HARISH RAYSINGH MALIVAD Vs. MEHMOOD MOHAMMAD HUSSAIN

JUDGEMENT

(1.) Mr. Dhruv R. Thakkar, learned advocate for the applicant submits that the applicant is before this Court since MACP no.27/2017 came to be dismissed for default vide order dtd. 28/3/2022 without any decision on merits. Mr. Thakkar submits that the restoration application was filed along with the delay condonation application since the applicant was not aware of the dismissal and there had been the delay of 9 months and 18 days in preferring the restoration application, but by order dtd. 1/7/2023, MACMA no.54/2023 came to be dismissed for default.

(2.) Mr. Thakkar submits that the main claim petition was filed for the minor and the learned Tribunal dismissed the main claim petition being MACP no.27/2017 observing that the notice has not been served to opponents no.1 and 2 and the matter has remained pending since long for non-service and it was observed that the applicant had failed to initiate any efforts for service and on being found that the applicant has remained absent continuously, the learned Tribunal had found that the applicant was not interested in proceeding and therefore, the matter came to be dismissed. Mr. Thakkar submits that the learned Tribunal has failed to even see that it was the matter of a minor and again by an order dtd. 1/7/2023, MACMA no.54/2023 on the very same ground came to be rejected considering the absence of the applicant and his lawyer of not taking any efforts to serve the opponents though a hand packet for the service of notice was given. Mr. Thakkar submits that the learned Tribunal could through on its own agency could have served the opponents. The observation of having given the hand packet itself suggests that the necessary process fee would have been paid. Mr. Thakkar submits that it is the duty of the Court on payment of the process fee to get the notice served. The prayer for receiving hand packet from the Court is only to assist the Court for the service. Mr. Thakkar further submits that respondent no.3-insurance company was on record which is of the local jurisdiction which was already served and since the matter was of the injury of the minor, the learned Tribunal could have followed the judgment in the case of Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited and Anr., reported in AIR 2014 SC 736 to grant the compensation, where presence of the driver and owner would not be even necessary and thus, stated that non-service of opponents no.1 and 2 who were from Madhya Pradesh could never have been made a ground for dismissal of the matter. Mr. Thakkar has relied upon the judgment dtd. 28/8/2018 passed by this Court in Special Civil Application no.2463/2018 and the judgment dtd. 31/7/2023 passed by the Hon'ble Supreme Court in Civil Appeal no.4758/2023.

(3.) Referring to the case in the case of Bharatbhai Narsinghbhai Chaudhary and Ors. v. Malek Rafik Malek Himmatbhai, reported in 2011