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2021 Supreme(Online)(KER) 50009
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942 OP (MAC).No.94 OF 2020 AGAINST THE ORDER DATED 19.02.2020 IN I.A. NO.2/2020 IN OP(MV)
NO.621/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL PETITIONER/PETITIONER/2ND RESPONDENT : THE ASSISTANT MANAGER, NEW INDIA ASSURANCE COMPANY LTD, MOTOR THIRD PARTY HUB, GOVERNMENT PRESS ROAD, THIRUVANANTHAPURAM.
BY ADVS.
SRI.A.A.ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA SRI.SURESH SUKUMAR SRI.ANZIL SALIM SHRI.CHACKO MATHEWS K. RESPONDENTS/RESPONDENTS/1ST RESPONDENT & PETITIONER : JOSH, TC 31/840-1, PULLI LANE,CHAKKAI, PETTAH.P.O, THIRUVANANTHAPURAM-695024.
ANILKUMAR, S/O MANI, PLAVILA VEEDU, NELLICODE, VADASSERIKONAM P.O.,
THIRUVANANTHAPURAM-695143. R1 BY ADV. SRI.GEORGE MATHEW R1 BY ADV. SMT.ELSA DENNY PINDIS R1 BY ADV. SRI.DIPU JAMES R1 BY ADV. SRI.V.S.VINEETH KUMAR R1 BY ADV. SRI.M.D.SASIKUMARAN R1 BY ADV. SHRI.MATHEW K.T. R1 BY ADV. SHRI.PRAVEEN S. R1 BY ADV. SHRI.SUNIL KUMAR A.G R1 BY ADV. SHRI.GEORGE K.V. R2 BY ADV. SRI.C.R.SIVAKUMAR THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 15.02.2021, ALONG WITH OP (MAC).97/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942 OP (MAC).No.97 OF 2020 AGAINST THE ORDER DATED 19.02.2020 IN I.A. NO.2/2020 IN OP(MV)
624/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL PETITIONER/PETITIONER/2ND RESPONDENT : THE ASSISTANT MANAGER, NEW INDIA ASSURANCE COMPANY LTD, MOTOR THIRD PARTY HUB, GOVERNMENT PRESS ROAD, THIRUVANANTHAPURAM BY ADVS.
SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA SRI.SURESH SUKUMAR RESPONDENTS/RESPONDENTS/ 1ST RESPONDENT & PETITIONERS 1 TO 4 : JOSH TC 31/840-1, PULLI LANE, CHAKKAI, PETTAH P.O., THIRUVANANTHAPURAM - 695 024.
BABY W/O.AJIKUMAR, CHARUVILA VEEDU, MAVINMOODU, KALLAMBALAM P.O., THIRUVANANTHAPURAM. ABI, (MINOR), AGED 13 YEARS, S/O.BABY REPRESENTED BY HIS MOTHER BABY, W/O.AJIKUMAR, CHARUVILA VEEDU, MAVINMOODU, KALLAMBALAM P.O., THIRUVANANTHAPURAM - 695 605. ANU,(MINOR AGED 7 YEARS), D/O.BABY , REPRESENTED BY HER MOTHER BABY, W/O.AJIKUMAR, CHARUVILA VEEDU, MAVINMOODU, KALLAMBALAM P.O., THIRUVANANTHAPURAM - 695 605 BHASKARAN, S/O.MUNDAN, OLIPPUVILA, VENKULAM, EDAVA, THIRUVANANTHAPURAM - 695 311. R2-R4 BY ADV. SRI.C.R.SIVAKUMAR THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 15.02.2021, ALONG WITH OP (MAC).94/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
[ OP (MAC).94/2020, OP (MAC).97/2020 ]
The Insurance Company through its Assistant Manager has come up with these petitions filed under Article 227 of the Constitution of India impugning the common order passed by the Motor Accidents Claims Tribunal, Attingal in O.P.(MV) No.621/2016 and O.P.(M.V)
No.624 of 2016.
2. As it is a short order, the same is extracted below, word by word, for convenience.
averment.
Hence the petition is allowed directing that the written statement of the both shall be added in the award immediately after the petitioner’s averments.
This order forms part of the earlier award.”
3. I have heard Sri Ziyad Rahman, the learned counsel appearing for the petitioner and Sri C.R. Sivakumar, the learned
counsel appearing for the party respondents. Though it is reported that the 5th respondent in O.P.(MAC) No.97 of 2020 is no more, the other respondents are his legal heirs.
4. I find considerable merit in the submission of Sri Ziyad Rahman, that the course adopted by the Tribunal is clearly illegal. The petitioner had filed the application to set aside the ex parte award and the Tribunal had chosen to allow the application. After allowing the application, the course open to the Tribunal was to make an order setting aside the award and to proceed with the claim petition by granting all opportunity to the petitioner to substantiate the contentions. Instead of adopting such a course, the Tribunal has issued directions to incorporate the written statement in the award but without setting aside the ex parte award. The setting aside of an ex parte decree by the court which passed it, is regulated by the provisions contained in Rule 13 of Order 9. In dealing with an application to set aside an ex parte decree, the court has to confine its attention to a consideration of the circumstances specified in Rule 13 and is not entitled to be guided by any other consideration. As rightly submitted by the learned counsel, by refusing to set aside the ex parte award, the petitioner was denied an opportunity to substantiate their legal and factual contentions. In that view of the matter, I am unable to sustain the impugned order.
5. At this stage, it is submitted by C.R. Sivakumar, that the earning member of a family has lost his life and due to the laches of the petitioner, the party respondents are reeling in financial turmoil. Having regards to the submissions, I direct the petitioner to deposit 50% of the amount awarded in O.P. (MV) No.621/2016 and O.P. (MV)
No.624 of 2016 before the Motor Accidents Claims Tribunal, Attingal. The amount disbursed shall be released to the party respondents as per procedure and in accordance with law. The Tribunal shall also strive to conclude the proceedings, expeditiously at any rate within a period of 3 months from the date of production of a copy of this judgment.
Sd/- RAJA VIJAYARAGHAVAN V JUDGE
APPENDIX OF OP (MAC) 94/2020 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION BEARING OP(MV)NO.621/2016 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL.
EXHIBIT P2 TRUE COPY OF THE AWARD DATED
29/11/2019, IN OP(MV)NO.621/2016 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL.
EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY THE POLICE IN CRIME NO.639/2016 OF KALLAMBALAM POLICE STATION.
EXHIBIT P4 TRUE COPY OF THE SCENE MAHASAR.
EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER IN
OP(MV)NO.621/2016.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED
19/02/2020. RESPONDENT'S/S EXHIBITS: NIL
