// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Appeal No.2510/2005 Bhupendra Singh S/o Shri Rajendra Singh Versus Sohan Lal S/o Shri Suva Lal and Others Date of Order ::: 03.11.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Sandeep Jain, Counsel for appellant Shri Anoop Agarwal, Counsel for respondents No.1 AND 2 None present for respondent No.3 despite service of notice #### By the Court:- Heard learned counsel for the parties. This appeal, on behalf of the claimant- appellant is directed against the impugned Award dated 28th May, 2005 passed by the Motor Accident Claims Tribunal & Additional District Judge, (Fast Track) No.3, Tonk, whereby the claim application filed by the appellant has been dismissed. The learned counsel for the appellant contended that the claim application was initially pending before the Motor Accident Claims Tribunal, which was transferred under the Order of the High Court to the Court of Additional District Judge (Fast Track) No.3, Tonk, and the case was fixed for 7th May, 2005 and on that date the counsel for the parties // 2 // appeared and time was sought for producing applicant's evidence and case was fixed for 25th May, 2005. On 25.05.2005 the court granted time to produce the applicant's evidence and case was adjourned to 28th May, 2005, and on that date the Tribunal closed the applicant's evidence in absence of his counsel and dismissed the claim application on the same day. He contended that the approach of the learned Tribunal in deciding the claim application arising out of the Motor Vehicles Act, 1988, which is a welfare legislation, is not proper and, in these circumstances, the impugned order is liable to be set-aside and the case is required to be remitted back to the learned Tribunal to decide the same afresh on merits in accordance with the law. The learned counsel appearing for the respondents No.1 and 2 fairly and frankly submitted that the case be remitted back to the learned Tribunal with a direction to decide the claim application afresh in accordance with the law. I have considered the submissions of the learned counsel for the parties and examined the impugned order dated 28th May, 2005 and also the record of the learned Tribunal, which was summoned by this Court. It appears from the file of the Tribunal // 3 // that the order under Section 140 of the Motor Vehicles Act was passed on 12th September, 2002 and the case was fixed for framing of Issues on 16th January, 2003. However, on 1st November, 2002, an application was filed under Section 151 of the Code of Civil Procedure on behalf of the non-claimant No.3 and the case was fixed for reply and arguments on the said application. Thereafter the case was adjourned from time to time for one or the other reason and ultimately by the order of the High Court the case was transferred from the Motor Accident Claims Tribunal, Tonk, to the Court of the Additional District Judge (Fast Track) No.3, Tonk, where the case was fixed for 7th May, 2005. The claimant sought time to adduce evidence and on his request it was adjourned to 25th May, 2005 and on that date again time was sought for adducing evidence, which was allowed and the case was adjourned to 28th May, 2005. The Tribunal closed the evidence on that date as no one was present on behalf of the claimant up-to 11.50 AM and consequently dismissed the claim application for want of evidence. It appears that the case remained pending before the Motor Accident Claims Tribunal and it was fixed for claimant's evidence first time before the Additional District Judge (Fast Track) No.3, Tonk, on 7th May, 2005, which was // 4 // adjourned to 25th May, 2005 and again on 28th May, 2005 no one was present on behalf of the claimant and instead of dismissing the claim application in default the Tribunal dismissed it on merits. It also appears that the case was fixed for claimant's evidence only on 25th May, 2005 after transferring the case from Motor Accident Claims Tribunal and on the next date i.e. 28th May, 2005 the learned Tribunal ought to have granted one more opportunity or the claim application should not have been dismissed on merits. The claim application was filed in respect of injury sustained by the appellant in an accident arising out of use of motor vehicle. The provisions relating to it are beneficial in nature and claim application arising out of it should not be dismissed in such a manner. In these circumstances, I am of the view that the Tribunal committed an illegality in dismissing the claim application by the impugned order, which cannot be allowed to be sustained and the same is liable to be set-aside. Consequently, the appeal is allowed. The impugned order dated 28th May, 2005 is set-aside and the case is remitted back to the Tribunal with a direction to allow the appellant to lead evidence and to proceed in the matter further in accordance with the law. The parties are directed to appear before // 5 // the Motor Accident Claims Tribunal, Tonk, on 5th December, 2008. The respondents No.1 and 2 are represented through their counsel, therefore, the Tribunal will give fresh notice to the non- claimant-respondent No.3 Insurance Company only. No order as to costs. (Narendra Kumar Jain) J. //Jaiman//