Tribunal is marked as Exhibit 9.
9. In the case of Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324, it has been held that the learned Tribunal has no power to dismiss the Claim Petition for default taking into consideration the object behind the Motor Vehicles Act, 1988, i.e. to provide adequate compensation to the claimants.
and the relevant part of the decision is reproduced herein below 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 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 Page 9 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 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)"
10. Further, in the above decision itself, i.e. Bharatbhai Narsinghbhai Chaudhary (supra), it has been held in Paragraphs 5.13 and 5.14 as under :-
"5.13. The object of the Act, which is a benevolent provision or social welfare legislation under which, compensation is paid, has to be considered liberally and the intention of the Legislature enacting such provisions to achieve the said object, has to be considered. While interpretation of the provisions of social welfare legislation, the Courts should adopt an approach in such a manner, that in any event, it fulfills the policy of the legislation. The interpretation to be adopted, should be more beneficial to a person in whose favour and in whose interest the Act has been passed. While dealing with application under the Act, the interpretation has to be for the benefit of the poor victims. It is, therefore, necessary to take a constructive and positive attitude in interpreting the provisions of these types and determine the main aim or object of a particular Act in question for adjudication before the Court.
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 without Page 10 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022 C/FA/2190/2022 JUDGMENT DATED: 14/09/2022 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."
11. The judgment of this Court in First Appeal No.3260 of 2022 declared on 07.09.2022 on the issue involved in the matter, would be useful to all concerned to conduct the matter.
12. In view of the above, the First Appeal is allowed. The judgment and award dated 05.04.2019 passed by the learned Motor Accident Claims Tribunal (Main), Mahisagar at Lunawada in M.A.C.P. No.1001 of 2017 (Old M.A.C.P. No.1555 of 2005) is quashed and set aside. The matter is ordered to be restored to its original File. It is open for both the parties to agitate the rights of the claimants for the interest on the compensation amount so granted. Record and proceedings be sent back to the concerned Tribunal / Court forthwith.
Sd/-
(GITA GOPI, J) CAROLINE Page 11 of 11 Downloaded on : Sun Dec 25 01:49:21 IST 2022