Gujarat High Court
Sureshji Alias Bhavanji Baskuji Thakor vs Patel Ramanlal Bhaikhabhai on 7 September, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/3260/2022 JUDGMENT DATED: 07/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3260 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 No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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SURESHJI ALIAS BHAVANJI BASKUJI THAKOR
Versus
PATEL RAMANLAL BHAIKHABHAI
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 07/09/2022
ORAL JUDGMENT
1. By way of this Appeal, the Appellant (original claimant) has challenged the judgment and award dated 13.10.2017 passed by the learned Motor Accident Claims Tribunal (Auxi.), Mehsana in Page 1 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 M.A.C.P. No.281 of 2008, on the ground, that the appellant was the original minor claimant of M.A.C.P., which was filed through the Guardian and next friend which was dismissed on 13.01.2017, on the ground of non-production of any documents and non-prosecution of matter by either of the parties to the claim proceedings.
2. It is submitted that it was the case of compensation to the minor who has sustained injuries on 16.03.2008 while they were cultivating the crop of mustard seeds in their field and during the process, the thresher attached to the Tractor bearing Registration No.GJ-2-L-8896 of Ramanbhai Bhikabhai Patel was used and the minor was filling the fines of rest of crop and in the process, the right hand fell inside the thresher and his thumb got severed. It is submitted that the claim petition was filed in the year 2008, while the issues were framed on 13.01.2013. It is submitted that after framing of issues, no notice appears to have been served to any of the parties or their Advocates and the learned Tribunal rejected the application only on the ground stating that sufficient opportunity had been granted to Page 2 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 the claimant to adduce evidence in the form of examination in chief neither the driver nor the owner of the vehicle or the Insurance Company has tried to examine and in absence of reliable and cogent evidence, the learned Tribunal was left with no other option but to close the rights.
3. Learned Advocate for the appellant Mr. Yogendra Thakore relied on the order of this Court dated 27.07.2022 passed in First Appeal No.2488 of 2022 in the case of Minor Poojaben through her Guardian next friend and Father Rajuji @ Tinabhai Nagjiji to submit that the learned Tribunal should not have rejected the application as the Court would have no jurisdiction to dismiss the petition for want of prosecution and the Court is mandated to decide the matter on merits. It is further submitted that the learned Tribunal could have passed the judgment and award, even by considering the proposition of law as laid down in the decision of the Hon'ble Apex Court in the case of Master Mallikarjun v. Divisional Manager, the National Insurance Company Limited and Another reported in 2014 14 SCC 396.
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4. On the other hand, learned Advocate for the respondent - Insurance Company Mr. Rathin P. Raval has submitted that the learned Tribunal has closed the right of the Insurance Company and it is only on production of evidences of the claimant that the Insurance Company would exercise the right of rebuttal evidence. It is also submitted that no evidence was produced by the claimant and the Insurance Company was not obliged to defend the matter and thus, submitted that the order passed by the Tribunal while dismissing the matter is just and proper since the claimants have failed to exercise vigilance and produce relevant papers / documents as evidence on record.
5. Having heard learned Advocates appearing for the respective parties and on perusing the record of the case, the learned Tribunal in its judgment and award dated 13.10.2017 passed in M.A.C.P. No.281 of 2008 has observed in Paragraphs 12, 13 and 14 as under :-
"12. Further, after framing of issues in the year January 2013, the Tribunal has adjourned the matter time and again for adducing the evidence from the parties to the petition. Also, numbers of adjournment Page 4 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 applications were granted by the Tribunal just to secure the ends of justice but neither the parties to the petition nor the advocates of the parties have paid any heed to the request made by the Tribunal. Also, the Tribunal has drawn the attention of the learned Advocates of the parties towards the various directions issued by the Hon'ble High Court of Gujarat as regards to the expeditious disposal of ten years old matter. Inspite of that, neither the parties nor the advocates have shown their interest to proceed further with the matter. Under the circumstances, Tribunal has left with no other alternative except to close the rights of the parties. Accordingly, at every stage of hearing rights of the parties were closed by the Tribunal and has kept the matter for final order.
13. Considering the aforesaid facts of the case and also as per the Rule-211 of the Motor Vehicle Act, is the duty of the claimant to produce all the relevant papers and documents as provided under Rule-211 of the Act, but here in the present case, the claimant has not produced any document nor have come up before the Tribunal to proceed further with the matter. On the other side, opponents also remained absent and they did not remained present before the Tribunal and led any evidence to assist the Tribunal. Under the circumstances, the Tribunal is left with no other alternative, but to dismiss the claim of the claimant.
14. In absence of convincing oral and documentary evidences pertaining to the motor vehicle accident claim petition from both the sides, there is no need to decide the quantum portion, hence, I answer issue No.1 and 2 in the negative and for Issue No.3, I pass the following final order.
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1. The present Motor Accident Claim Petition No.281/2008 is hereby dismissed.
2. The applicant / claimant is hereby directed to pay necessary Court fees within 15 days from the date of this order and, if, he fails to do so, necessary yadi be sent to the District Collector, Mahesana for recovery of deficit Court fees.
