Gujarat High Court
Thakor Bhagiben Wd/O Rameshji Kapurji vs Chaudhary Amratbhai Virabhai on 10 April, 2023
Author: Gita Gopi
Bench: Gita Gopi
C/FA/1183/2023 ORDER DATED: 10/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1183 of 2023
==========================================================
THAKOR BHAGIBEN WD/O RAMESHJI KAPURJI & 3 other(s)
Versus
CHAUDHARY AMRATBHAI VIRABHAI & 2 other(s)
==========================================================
Appearance:
MR TEJAS P SATTA(3149) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1,4
MASUMI V NANAVATY(9321) for the Defendant(s) No. 5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/04/2023
ORAL ORDER
1. Mr. Tejas P.Satta, learned advocate for the appellants states that claimants are challenging the order of dismissal dated 06.11.2017 passed in MACP No.262/2012 (Old No.41/2005) by 3rd Motor Accident Claims Tribunal (Aux.), Mehsana at Visnagar.
2. Mr. Satta submitted that the learned Tribunal without deciding the matter on merits has dismissed the claim petition, though their affidavit for examination-in- chief was produced at Exhibit-19. Mr. Satta states that the learned Tribunal dismissed the petition on the ground Page 1 of 6 Downloaded on : Wed Apr 12 20:43:23 IST 2023 C/FA/1183/2023 ORDER DATED: 10/04/2023 that reasonable opportunity was given to the applicant to prove the documentary evidence in support of the claim petition, but has failed to prove the documentary evidence. Mr. Satta stated that the learned Tribunal has observed in the order, of service of notice to opponent no.2, but has failed to file written statement or contest the claim petition and though opponent nos.1, 2 and 3 was served, none appeared before the Tribunal; hence, the claim petition proceeded ex parte against the opponents.
3. Mr. Satta submitted that as the examination-in- chief was on record and necessary documents in support of the claim petition have been filed, the documents were referred in paragraph-6 in the affidavit under Order 18 Rule 4, and when there is no resistance from the other side, learned advocate Mr. Satta submitted that the learned Tribunal ought to have believed and exhibited the same. Further, if the documents had not inspired any confidence, the learned Tribunal should have called for the documents in Form-54 from the Investigating Officer Page 2 of 6 Downloaded on : Wed Apr 12 20:43:23 IST 2023 C/FA/1183/2023 ORDER DATED: 10/04/2023 to verify the authenticity of the photocopies produced in list along with affidavit.
4. Mr. Satta stated that it is a fatal case, hence all the necessary documents were on record, which could be received by the claimant only from the police authorities; hence, there was no need to even doubt the documents so produced; in spite of that, the learned Tribunal came to the conclusion that the claimant has failed to prove issue no.1, and in fact, on record, there was no party to resist the evidence so produced by examination-in-chief at Exhibit-19.
5. Advocate Ms. Masumi V.Nanavaty submitted that the learned Tribunal was right in disposing of the matter, since the documents had not been proved. She states that though the Insurance Company has been served, they have not been vigilant to deal with the matter; however, she prays that opportunity be granted to all concerned to adduce evidence on record. Page 3 of 6 Downloaded on : Wed Apr 12 20:43:23 IST 2023
C/FA/1183/2023 ORDER DATED: 10/04/2023
6. The learned Tribunal could have followed the judgment in the case of Jai Prakash Vs. National Insurance Company Ltd., reported in (2010) 2 SCC 607 and could have decided the compensation relying upon Form-54. In the case of Bharatbhai Narsinghbhai Chaudhary & Ors. v. Malek Rafik Malek Himantbhai Malek & Ors., reported in 2011 (2) GLR 1324, it has been held as under:-
"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."
7. The learned Tribunal, in spite of observing that the proceedings are ex parte to be dealt with, and when the examination-in-chief has been produced by Exhibit-19 Page 4 of 6 Downloaded on : Wed Apr 12 20:43:23 IST 2023 C/FA/1183/2023 ORDER DATED: 10/04/2023 and in support, documentary evidence has been referred in the affidavit, the learned Tribunal failed to appreciate the fact that those documents have been received by the claimants from the police authorities, which the Tribunal itself is duty bound to have called for in Form-54 by following the judgment of Jai Prakash Vs. National Insurance Company Ltd. (supra). There is an absolute error on the part of the Tribunal. The Tribunal itself has failed to follow the mandated duty as laid down in the case of Jai Prakash Vs. National Insurance Company Ltd. (supra).
8. Since the Insurance Company has also prayed for an opportunity to produce the evidence on record, the same is required to be granted for doing substantial justice.
9. In the result, the order dated 06.11.2017 passed in MACP No.262/2012 (Old No.41/2005) by 3 rd Motor Accident Claims Tribunal (Aux.), Mehsana at Visnagar is quashed and set aside and matter is ordered Page 5 of 6 Downloaded on : Wed Apr 12 20:43:23 IST 2023 C/FA/1183/2023 ORDER DATED: 10/04/2023 to be restored in the file of the concerned Tribunal with direction that the same be concluded within a period of 6 months by granting opportunity to all the parties on record to adduce evidence and the matter be disposed of only on merits.
10. The present appeal stands disposed of accordingly. Record and Proceedings, if any, be sent back to the concerned Tribunal.
Direct service is permitted.
(GITA GOPI,J) Pankaj Page 6 of 6 Downloaded on : Wed Apr 12 20:43:23 IST 2023