Sunday, 25 September 2016

Whether application for compensation under motor vehicles Act can be dismissed in default?

 The Act and the Rules framed there under 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.
6. 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 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. However, the learned Judge has rejected the said application by holding that there is no provision to restore the restoration application in the Code, and therefore, the application was dismissed by the learned Judge. In my opinion, the learned Judge has also failed to appreciate that the parties to such benevolent legislation should not be allowed to suffer on account of lapse or inaction on the part of their Advocate. The Hon'ble the Apex Court also expressed this view in its judgment in the matter of Rafiq (supra). The Court should adopt a liberal approach in dealing with and deciding such an application.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Civil Revision Application No. 263 of 2004
Decided On: 11.03.2011
Appellants: Bharatbhai Narsinghbhai Chaudhary and Ors.
Vs.
Respondent: Malek Rafik Malek Himantbhai Malek and Ors.
Hon'ble Judges/Coram:
P.P. Bhatt, J.



1. The applicants, by way of present petition, have challenged the legality and validity of order dated 2nd June, 2004, passed by the learned Motor Accident Claims Tribunal (Main), Navsari, whereby, the application for restoration being Misc. Civil Application No. 8 of 2004 was rejected on the ground that there is no provision to restore the restoration application in the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short). The applicants have challenged order dated 2nd June, 2004 passed in Misc. Civil Application No. 8 of 2004 as well as order dated 9th January, 2004, passed in Misc. Civil Application No. 99 of 2003, whereby, the application filed under Order 9, Rule 4 of the Code for restoration of Motor Accident Claim Petition No. 543 of 1995, was dismissed for default.
2. After preliminary hearing of this matter, by order dated 13th August, 2004, Rule was ordered to be issued. The Respondents are served. Learned Advocate Mr. U.M. Panchal is appearing on behalf of Respondent Nos. 1 and 2 and learned Advocate Mr. Salil Thakore is appearing on behalf of Respondent No. 3.
3. The learned Advocate for the applicants submitted that the impugned orders are erroneous and bad in law and require to be quashed and set aside. It is further submitted that the learned Judge has committed an error while considering the provisions of Order 9, Rule 4 of the Code. It is also submitted that the impugned orders are passed in violation of the principles of natural justice, as the same were passed without giving proper opportunities to the parties. The learned Advocate for the applicants, while referring to Annexure 'D' to the petition, pointed out that, issues were framed at Exh. 19 on 4th August, 1998 in the Claim Petition. Thereafter, no date of adjournment appears in the rojnama of 4th August, 1998. However, on 10th August, 1998, the rojnama speaks: "Called out. The parties and Advocates were present. Looking to the old file, it is not possible to hear this matter in near future. Hence, this suit is placed on sine die board. Parties be informed when it is to be taken on board for effective hearing". Thus, no specific returnable date for effective hearing was mentioned therein. On 22nd July, 2002, the rojnama speaks for the, "notice to be issued to Advocate for the applicants through Civil Judge (J.D.), Bardoli, which was returnable on 23rd August, 2002 ". It is submitted that, although the parties were also required to be informed by service of notice, as stated in the rojnama dated 10th August, 1998, the subsequent rojnama dated 23rd August, 2002 does not indicate that notice issued to the learned Advocate for the applicants has been returned, either served or unserved. In fact, rojnama dated 22nd July, 2002 and subsequent thereto, do not speak a single word, whether such notice, as stated therein, has been issued on which date. It is submitted that, in this set of circumstances, the learned Tribunal ought not have found fault, either with the absence of the applicants or their Advocates.
3.1. It is further submitted that the learned Tribunal ought not to have made any undue and unwarranted haste to dispose of the main application in absence of the applicants. In support of his submissions the learned Advocate for the applicants has referred to and relied upon a decision in the case of Rafiq v. Munshilal, reported in MANU/SC/0076/1981 : AIR 1981 SC 1400.
3.2. Last but not the least, the learned Advocate for the applicants submitted that Order 9, Rule 4 of the Code is required to be interpreted in its wider meaning and considering the fact that the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) being a beneficial and benevolent law for granting compensation to the injured victims or near relatives of the deceased, died of an accident. The provisions relating thereto, should be liberally construed so as to advance the cause of justice and not to sacrifice the justice at the niceties and technicalities of the law. Therefore, the learned Advocate for the applicants submitted that this application may be allowed and the orders impugned be quashed and set aside and the claim petition be restored.
4. The learned Advocate for the Respondent No. 3 has contended that the learned Tribunal has rightly rejected the applications filed by the applicants. Moreover, the High Court is not having powers or jurisdiction to entertain this revision application under Section 115 of the Code. In support of his submission, the learned Advocate has also referred to and relied upon a decision of the Hon'ble the Apex Court in the matter of Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation, reported in MANU/SC/1330/2009 : 2009 (8) SCC 646.
