Gujarat High Court
Rabiyabibi Wd/O Abdul Ibrahim Mansuri @ ... vs Babubhai Nansing Nayka on 20 October, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/SCA/21789/2022 ORDER DATED: 20/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21789 of 2022
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RABIYABIBI WD/O ABDUL IBRAHIM MANSURI @ KADWA
Versus
BABUBHAI NANSING NAYKA
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Appearance:
MR MOHSIN M HAKIM(5396) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/10/2022
ORAL ORDER
1. By way of present petition, the petitioners have challenged the order dated 24.03.2022 passed by the Motor Accident Claim Tribunal (Auxi.), Panchmahals at Godhra in Civil Misc. Application No.192 of 2020 whereby the tribunal has rejected the application filed by the petitioner - original claimants for restoration of the Motor Accident Claim Petition No.3143 of 2001.
2. Learned advocate Mr. Hakim states that the application was filed for restoration of the M.A.C.P. No.3143 of 2001, which came to be dismissed for default on 24.10.2016. Mr. Page 1 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022 C/SCA/21789/2022 ORDER DATED: 20/10/2022 Hakim submits that the delay in filing the restoration application was condoned, however, the learned tribunal rejected the Civil Misc. Application No.192 of 2020 by observing that since the award has been passed by the learned tribunal, the appeal under Section-173 of the M.V. Act would lie before this Court. Hence, the learned tribunal came to the conclusion that the tribunal cannot restore the claim petition by reversing the judgment and award as being the Appellate Authority.
3. The M.A.C.P. No.3143 of 2001 was dismissed for default on 24.10.2016 observing that the petitioners have not produced documents in support of their claim petition and they failed to prove the genuineness of the matter before the tribunal. Many opportunities have been given to the claimants and the lawyer. The learned tribunal had granted many adjournment applications of the learned advocate of the petitioners and the learned tribunal had also granted application Exh.16 to file vakalatnama as well as application Exh.19 to submit written statement of the opponent no.3 - Insurance Company. The learned tribunal observed that the Page 2 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022 C/SCA/21789/2022 ORDER DATED: 20/10/2022 issues were framed at Exh.21 and the parties have never remained present before the tribunal. It is further observed that the learned advocate for the petitioners had appearered before the tribunal on 04.10.2016, but he never submitted any report though he had assured for the same, ultimately, the learned tribunal has closed the right of the parties to produce documentary evidence as well as to argue the matter by an order below Exh.1 dated 14.10.2016. The learned tribunal observed that neither the parties nor the lawyers are interested to proceed with the matter and nothing has been done towards the claim petition. The learned tribunal further observed that the petitioners had never submitted any basic documents for alleged vehicular accident at the time of filing the claim petition and the petitioners had failed to prove the genuineness of the matter by entering into the witness box or as per Rule-211 of the Gujarat Motor Vehicles Rules, 1989 or otherwise.
4. It appears that the learned tribunal dismissed the Motor Accident Claim Petition holding that sufficient opportunities had been given to the petitioners and the lawyers to proceed Page 3 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022 C/SCA/21789/2022 ORDER DATED: 20/10/2022 further with the claim petition, but none of them had taken care to produce the documentary evidence in support of the matter. Learned advocate Mr. Hakim submits that the advocate on record had expired in the year 2013. Mr. Hakim further submits that no vakalatnama in-fact was on record and as per the observation of the learned tribunal, the application of Exh.16 to file vakalatnama and to submit the written submit was of the opponent no.3 - Insurance Company. The learned tribunal should have kept in mind the benevolent object of the Motor Vehicles Act and following the judgments and proposition of law laid down in the case of Jay Prakash Vs. National Insurance Company Ltd reported in (2010) 2 SCC 607 and in the case of Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324, the learned tribunal ought not to have dismissed the matter.
5. Further, when the prayer was made for restoration of the claim petition, the learned tribunal should have restore the same, since at the very first place there should not have been any dismissal of the claim petition. If at all the learned Page 4 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022 C/SCA/21789/2022 ORDER DATED: 20/10/2022 tribunal found that the advocate had not filed any documentary evidence or claimants had not produced any documentary evidence in support of the claim petition, then the learned tribunal should have call for form-54 in accordance with the Central Motor Vehicles Rules in connection with the FIR and should have decided the compensation in accordance with the documents filed under Form No.54 for grant of compensation.
6. In the case of Bharatbhai Narsinghbhai Chaudhary (supra), 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).Page 5 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022
C/SCA/21789/2022 ORDER DATED: 20/10/2022 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 28th January, 2004, under Order 9, Rule 4 of the Code, wherein, the applicants have described Page 6 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022 C/SCA/21789/2022 ORDER DATED: 20/10/2022 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)."
7. 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.Page 7 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022
C/SCA/21789/2022 ORDER DATED: 20/10/2022 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."
8. 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 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.
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C/SCA/21789/2022 ORDER DATED: 20/10/2022
9. 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 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 Page 9 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022 C/SCA/21789/2022 ORDER DATED: 20/10/2022 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.
10. In view of the proposition of law laid down in the above referred judgment, the Order dated 24.03.2022 passed in Civil Misc. Application No.192 of 2020 and the Order dated 24.10.2016 passed in M.A.C.P. No.3143 of 2001 are hereby quashed and set aside and the Motor Accident Claim Petition No.3143 of 2001 is ordered to be restored in the file of the concerned tribunal with a direction that both the parties shall be given sufficient time and opportunities to produce the documents as well as oral evidence in support of their case. The learned tribunal is directed to decide the matter in accordance with law.
11. With the above direction, the present petition stands disposed of.
(GITA GOPI,J) A. B. VAGHELA Page 10 of 10 Downloaded on : Sun Dec 25 04:30:19 IST 2022