VALIBEN Vs. GANPATBHAI PARVATBHAI LABDA

JUDGEMENT

(1.) Challenge in this petition under Article 226 /227 of the Constitution of India is to the order dtd. 19/11/2022 passed in M.A.C.M.A. No. 38 of 2022 by the learned Motor Accident Claims Tribunal (Auxiliary), Dahod at Limkheda (the Tribunal), whereby, an application, filed under O.9 R.9 of the Civil Procedure Code, 1908 (CPC) by the present petitioners, praying for to set aside the ex parte order, came to be dismissed. The petitioners have also challenged the judgment and award dtd. 31/8/2018 passed in Motor Accident Claim Petition No. 1019 of 2017 (claim petition) by the learned Tribunal whereby, the Tribunal was pleased to reject the said claim petition.

(2.) Heard, learned advocate Mr. Mohsin M. Hakim for the petitioners. It is submitted that the petitioners - claimants had preferred the claim petition before the learned Tribunal and along with the claim petition, a list of documents consisting FIR, Panchnama, Insurance Policy Receipt, Ration Card etc. was submitted. After issuance of Summons, the opponent Nos. 1 and 2 - respondent Nos. 1 and 2 herein i.e. Driver and the Owner, appeared through their learned advocate and filed Written Statement . The insurance company, though had appeared, not filed any reply. It is submitted that Issues were framed and the matter remained sine die for a long period and it was only at Exh. 16, the Issues came to be framed and the claim petition, thereafter, came to be dismissed on 31/8/2018 on the ground that the evidence has not been produced. The petitioners had also preferred the M.A.C.M.A. No. 38 of 2022 under O.9 R. 9 CPC for setting aside the ex parte judgment and award along with Civil Misc. Application No. 77 of 2020 for condonation of delay. The said Civil Misc. Application No. 77 of 2020 came to be allowed, however, M.A.C.M.A. No. 38 of 2022 came to be dismissed vide impugned order holding that the appeal would lie against the judgment and award.

(3.) Learned advocate Mr. Hakim for the petitioners submitted that the learned Tribunal, while dismissing the claim petition for default, has observed about the list of documents produced and an endorsement put by the insurance company. The learned advocate for the petitioners stated that there was no substantial defence from the respondents while the insurance company had not even placed on record any evidence statement and after a long period of time, the Issues came to be framed where, the old Motor Accident Claim Petition No. 457 of 2008, which was renumbered as Motor Accident Claim Petition No. 1019 of 2017. It is submitted that the learned Tribunal has made an observation that the learned Advocate on record for the applicants was though present before the Tribunal, had not produced any evidence. It is submitted that the learned Tribunal could have instructed the Advocate present to produce the evidence by giving him a notice or by sending notice to the claimants wherein the cases, the matters get prolonged for non framing of Issues. The learned advocate for the petitioners submitted that after framing of Issues, the learned Tribunal ought to have adopted a magnanimous approach by sending notice or informing the Advocate to proceed with the matter and in case where the stage of evidence gets closed, the learned Tribunal could have called for the information in Form No. 54 under the Central Motor Vehicle Rules, 1989 to verify the authenticity of the documents so produced by the claimants and could have given the judgment and award, following the directions as laid down in the decision in Jai Prakash v. National Insurance Co. Ltd. & Others , rendered by the Apex Court in Special Leave Petition (Civil) No. 11801-11804 of 2005 on 17/12/2009.