5. Considering the above submissions made by the learned Advocates appearing for the parties and looking to the facts of the case and position of law, applicable to the case on hand, this Court is of the view that the argument with regard to maintainability of this revision application under Section 115 of the Code, put forward by the learned Advocate Mr. Thakore, appearing for the Respondent No. 3-Insurance Company cannot be accepted for the simple reason that in view of the provisions of Section 110(3) of the Act, it was within the province of the State to constitute a Tribunal comprising of only one member and appoint the District Judges of their respective areas for exercising their powers as a Motor Accident Claims Tribunal within the territorial jurisdiction of their respective districts. In the State of Gujarat, the District Judges, which includes Additional District Judges, are designated as 'Tribunals' and are empowered to deal with and decide the cases, filed under the Act. 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.
5.1. The judgment cited by the learned Advocate for the Respondent No. 3 in the matter of Nahar Industrial Enterprises Ltd. (supra) was rendered in a case of a D.R.T. (Debt Recovery Tribunal). In Para 84 of the said judgment, it has been observed as under:
The. Debt Recovery Tribunal cannot pass a decree. It can issue only recovery certificates. (See Sections 19(2) and 19(22) of the Act). The power of the Tribunal to grant interim order is attenuated with circumspection. (See Dataware Design Labs (P) Ltd. v. State Bank of India, Comp. Cases at 184). Concededly in the proceeding before the Debt Recovery Tribunal detailed examination; cross-examinations, provisions of the Evidence Act as also application of other provisions of the Code of Civil Procedure like interrogatories, discoveries of documents and admission need not be gone into. Taking recourse to such proceedings would be an exception. Entire focus of the proceedings before the Debt Recovery Tribunal centres round the legally recoverable dues of the Bank.
5.2. Thus, in view of above observation, two Tribunals are differently structured and have established to serve totally different purposes. Therefore, this Court is of the view that the said decision will not be applicable and helpful to the Respondent No. 3.
5.3. The Hon'ble the Apex Court, in a decision in the matter of Rajasthan State Road Transport Corporation, Jaipur v. Poonam Pahwa (Smt.), reported in MANU/SC/0770/1997 : 1997 (6) SCC 100, has in Para 29 observed as under:
... The Motor Accident Claims Tribunal has been constituted under the Motor Vehicles Act to adjudicate disputes arising out of the claims on account of the motor accidents. The Motor Accident Claims Tribunal has been constituted by giving exclusive jurisdiction to determine such disputes by excluding the jurisdiction of the Civil Court. The Motor Accident Claims Tribunal being a statutory judicial Tribunal, specifically constituted for adjudicating the claims arising out of motor accidents, has a trappings of the Court. In Bhagwati Devi's case, this Court has applied the provisions of Section 25 of the Code of Civil Procedure for transferring the case from one Court to another by indicating that the Motor Accident Claims Tribunals are the Courts within the meaning of Section 25 of the Code of Civil Procedure. In Darshana Devi's case, this Court also applied Order 23 dealing with the provisions for suing by an indigent person in forma pauperis, even though, in Rule 20 neither Order 23 nor Section 25 of the Code of Civil Procedure have been made expressly applicable. Dr. Dhavan has taken pains in referring to a number of decisions of various High Courts, where, the underlying principles of the Code of Civil Procedure have been made applicable in the proceedings before the statutory judicial Tribunals on the footing that such provisions of Code of Civil Procedure are based on equitable principles for ensuring fair trial.
5.4. Under the Motor Vehicles Act, 1988, the State of Gujarat has framed Gujarat Motor Vehicles Rules, 1989. Rule 211 of Chapter X of the said Rules provides for procedure regarding compensation arising out of accident. Rules 213 and 229 of the said Rules provide as under:
213. Exercise of powers of Civil Court: The Claims Tribunal may exercise all the powers of a Civil Court, save insofar as, the same are not inconsistent with the provisions of the Motor Vehicles Act, 1988 and the rules framed there under.
229. Application of Code of Civil Procedure: Insofar as these rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the trial of suits.
5.5. Thus, aforesaid provisions made in the Rules make it clear that the Tribunal constituted under the Act shall follow the procedures laid down in the Code for the trial of 'suits'.
5.6. Now, looking to the facts of the present case and more particularly on perusal of the rojnama, on 4th August, 1998, Issues were framed at Exh. 19 and at that time, the applicants as well as the learned Advocate for the applicants were present but the learned Advocate for the Respondents was not present. The rojnama dated 10th August, 1998 also indicates that the matter was called out and the parties and the Advocates were present but looking to the pendency of other old cases, it was not possible to hear this matter in near future, and therefore, the matter was placed on 'sine die' board. It was also mentioned in the rojnama that, parties be informed when it is to be taken on board for effective hearing. Thereafter, on 22nd July, 2002, Notice was issued to the learned Advocates for the applicants as well as opponents and the same was sent for service to the Court of learned Civil Judge (J.D.), Bardoli. On 23rd August, 2002, the matter was adjourned as the Court timings were over and the matter could not be taken up. On 27th September, 2002 in absence of applicants as well as the learned Advocate for the applicants, the matter came to be dismissed for default. Thus, it appears that the learned Tribunal has failed to provide adequate and sufficient opportunity of hearing to the applicants or their Advocates. The learned Tribunal ought to have adjourned the matter in the interest of justice so as to provide sufficient opportunity of hearing to the applicants to put forward their case.
