Taking into consideration the reasons given hereinabove, the learned Tribunal has failed to take into consideration the benevolent object of the M.V. Act, where no claim petition could be dismissed for default without any decision on merits. The learned Tribunal is always require to decide the claim petition on merits, if at all, after giving a reasonable time, the claimant himself would not be in a position to adduce evidence, then the learned Tribunal ought to have called for Form No.54 from the police for verifying the facts and should have granted the compensation amount accordingly.{Para 8}
Gujarat High Court
L H Of Sanjaybhai Ashokbhai Vaghela vs Ashokbhai Bachubhai Vaghela (Parties ... on 12 October, 2022
Bench: Gita Gopi
R/Special Civil application No.6152/2022
1. Advocate Ms. S.H. Barot for Mr. Shashikant Parmar, learned advocate for the petitioners, submits that the challenge has been given to the order of dismissal of the claim petition passed on 24.08.2021 by Motor Accident Cliams Tribunal (Auxi.) Nadiyad in M.A.C.P. No.166 of 2018.
2. Ms. Barot submitted that on the very same day, an application, Exhibit-25, was moved praying for an adjournment on the ground of applicant being unwell. The learned Tribunal without giving due consideration to the application, rejected the adjournment application and dismissed the claim petition. Ms. Barot submitted that taking into consideration the object of the M.V. Act, there cannot be any dismissal of the claim petition. She also submitted that the learned Tribunal even while rejecting the adjournment application ought to have posted the matter for evidence of the opponents and should not have straightway dismissed the petition.
3. In the judgment 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. The relevant part of the above decision is reproduced herein below:-
"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 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 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. 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)."
4. The learned Tribunal while dismissing the application, on perusing the Rojnama, has observed that the matter was for the evidence and it stood adjourned on several occasions would be on the ground that the applicant shall file affidavit and produce the evidence in support of the claim petition. The learned Tribunal on the application filed by the Advocate of the claimant for adjournment rejected the same and observed that it was constrained to pass an order to close the stage of evidence of the claimant and found that in absence of any evidence led before the Tribunal; in spite of several opportunities to the claimant, the Tribunal had no option, but to dismiss the claim petition in absence of any cogent evidence substantiating the claim petition and, accordingly the Tribunal decided the issue nos.1 and 2 in negative and passed final order of dismissal below issue no.3.
5. The contention has been rightly raised by Ms. Barot that the learned Tribunal even after closing the evidence of the claimant ought to have posted the matter for the evidence of the opponents, which the learned Tribunal has failed to do so. The learned Tribunal could have called for Form-54 from the Investigating Officer and should have granted compensation money in accordance to the evidence, which could have been brought by the Investigating Officer by Form No.54.
6. Here, in the present matter, Advocate for the claimant was very much present on the date of dismissal and a prayer was made for adjourning the matter, as because of ill health the claimant could not appear before the Tribunal to produce the evidence. The learned Tribunal should have granted adjournment and should have directed the claimant to appear on the next adjournment for production of the evidence.
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.
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."
7.1 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.
7.2 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 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.
8. Taking into consideration the reasons given hereinabove, the learned Tribunal has failed to take into consideration the benevolent object of the M.V. Act, where no claim petition could be dismissed for default without any decision on merits. The learned Tribunal is always require to decide the claim petition on merits, if at all, after giving a reasonable time, the claimant himself would not be in a position to adduce evidence, then the learned Tribunal ought to have called for Form No.54 from the police for verifying the facts and should have granted the compensation amount accordingly.
9. Hence, in view of the above reasons, the present petition is allowed. The order dated 24.08.2021 passed by Motor Accident Claims Tribunal (Auxi.) Nadiyad in M.A.C.P. No.166 of 2018 is quashed and set aside and the matter is ordered to be restored in the file of the concerned Tribunal. The Tribunal concerned is directed to take evidence from both sides by giving enough and sufficient opportunities for production of the evidence and decide the matter on merits and in accordance with law.
(GITA GOPI,J) Pankaj
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