3. Award be drawn accordingly."
6. In case of the Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324 (supra), 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. The relevant part of the above 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, Page 6 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 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 22nd 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 apperas that the applicants are poor persons and coming from the lower strata of the society as they belong to Tribal community.
Page 7 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 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)."
7. Here in this case it appears that father is the guardian who had not approached the Court for adducing evidence. Nothing is reflected in the order of any notice being served to the Advocate or the claimant by the Court after framing of issues to produce the evidence. Further, because of failure of the father to produce the evidence in support of the claim petition, it would have been the duty of the learned Tribunal to appoint any other person as a guardian and next friend for adducing the evidence. The Nazir of the Court could have been made the guardian to submit the evidence on behalf of the minor or the Tribunal could have on its own verified the age of the minor who could have possibly attained the majority after the date of formulation of issues and could have instructed the injured himself to produce the evidence. The learned Tribunal was required to invoke parens patriae jurisdiction to do substantial justice.
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8. In the case of 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 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."
9. In the case of Sunil Shivran @ Sevaram Rabari v. Nirmalsing Triloksing & Others reported in 2019 (1) G.L.R. 694, it has been held that the claim petition Page 9 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 cannot be dismissed for default. It is the duty of the Tribunal to award just and reasonable compensation based on material available on record. The Tribunal has to call for relevant information in Form No.56 from the Investigating Agency. The law permits to record evidence by affidavit. When the claim petition gives details of claim, nature of accident, the Tribunal is required to award just compensation and further, no matter can be disposed of without doing justice.
10. In the case of Joshi Rajendrakumar Popatlal v. Thakor Ramnaji Hamirji and Others reported in 2019 (2) G.L.R. 1508, it has been held that the Tribunal cannot dismiss claim petition on the ground that the claimant has not produced driving license, R.C. Book or Insurance policy of vehicle involved in accident. The Tribunal is required to call for such information from the Investigating Agency. It is mandatory for the Investigating Agency to collect such information and forward it to the Tribunal in Accident Information Report in Form 54 under Rule 150 within 30 days. The Tribunal is required to treat the said report as application for compensation and award just Page 10 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 and reasonable compensation to the claimant without waiting for filing of claim petition. The Court disapproved the conduct of the Tribunal in not calling for said information from the Investigating Agency and the order of the Tribunal was quashed and set aside. It was also held that the claimant may disclose the said information only if he is aware. The disclosure in the claim petition by the driver, owner and insurer of the offending vehicle is sufficient. The owner and driver though served with summons did not appear, the insurance company appeared but did not file a written statement. It was also held that there was no reason for the Tribunal to dismiss the claim petition but the Tribunal is required to call for Accident Information Report in Form 54 from the Investigating Officer.
11. In the case of General Insurance Company v. State of Andhra Pradesh reported in 2007 12 SCC 354 had directed the concerned to ensure that the mandate of Section 158(6) of the Motor Vehicles Act, 1988 (hereinafter referred to in short as the 'M.V. Act') be honored without any exception. The Hon'ble Apex Court had laid down that it is the Page 11 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 statutory duty of the concerned Police Officer to forward to the Claim Tribunal having jurisdiction about the death or bodily injury of any person or record in any police station. Further, mandate is contained in the provision about sending the copy thereof to the concerned insurer and thereby, the Hon'ble Apex Court directed all the State Governments to instruct the Police Officer to comply with the requirement. It has been noted in Paragraph 10 of the above judgment in the following terms :-
"(10) It is, therefore, directed that all the State Governments and the Union Territories shall instruct, if not already done, all concerned police officers about the need to comply with the requirement of Section 158 (6) keeping in view the requirement indicated in Rule 159 and in Form
54. Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case there is non-compliance, appropriate action shall be taken against the erring officials. The Department of Transport and Highway shall make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the concerned State Government/Union Territories so that necessary action can be taken against the concerned officials."
12. Section 158(6) of the M.V. Act mandates that as soon as any information regarding any accident Page 12 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer.
13. Section 166(4) of the M.V. Act provides for the Claims Tribunal to treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under the M.V. Act.
14. The learned Tribunal thus in case finds that after formulation of issues in the matter and service of notice to the claimant and his Advocate on record fails to come forward to adduce evidence, the learned Tribunal in that case shall call for Accident Information Report in Form 54 under Rule 150 of the Page 13 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022 C/FA/3260/2022 JUDGMENT DATED: 07/09/2022 Central Motor Vehicles Rules, 1989 and decide the compensation for the claimants under the M.V. Act.
15. In view of the above discussion, the Appeal is allowed. The judgment and award dated 13.10.2017 passed by the learned Motor Accident Claims Tribunal (Auxi.), Mehsana in M.A.C.P. No.281 of 2008 is quashed and set aside. The matter is ordered to be taken on the file of the concerned learned Tribunal and sufficient opportunity be granted to all concerned to adduce evidence on record, and, only after appreciation of evidence, the learned Tribunal is directed to dispose of the matter concluding on merits. The above exercise be completed within a period of four months from the date of receipt of writ of the order of this Court. Both the sides are directed to co-operate with the learned Tribunal.
Sd/-
(GITA GOPI, J) CAROLINE Page 14 of 14 Downloaded on : Sun Dec 25 01:20:02 IST 2022