URMILABEN Vs. ABDULLATIF ABDULRAZZAK KAZI

JUDGEMENT

(1.) The petitioner - original claimant aggrieved by the order below Exhibit I in M.A.C.M.A. No.149 of 2022 (in MACP No.1011 of 2005) dtd. 28/7/2022 passed by the learned Motor Accident Claims Tribunal (Auxi.), Panchmahals at Godhra as also the judgment and award dtd. 28/2/2018 in M.A.C.P. No.1011 of 2005 passed by the learned Motor Accident Claims Tribunal (Aux. 7), Panchmahals at Godhra has filed the present petition.

(2.) Learned Advocate for the petitioner Mr. Mohsin M. Hakim submits that at the first instance, the learned Tribunal ought not to have dismissed the petition and further, in accordance with the decision 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 had the power to restore the application where it was not even necessary for the claimant to make a specific prayer. It is also submitted that if a specific prayer is made for restoration of the application, the learned Tribunal ought to have restored the matter and therefore, prayer is made to set aside the ex-parte order and award which has been passed. It is further submitted that necessary documents were already produced on record and the same is reflected in the judgment and award passed by the learned Tribunal in M.A.C.P. No.1011 of 2005 and on that ground, it should have allowed the case on merits rather than dismissing the matter only on the ground that the claimant has not produced the Affidavit under Order 18 Rule 4 of the Civil Procedure Code, where specifically in the case of Jai Prakash v. National Insurance Company Limited reported in 2010 2 SCC 607, the Hon'ble Apex Court had directed the Tribunal to call for the information under Form No.54 of the Central Motor Vehicle Rules and therefore, it is submitted that the Affidavit of the claimant was not at all necessary for the Tribunal to decide the matter on merits. It is further submitted that the matter was pending since long from the year 2005 and sine die and later the issues were framed and therefore, the claimant nor the claimant's Advocate could not have any information of the issues being framed nor the Advocate would be in a position to get an idea of the proceedings of the trial Court since no substantial progress was found on record after the institution of the claim petition.

(3.) In the case of Bharatbhai Narsinghbhai Chaudhary (supra), it has been held as under :-