CHAMPABEN PRAVINBHAI MAKVANA Vs. DINESHKUMAR KALUBHAI PARMAR

JUDGEMENT

(1.) Learned advocate Mr. Nishit Bhalodi for the petitioners, referring to the judgment in the case of Bharatbhai Narsinghbhai Chaudhary and Ors. v. Malek Rafik Malek Himmatbhai, reported in 2011 (2) GLR 1324, submitted that the main petition and the delay condonation application which was filed along with restoration application came to be dismissed for default. Advocate Mr. Bhalodi submitted that no petition under the Motor Vehicles Act, 1988 (hereinafter referred to as "the M.V. Act") can be disposed of without deciding the same on merits, where in the present case, the claimants are widow, minors and aged mother.

(2.) MACP no.423/12 was filed under Sec. 166 of the Act. The Tribunal on 3/10/2017 dismissed the MACP, where on perusal of the order, it transpires that the dismissal is under Order IX of the Code of Civil Procedure, 1908 observing that the unserved summons is produced at Exh.7 and the claimants have failed to give new address of the opponents within seven days. From the record, it is submitted by Advocate Mr. Bhalodi that the insurance company is locally situated and hence, already been served. The opponent no.1 was a driver and owner of the vehicle and hence, Advocate Mr. Bhalodi submitted that after the order under Sec. 170 of the M.V. Act, the service of summons to the opponent no.1 would become immaterial, while the Tribunal has failed to consider the same fact and referring to Sec. 229 of the Gujarat Motor Vehicle Rules, considering the provision under Order IX of CPC, the claim petition came to be dismissed. Advocate Mr. Bhalodi submitted that though as noted by the Tribunal that the option was available to dispose the case on merits, the Tribunal dismissed the case for default under Order IX Rule 8 observing that the claimants are absent.

(3.) It is required to be noted that the matter remained pending for a very long time without framing of issues. Litigants may fail to keep track of the proceedings of the Court as those matters would not even come on board for the advocates on record to take the notice. The Tribunal has failed to frame the issues within reasonable time and without even giving a notice to the claimants or the parties of the matter of the issues being framed, the Tribunal without any hesitation dismissed the matters taking the satisfaction of disposal of the case, where the orders would clearly show that no justice has been done. Here in the present matter, the insurance company was served and was permitted to defend the case in accordance to Sec. 170 of the M.V. Act and as per Sec. 170 of the Act, when the insurance company has been impleaded as a party respondent, then it would have the right to contest the claim or any other grounds that are available to the person against whom the present claim has been made. Thus, in view of the provision of Sec. 170 of the M.V. Act, presence of opponent no.1 would not be necessary as the claim proceedings could have been proceeded in presence of the insurance company in failure of summons served against opponent no.1 and because of the presence of the insurance company on record, the Tribunal could have ordered to delete the opponent no.1 and in case where any adverse orders are required to be passed against the owner driver, then in view of Sec. 155 of the M.V. Act, the cause of action could survive and the proceedings could be against his estate. Hence, the observation of the Tribunal of dismissing the matter for default by invoking the provisions of Order IX Rule 8 of the CPC is erroneous on record in view of the observation in the case of Bharatbhai Narsinghbhai Chaudhary (supra), where this Court (Coram: Hon'ble Mr. Justice P.P. Bhatt) has referred to the provisions of Ss. 213 and 229 of the Gujarat Motor Vehicles Rules, 1989 and has observed in Paragraph 5.14 as under:-