1. Leave to amend.
2. RULE. Shri Nagesh Sood, learned advocate waives service of notice of rule on behalf of respondent no. 2, who can be said to be the main contesting party.
3. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Civil Revision Application is taken up for final hearing today.
4. The present Civil Revision Application has been preferred by the applicant-original claimant to quash and set aside the impugned order passed by the learned Motor Accident Claims Tribunal (Auxiliary), Surendranagar dated 07/09/2010 in Civil Miscellaneous Application No. 128/2010 as well as the order passed by the learned Motor Accident Claims Tribunal (Auxiliary), Surendranagar dated 07/04/2010 in MACP No. 852/1999 by which the learned tribunal has dismissed the said Claim Petition under Order 9 Rule 5 of the Code of Civil Procedure.
5. Having heard Shri Ashok, learned advocate appearing for Shri Gateshaniya, learned advocate appearing on behalf of the applicant and Shri Nagesh Sood, learned advocate appearing on behalf of respondent no. 2-Insurance Company, who can be said to be the main contesting party and considering the facts and circumstances of the case and considering the averments made in the application, which was submitted while submitting Civil Miscellaneous Application No. 128/2010, it appears and it can be said that there was no malafide intention on the part of the applicant not to appear before the learned tribunal and not to give the evidence and/or not to serve the unserved respondents and, therefore, the learned tribunal has materially erred in dismissing the MACP and not restoring the MACP. Considering the fact that the Motor Vehicles Act is a benevolent Act for the benefit of the claimants who have suffered in the vehiciular accident, the learned tribunal ought not to have become too technical and/or in haste in disposing of the Claim Petition. The learned tribunal was required to consider the interest of the claimants rather than disposing of the Claim Petition.
6. Under the circumstances, the order passed by the Motor Accident Claims Tribunal (Auxiliary), Surendranagar dated 07/09/2010 in Civil Miscellaneous Application No. 128/2010 as well as the order dated 07/04/2010 dismissing MACP No. 852/1999 cannot be sustained and the same deserved to be quashed and set aside and the matter is to be remanded to the learned tribunal to decide MACP No. 852/1999 on merits after giving an opportunity to all the concerned. The learned advocate appearing on behalf of the applicant has stated at the bar that the applicant and/or his advocate shall give full cooperation to the learned tribunal in early disposal of the aforesaid MACP as the same would be in his interest also.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds. The impugned order passed by the Motor Accident Claims Tribunal (Auxiliary), Surendranagar dated 07/09/2010 in Civil Miscellaneous Application No. 128/2010 as well as the order dated 07/04/2010 passed by the Motor Accident Claims Tribunal (Auxiliary), Surendranagar in MACP No. 852/1999 in dismissing the same under Order 9 Rule 5 of the Code of Civil Procedure are hereby quashed and set aside and MACP No. 852/1999 is hereby ordered to be restored to file and the learned tribunal is directed to decide and dispose of the same on merits after giving an opportunity to all the concerned and after permitting the parties to lead the evidence in accordance with law and on its own merits. Rule is made absolute accordingly. No cost.
Direct service is permitted.
(M.R. SHAH, J.) siji