C/SCA/16205/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16205 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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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ADAMBHAI MAHAMADBHAI VORA....Petitioner(s)
Versus
GUJARAT STATE TRANSPORT NIGAM....Respondent(s)
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Appearance:
MR TEJAS P SATTA, ADVOCATE for the Petitioner(s) No. 1
MR HARDIK C RAWAL, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 13/04/2016
ORAL JUDGMENT
1.Heard learned advocate Mr.Tejas P.Satta for
the petitioner and learned advocate Mr.Hardik
C.Rawal for the respondent.
2.The petitioner herein is original claimant in
Motor Accident Claim Petition No.431 of 1998
filed before the Motor Accident Claims
Tribunal, Ahmedabad (Rural). Such claim
petition was dismissed for default in absence
of the petitioner, when it was listed for
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final disposal by an order dated 27.7.2009.
By such order, the Motor Accident Claims
Tribunal (Main), Ahmedabad Rural has observed
that petitioner and his advocate have
remained absent when the matter was called
out and that sufficient time and opportunity
has been given to the petitioner, but it
appears that petitioner has no interest to
proceed with the matter, hence, the claim
petition is dismissed. Such claim petition
was filed because of accidental injuries
sustained by the claimant on 5.9.1997 when he
was traveling in S.T. Bus, which met with an
accident when the driver of the S.T. Bus
could not control the bus because of his rash
and negligent driving on Viramgam Highway and
thereby, the bus had turned turtle and gone
into the road-side ditch. The petitioner had
received several injuries on different parts
of the body for which he has claimed
Rs.25,000/- as compensation. When such
petition was dismissed for want of
prosecution, the petitioner has filed
restoration application before the same
Tribunal, but, because there was delay in
filing such restoration application, the
petitioner has filed one Civil
Misc.Application No.287 of 2014 to condone
the delay of four years, seven months and six
days in filing such application.
3.By impugned judgment and order dated
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24.8.2015, the Motor Accident Claims Tribunal
(Auxiliary) and 8th Adhoc Addl.District
Judge, Ahmedabad (Rural) at Mirzapur has
dismissed the application by refusing to
condone the delay.
4.If we peruse the impugned judgment, it
becomes clear that the Tribunal has relied
upon the order of dismissal wherein the
concerned Tribunal at the relevant time has
observed that petitioner is not interested to
proceed with the matter. However, when
restoration application with an application
to condone the delay is preferred, now, what
is required to be looked into and appreciated
by the Tribunal is the reason for the delay
and non-appearance on a given date for which
claim was dismissed for default.
Unfortunately, in impugned judgment, the
Tribunal has relied upon the first order only
and therefore, in any case, there is a need
to interfere with such an order, which prima
facie results into not only irregularity, but
illegality, whereby rights of the petitioner
to claim compensation has been curtailed
without adjudication of his petition, which
otherwise needs to be adjudicated even in
absence of the petitioner and based upon the
information received by the Tribunal in Form
No.54 from the investigating agency, which is
a statutory necessity under the Act.
Alternatively, when such claim petitions are
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filed with an affidavit on day one and which
is to be decided in summary manner, there is
no reason for the Tribunal to dismiss the
petition for want of prosecution rather than
to award just and reasonable compensation
based upon the available evidence on record,
if any, supported by any other evidence, and
in absence of the same, then, atleast based
upon the affidavit, which is otherwise
produced as examination-in-chief with the
claim petition itself.
5.Though such issue relating to main petition
may be remote at this stage of deciding an
application to condone the delay, the fact
remains that the Tribunal has failed to
appreciate that there is sufficient cause in
not filing the restoration application in
time and thus committed error in holding that
there is no sufficient cause.
6.Though it is specifically averred by the
petitioner, Tribunal has failed to realise
that there was no fault on the part of the
petitioner - claimant being the victim of the
accident, but only of his advocate, who has
not bothered to call him at the relevant time
to adduce evidence and to proceed further in
his claim petition. When Tribunal has
recorded such position, it would have been
appropriate for the Tribunal to extend the
benefit to the victim – claimant rather than
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extending benefit to tort-feasor, who is
responsible for payment the compensation. In
fact, in such cases, compensation needs to be
paid immediately after the incident, without
entering into technicalities, but
unfortunately, Insurance Companies and State
Road Transport Corporation are taking hyper
technical views in all such matters to avoid
their responsibility to pay compensation to
the victims. It is also to be borne-in-mind
that victims of road accident are not
litigants in its true sense, but they are
real victim of the mishap and that the
legislature has enacted the provisions under
the Motor Vehicles Act for such claimants as
a benevolent piece of legislation in favour
of the victim and therefore, its true benefit
should be extended to all such claimants
without following technicalities. The
judgment in Jamnashanakr Ratilal Pandya Vs.
