A review of an MACT order is not in accordance with law unless explicitly permitted by relevant provisions; the proper recourse is filing an application to set aside an ex-parte decree.

JUDGMENT

This order of mine shall dispose of two (2) original petitions;

O.P(MAC) No.92 of 2021 (Sirajudeen v. Maniyamma and others) and 93 of 2019 (Ramesh Subramanian v. Divisional Manager and others).

2. On 6.11.2011, Sri. Vijayan, unfortunately died in a motor vehicle accident. A claim petition was filed by wife, children and mother. In the aforementioned proceedings, the insurance company of the vehicle belonging to 3rd party as well as the owner and the driver were proceeded as ex-parte. On account of the aforementioned accident, FIR bearing No.706 of 2011 was registered with police station Nedumkandam and Ext.A6 final report was brought on record. On issue No.3, noticing the fact that the vehicle was covered by an insurance policy, the owner and the driver of the vehicle was indemnified, resulting into an award dated

31.12.2016 allowing compensation.

3. Instead of moving an application for setting aside or preferring an appeal, insurance company preferred a review petition on the ground that the report Ext.A6 comprehensively dealt with all the factors and it had come on record that the driver of the offending vehicle did not have a valid and effective licence.

Learned MACT on the basis of the aforementioned report, recalled the order by fastening the liability on the owner and driver of the offending vehicle.

4. Learned counsel representing the petitioner in O.P (MAC)

No.93 of 2019 and 92 of 2021 that the learned MACT does not have any power to review the order as the remedy was either to move an application under Order 9 Rule XIII of the Code of Civil Procedure or to prefer an appeal under Section 173 of the Motor Vehicles Act. Learned MACT failed to notice that the burden to prove whether the driver had the driving licence has not been discharged as per the provisions of Section 101 of the Indian Evidence Act without giving any opportunity to cross examine and disproved the same.

5. On the other hand, learned counsel appearing on behalf of the insurance company do not deny the fact that no application under Order 9 Rule XIII or appeal was preferred but the review. 6. I have heard the learned counsel for the parties and appraised the paperbook and of the view that the award of the learned MACT in accepting the review petition is not sustainable in the eyes of law as there is no provision in the Act for review of the order except that the MACT would have a trapping of the civil court in respect of recording and summoning of the witnesses and not beyond that as per the provisions of Rule 395 of the Kerala Motor Vehicle Rules , 1989. At the best, MACT ought to have called upon the Insurance company to either prefer an appeal or to move an application under Order 9 Rule XIII. Since much time has already lapsed, I am of the view that the review petition preferred on behalf of the Insurance Company can be treated as an application for setting aside the ex-parte order in terms of the provisions of Order 9 Rule XIII which is applicable as per the Rule referred above. Accordingly, the impugned order is set aside. Matter is relegated to the MACT to decide I.A Nos.2514 of 2018 and 2515 of 2018 in OP (MV) No.427 of 2012 as an application under Order 9 Rule XIII. Since the parties have already put in appearance before this Court, they would have a notice of the said application. The parties through their counsels are directed to appear before the learned MACT, on 7.2.2023. The petitioners herein ie., the owner and driver would file a reply to the application for setting aside the ex-parte decree and thereafter the learned MACT would give 2-2 effective opportunities to the parties to the lis to treat the case, in accordance with law.

The original petitions are disposed of.

Sd/- sab AMIT RAWAL JUDGE APPENDIX OF OP (MAC) 93/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE IA NO 2514/2018 IN OP(MV)

NO 427/2012 ON THE FILES OF ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIM TRIBUNAL 111, PATHANAMTHITTA EXHIBIT P2 TRUE COPY OF THE IA NO 25