Allowed

Bipinkumar Sendhabhai Patel v. Babubhai Shankarbhai Madhabhai Becharbhai

Gujarat HC18 Jun 2018SCA/3386/2018

Case brief

AI extract

What is this about?

This petition sought approval to quash an order refusing to condone delay in filing an application to set aside an ex-parte award. The High Court found prima facie evidence of lack of proper service, condoned the delay, set aside the refusal, and returned records to the Tribunal for merits.

What did the court decide?

Delay of 1 year, 4 months and 10 days is condoned; impugned order is quashed; files returned to Tribunal for merits.

Bipinkumar Sendhabhai Patel Vs Babubhai Shankarbhai… — Execution and Attachment | Gujarat HC (2018)

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C/SCA/3386/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 3386 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G. SHAH

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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BIPINKUMAR SENDHABHAI PATEL

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Versus

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BABUBHAI SHANKARBHAI MADHABHAI BECHARBHAI

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Appearance:

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MR RAVINDRA SHAH(1299) for the PETITIONER(s) No. 1 MR AMIT N PATEL(2749) for the RESPONDENT(s) No. 1 MR MAULIK J SHELAT(2500) for the RESPONDENT(s) No. 2

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

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Date : 18/06/2018 ORAL JUDGMENT

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Heard learned advocate Mr.Ravindra Shah for the petitioner, learned advocate Mr.Amit N. Patel for the respondent No.1 as well as learned advocate Mr.Maulik J. Shelat for respondent No.2 and perused the record.

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Page 1 of 9

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C/SCA/3386/2018 JUDGMENT

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The respondents have objected to allow this petition on various but technical grounds.

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The petitioner herein is original opponent no.2 in Motor Accident Claims Petition No.795 of 1998 before the Motor Accident Claims Tribunal, Mehsana. The Motor Accident Claims Tribunal (Aux.), Mehsana has, by its judgment and order dated 27.11.2009 partly allowed the claim petition of the present opponent No.1 awarding an amount of Rs.5,18,700/- to him. However, the Tribunal has dismissed the claim petition against opponent No.2 – insurance company on the ground that opponent No.1 – original claimant being victim of the road accident was travelling in a goods vehicle and, therefore, Insurance Company cannot be held liable to pay the compensation to him. Therefore, such award is only against owner of the vehicle i.e. original opponent No.1 in such claim petition who is petitioner in the present petition.

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Page 2 of 9

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C/SCA/3386/2018 JUDGMENT

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Since the Tribunal has not held the insurance company liable to pay compensation, original claimant being opponent No.1 has already preferred one First Appeal No.5251 of 2010 which is admitted by order dated 10.1.2011 and pending for consideration.

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It seems that, as pleaded by the present petitioner, when he was served with the notice of such appeal by the High Court, he came to know about the award dated 27.11.2009 and, therefore, he has preferred one Misc. Application being Application No.139 of 2011 before the Motor Accident Claims Tribunal, Mehsana to set aside the award on the ground that he was not properly served in original claim petition and, therefore, such award against him is ex-parte.

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However, while filing such application to set aside the award, there was delay of 1 year, 4 months and 10 days and, therefore, present petitioner has, on 6.5.2011 preferred an application before the

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C/SCA/3386/2018 JUDGMENT

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Tribunal to condone such delay.

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Meanwhile, such litigation has been transferred from Motor Accident Claims Tribunal, Mehsana to Motor Accident Claims Tribunal, Visnagar where it was renumbered as Motor Accident Claims Misc. Application No.14 of 2012. Such application was decided by 3^rd Additional Sessions Judge and Motor Accident Claims Tribunal (Aux.) at Visnagar by impugned judgment and order dated 23.1.2018. If we peruse the impugned judgment, it becomes clear that the Tribunal has, while discussing the application for condonation of delay assign one line reasoning that there is no reasonable ground to condone the delay of 1 year, 4 months and 10 days.