Babulal Ramgopal Patidar & Ors. in Special
Civil Application No.9761 of 2008 dated
16.9.2008 confirms such view. It cannot be
ignored that the petitioner is a senior
citizen and therefore, he has a reason to
plead that he was not able to proceed further
in time in absence of specific instructions
from his advocate when he has engaged an
advocate. It cannot be further ignored that
in such cases, in fact the Tribunals are
granting permission to engage advocate and
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therefore, if there is negligence on the part
of the advocate for not remaining present,
then, initially Tribunal shall recall the
order below the application seeking
permission to engage the advocate and thereby
to issue notice upon the petitioner to remain
present before the Court in final hearing.
7.In view of above facts and circumstances, the
petition needs to be allowed considering the
fact that the law of limitation is quite well
settled which confirms that no-one should be
non-suited on technical grounds. For such
principle, I am relying upon following
citations:-
(1) (2010)2 SCC 114 Dalipsingh Vs. State of UP,
(2) (2012)8 SCC 524 Cicily Kallarackal Vs.Vehicle
Factory,
(3) (2012)5 SCC 157 Maniben Devraj Shah
Vs.Municipal Corporation of Brihan Mumbai,
(4) (2012)3 SCC 563 Post Master General & Ors.
Vs. Living Media India Ltd.
(5) (2010)8 SCC 685 Balwant Singh (Dead)
Vs.Jagdish Singh,
(6) (2010)5 SCC 459 Oriental Aroma Chemical
Industries Ltd. Vs. Gujarat Industrial
Development Corporation,
(7) (2008)17 SCC 448 Pundlik Jalam Patil (Dead)
Vs. Executive Engineer, Jalgaon Medium
Project,
(8) (1997)7 SCC 556 P.K. Ramachandran Vs.State of
Kerala,
(9) 2012(7) SCALE 230 B.Madhuri Goud Vs.
B.Damodar Reddy,
(10) AIR 2012 SC 640 Abdul Gafoor Vs. State of
Bihar,
(11) AIR 2011 SC 428 Delhi Development Authority
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Vs. Bhola Nath Sharma,
(12) AIR 2011 SC 977 Union of India Vs.Giani,
(13) AIR 2011 SC 1150 Parimal Vs. Veena,
(14) AIR 2010 SC 1445 State of J & K Vs.Mohmad
Maqbool Sofi,
(15) AIR 2009 SC 1927 State of Jharkhand Vs.Ashok
Kumar Chokhani,
(16) AIR 2009 SC 2577 State of Karnataka Vs.Y.
Moideen Kunhi,
(17) AIR 2009 SC (Supp.) 695 State (NCT of Delhi)
Vs. Ahmed Jaan,
(18) AIR 1984 SC 1744 O.P. Kathpalia Vs.Lakhmir
Singh (Dead) by 3 Judges bench of Apex Court,
(19) AIR 2008 SC 1688 Sinik Security Vs. Sheel
Bai, AIR 2009 SC 2170 D.D. Vaishnav Vs. State
of M.P. and AIR 2009 SC (Supp.) 195
Commissioner, Nagar Parishad, Bhilwara
Vs.Labour Court, Bhilwara,
(20) AIR 1987 SC 1353 Collector, Land Acquisition, Anantnag Vs. Mst. Katiji.8.In view of above facts and circumstances, the petition is allowed. Learned advocate Mr.Hardik C.Rawal has submitted that in view of such situation, when petitioner has not bothered to proceed further in his claim
petition for almost a decade, it should be made clear that he is not entitled to claim
interest for the period of such delay. However, at this stage of deciding the
application to condone the delay, no such condition can be imposed, but it is made
clear that respondent can raise the issue before the Tribunal when main petition is
heard on its own merits and it would be appropriate for the Tribunal to decide such
issue in accordance with law.
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(S.G.SHAH, J.)
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