The main legal point established is that the Tribunal cannot dismiss a claim petition for default without considering the merits of the case and must adopt a liberal interpretation of the law to fulfill the policy of providing compensation to victims.

JUDGMENT :

1. Mr.Kharadi, learned advocate for the appellant submits that MACP No.266 OF 2008 was filed claiming compensation, as the claimant sustained injury in the motor accident.

2. Learned advocate Mr.Kharadi submits that the claimant was unaware about the proceedings and the advocate of the claimant was also not aware about listing of the matter, as the matter was lastly listed on 28.01.2009 and since then, it was in dormant state and after more than 6 years, the matter was again listed on 08.07.2015. He further submits that since no online board system was back then, neither the learned advocate for the appellant nor the appellant were aware about the listing of the matter and ultimately on 16.08.2018, the right of the appellant’s adducing the evidence was closed and on 23.08.2018, the right of the opponent was also closed and ultimately, order of dismissal was passed on 30.10.2018.

3. In case of the Bharatbhai Narsinghbhai Chaudhary and Others v. Malek Rafik Malek Himmatbhai reported in 2011 (2) G.L.R. 1324 (supra), it has been held that the learned Tribunal has no power to dismiss the Claim Petition for default taking into consideration the object behind the Motor Vehicles Act, 1988, i.e. to provide adequate compensation to the claimants. The relevant part of the above decision is reproduced herein below as under :-

“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. (Para 5). 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 adjourn the suit. In the event of dismissal of the 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 Sec. 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 Sec. 115 of the Code. Hence, where the Court has acted with illegality or with material irregularity in the exercise of jurisdiction, a revision would like against such an order. (Para 5.7)

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. (Para 5.11)”

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 apperas 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. (Para 6