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Whereas, on perusal of original application to condone the delay, it becomes clear that in paragraph No.1 of the application, petitioner has categorically disclosed that he came to know about the award only when he received a summons from

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C/SCA/3386/2018 JUDGMENT

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the High Court regarding First Appeal preferred by the original claimant. It is also categorically disclosed in paragraph No.2 that person namely; Diptiben Bipinbhai Patel to whom summons of original claim petition was served has never conveyed the present petitioner about such service and pendency of such claim petition and, therefore, petitioner could not remain present before the Tribunal in main petition. It is also stated that after knowing such factual details, he has to consult his advocate at Ahmedabad and Mehsana and after getting the papers from the Court, which would not otherwise readily available, such application to set aside the ex-parte award was filed and, therefore, there is delay which needs to be condoned. In view of such specific averments in application, it becomes clear that the Tribunal has failed to appreciate that at-least ground for delay has been explained in the petition itself and, therefore, a statement in the impugned judgment that no ground whatsoever as assigned or that there is no reasonable ground to

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C/SCA/3386/2018 JUDGMENT

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condone the delay has no substance and, therefore, there is need to interfere with the impugned judgment.

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In above facts and circumstances, only question remains for consideration that whether grounds stated by the petitioner in not filing an application to set aside the ex-parte award in time can be considered as reasonable and sufficient cause for not filing such application in prescribed period of limitation or not.

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If we peruse the pleading and Records and Proceeding received from the trial Court, it becomes clear, as pleaded by the petitioner in his application under O-IX,R-32 to set aside the ex-parte award that probably notice / summons of original claim petition No.791/1998 was never served upon him or his family member on 18.8.1998. It is categorically pleaded and probably there is substance in such submission that such summons was served upon one

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C/SCA/3386/2018 JUDGMENT

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Diptiben Bipinbhai Patel and Bailiff report is also clear that summons is served on behalf of the petitioner to one Diptiben and there is signature of Diptiben Bipinbhai Patel in such notice with categorical disclosure in such notice to the effect that said Diptiben, has probably said that present petitioner was serving with them and they are relative. However, the person who has accepted the notice has probably nowhere discloses her relationship with the present petitioner and, therefore, petitioner has produced on record copy of his Ration Card to show that though person who has accepted notice on his behalf has disclosed her name as Diptiben Bipinbhai Patel, she is neither daughter nor wife of the present petitioner since name of the petitioner's wife is Jashodaben and daughter's name is Khushbuben.

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In view of above facts and circumstances, there is prima facie evidence at-least to confirm that probably notice / summons of main claim petition is

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C/SCA/3386/2018 JUDGMENT

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not properly served upon the present petitioner. Therefore, when petitioner came forward with a stand that he came to know only when he received summons regarding First Appeal preferred by the original claimant, there is substance in such submission and to that extent, such reason and cause is sufficient to condone the delay. Therefore, when there is sufficient cause for not filing an application for setting aside the ex-parte award in prescribed period of limitation, the impugned order needs to be quashed and set aside by allowing the application being Motor Accident Claims Misc. Application No.14 of 2012 so as to condone the delay in preferring an application to set aside an ex-parte award. Therefore, delay of 1 year, 4 months and 10 days in filing such application is condoned as prayed for.

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This petition is allowed in above terms. Rule is made absolute to that extent. DS permitted.

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C/SCA/3386/2018 JUDGMENT

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However, it is made clear that discussion and observation on merits in this order is purely limited for the purpose of deciding this Special Civil Application regarding condonation of delay only. Therefore, Tribunal shall now verify the factual details as disclosed hereinabove and that may be pleaded and proved by the petitioner before it to verify that whether original award is ex-parte against the petitioner and that whether it should be set aside on such grounds or not, without being influenced by any observation in this judgment. In view of such position, now R & P of Tribunal needs to be returned back immediately so as to enable the Tribunal to decide the application for setting aside the ex-parte award on merits.

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First Appeal No.5251 of 2010 be listed after decision in such application.

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(S.G. SHAH, J)

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*** KOTECHA

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Bipinkumar Sendhabhai Patel v. Babubhai Shankarbhai Madhabhai Becharbhai

Case brief

What is this about?

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Bipinkumar Sendhabhai Patel v. Babubhai Shankarbhai Madhabhai Becharbhai

Case brief

What is this about?

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What the court decided

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