5.7. The Code confers discretion on the Court in the matter of passing such order. 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 adjourned the suit. In the event of dismissal of 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 Section 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 Section 115 of the Code. Hence, where the Court has acted with illegality or with material irregularity in the exercise of jurisdiction, a revision would lie against such an order.
5.8. In the case of General Manager, Karnataka State Road Transport Corporation v. Smt. Hasumathi Shidramappa Saladagi, reported in MANU/KA/0058/2000 : 2000 ACJ 1556, it is observed that, "The 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': Also, in the case of New India Assurance Co. Ltd. v. Ajay, reported in 1994 ACJ 1987 it is observed that, 'The Motor Accident Claims Tribunal being the Civil Court a revision against the order of the Tribunal would be maintainable'.
5.9. Section 175 of the Act, which speaks about the bar of jurisdiction of the Civil Court, has nothing to do with the application of provisions of the Code to the proceedings before the Claims Tribunal.
5.10. In a case of Hirabhai Nanubhai Desai v. State of Gujarat, reported in MANU/GJ/0164/1991 : AIR 1991 Guj. 1(Coram: S.B. Majmudar and K.J. Vaidya, JJ.) it has been observed as under:
The bar of the jurisdiction of the Civil Court is one thing and the application of the Code of Civil Procedure is entirely a different thing. Both stand on different footings. It has to be appreciated that the bar of the jurisdiction of the Civil Court has been created only and simply because the 'Act 1988' has created a special forum viz. The Motor Accident Claims Tribunal, vesting it with a special and exclusive jurisdiction to deal with the cases of motor accident claims arising out of the vehicular accidents. Obviously, no such claim proceedings for which the Special Motor Accident Claims Tribunals are constituted can lie before the Civil Court. Under the circumstances, Section 175 of the 'Act 1988' which speaks about bar of the jurisdiction of the Civil Court has nothing to do with the application of the provisions of the Code of Civil Procedure to the proceedings before the Claims Tribunal. As a matter of fact, Mr. Padiya forgets that Rule 229 of the 'Rules-1989' in terms permits the application of the Code of Civil Procedure, 1908, to the Tribunal proceedings.
(Emphasis supplied)
5.11. Thus, 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.
5.12. It is pertinent to note that a decision was rendered by the Division Bench of the Kerala High Court in the matter of M.R. Lukose, v. Govindan Nair (Kuttan), reported in MANU/KE/0070/1990 : AIR 1990 Ker 327 (Coram: K.T. Thomas and L. Manoharan, JJ.), while dealing with a petition under Article 227 of the Constitution of India, challenging an order by which restoration application was dismissed, the observations made therein make it clear about the legislative intent and indicates that it cannot be just and proper to adopt a mechanical and technical approach while dealing with the claim petitions under the Act and the Tribunals are expected to deal with such applications keeping in mind the legislative intent of a benevolent legislation.
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 fulfils 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 there under 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.
6. 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 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. However, the learned Judge has rejected the said application by holding that there is no provision to restore the restoration application in the Code, and therefore, the application was dismissed by the learned Judge. In my opinion, the learned Judge has also failed to appreciate that the parties to such benevolent legislation should not be allowed to suffer on account of lapse or inaction on the part of their Advocate. The Hon'ble the Apex Court also expressed this view in its judgment in the matter of Rafiq (supra). The Court should adopt a liberal approach in dealing with and deciding such an application.
6.1. The Motor Accident Claim Petition No. 543 of 1995 was filed for getting compensation as the wife of applicant No. 1 and mother of applicant Nos. 2 and 3 died on account of injuries sustained in a vehicular accident. The object behind the provisions of the Act is to provide adequate compensation to the victims, and therefore, while dealing with the application filed under the Act for getting compensation, the learned Presiding Officer, dealing with such application, is also expected to consider the facts and circumstances narrated before him in very objective manner with a view to do substantial justice, instead of entering into the niceties and technicalities. The Tribunal is required to adopt reasonable approach keeping in mind the object of such benevolent legislation. In the instant case, the learned Presiding Officer of the Tribunal failed to appreciate this basic rule while passing the impugned orders.
7. In my opinion, the orders passed by the Court below have caused serious prejudice to the applicant and have resulted in miscarriage of justice, and therefore, the same are required to be quashed and set aside. Accordingly, order dated 2nd June 2004, passed in Misc. Civil Application No. 8 of 2004 and order dated 9th January, 2004, passed in Misc. Civil Application No. 99 of 2003 by the learned Motor Accident Claims Tribunal, Navsari are quashed and set aside.
7.1. The Motor Accident Claim Petition No. 543 of 1995 is ordered to be restored to file.
7.2. Rule is made absolute to the aforesaid extent with no order as to costs.
Print Page

No comments:

Post a Comment