Ahsik M.G and Gopi M.M v Shine

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 20TH DAY OF DECEMBER 2016/29TH AGRAHAYANA, 1938 MACA.No. 1790 of 2016 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.522/2013 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA DATED 27-01-2016 APPELLANTS/RESPONDENTS 1 & 2: -------------------------------------- 1. AHSIK M.G, S/O.GOPI, MANDATHARA HOUSE, CHERUKUNNU, PERAMBRA, THRISSUR DISTRICT. 2. GOPI M.M, S/O.MANI, MANDATHARA HOUSE, CHERUKUNNU, PERAMBRA, TRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENTS/RESPONDENTS: ---------------------------------- SHINE, S/O.VELAMPARAMBIL BALAKRISHNAN, PUTHENCHIRA DESOM, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.L.BITHO BY ADV. SMT.V.A.JISHA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------M.A.C.A.No.1790 of 2016 ------------------------------------Dated 20[th] December, 2016 ## **JUDGMENT** ## **Ravikumar, J.** Respondents 1 and 2 who are respectively the rider and owner of the alleged offending vehicle which is a motor bike bearing Reg.No.KL-45-G 4906 involved in the accident that led to the filing of O.P.(M.V)No.522 of 2013 before the Motor Accident Claims Tribunal, Irinjalakkuda filed this appeal challenging the judgment and award passed therein. The respondent herein was the petitioner therein. He filed the said claim petition under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained by him in a motor vehicle accident occurred on 6.12.2012. The accident is a collision between two motor cycles, one belonging to the claimant and the other to the 2[nd] appellant. Both the motor cycles were proceeding towards the same direction and going by the averments, the motor cycle ridden by the first appellant hit against the rear side of the motor cycle ridden by the respondent. The Tribunal as per the impugned judgment and award granted a total compensation of 2,61,340/- along with interest₹ at the rate of 8% per annum from 20.5.2013 till realisation. The main M.A.C.A.No.1790/2016 2 grievance of the appellants is that even after setting aside the order setting them _ex parte_ on 26.11.2015 the Tribunal had not afforded them an opportunity to adduce evidence. The contention of the appellants is that after setting aside the _ex parte_ order written statement filed by them was accepted and instead of affording them an opportunity to adduce evidence the Tribunal posted the matter for hearing. In the said circumstances, it is submitted that the award in question was passed in blatant violation of the principles of natural justice and therefore, it is liable to be interfered with. 2. We have heard the learned counsel for the appellants and also the learned counsel appearing for the respondent/claimant. 3. The learned counsel appearing for the respondent/claimant submits that it cannot be said that the Tribunal had declined an opportunity to the appellants to adduce evidence and in fact, it is a case where the appellants had not availed the opportunity to adduce evidence. The contention is that the Tribunal set aside the _ex parte_ order on 26.11.2015 and thereafter posted the matter for hearing on four occasions and even then, the appellants had not filed any application to re-open the evidence and to permit them to adduce M.A.C.A.No.1790/2016 3 evidence. We have perused the certified copy of the court proceedings. It would reveal that on 9.1.2015 the appellants viz., respondents 1 and 2 before the Tribunal were set _ex parte_ and the case was posted for evidence. It would further reveal that on 26.11.2015 the _ex parte_ order passed against the appellants herein was set aside and the written statement was accepted as per the order in I.A.No.4480 of 2015. On that day PW1 was examined. It is pertinent to note that on the same day itself the matter was posted to 7.12.2015 for final hearing. True that, the appellants had not filed an application for reopening the evidence. It is a fact borne out from the records that on 26.11.2015 after setting aside the _ex parte_ order and accepting the written statement the Tribunal posted the matter only for hearing. The nature of the enquiry before the Tribunal is summary in nature. In the said circumstances, it cannot be said that all the provisions under the Code of Civil Procedure _proprio vigore_ will apply to a claim petition before the Motor Accidents Claims Tribunal. In other words, it is evident that provisions of CPC which are specifically made applicable alone will have to be strictly adhered to in a proceedings before the Claims Tribunal though in terms of the provisions under Section 169 of the Motor Vehicles Act the Tribunal acts generally as a `Court' and vested with all necessary powers of CPC. But, in respect of certain M.A.C.A.No.1790/2016 4 matters, not covered specifically by the provisions of CPC, it shall have to follow only a procedure which would be consistent with the principles of fair play, propriety and natural justice. See the decision of the Hon'ble High Court of Punjab and Haryana in **Sona** v. **General Manager, Haryana Roadways (1996 ACJ 421)** . No provision was brought to our notice making the related provisions under the CPC applicable to Tribunal in the matter of setting parties _ex parte_ and in setting aside such orders. Therefore, the question is whether the Tribunal followed the proceedings which are consistent with the principles of natural justice. As noticed hereinbefore, the order setting the appellants _ex parte_ was set aside and the written statement filed by them was accepted and thereafter the Tribunal posted the matter for hearing. Evidently, the Tribunal passed the impugned award only after six postings. Hence, we are of the view that realising the fact that the Tribunal had posted the matter only for hearing the appellants could have moved an application seeking re-opening of the evidence. Admittedly, they had failed to do so. The appellants cannot attribute illegality in the procedure followed by the Tribunal in such circumstances. We have already noted that the proceedings of enquiry before the Tribunal is nothing but summary in nature. As noticed hereinbefore, the accident in question is a collision between two motor M.A.C.A.No.1790/2016 5 cycles. In the written statement the appellants have specifically taken up a contention that the claimant had also contributed to the accident. Taking note of the nature of the pleadings and the fact that the application filed by the appellants for setting aside the _ex parte_ order was allowed on 26.11.2015 and the written statement was also accepted, we are of the view that in the interest of justice it is only just and proper to afford the appellants a last opportunity. But, at the same time, we are also of the view that it cannot be said that the appellants had not contributed to create this kind of a situation. Evidently, it is a self invited one. In such circumstances, we are of the view that it can be allowed only on terms. Therefore, we are inclined to allow this appeal on terms. Accordingly, this appeal is allowed and the impugned judgment and award is set aside to enable the Tribunal to consider the matter afresh after affording both sides an opportunity to adduce evidence on condition that the appellants will pay a cost of 20,000/-₹ to the respondent/claimant. The said amount shall be deposited by the appellants before the Tribunal within a period of 15 days from the date of receipt of a copy of this judgment. It is made clear that failure to comply with the direction regarding deposit of the said amount will M.A.C.A.No.1790/2016 6 revive the impugned judgment and award passed by the Tribunal dated 27.1.2016 automatically and in such eventuality, it will be open to the respondent/claimant to resort to steps for the execution of the said award dated 27.1.2016. In case the appellants comply with the direction and deposit the amount of costs, the judgment and award will stand set aside as ordered and the Tribunal shall, after affording the parties an opportunity to adduce evidence, dispose of the matter taking note of the fact that the claim petition is of the year 2013, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment by the Tribunal. In case the appellants deposit 20,000/- within the above stipulated₹ period, it will be open to the claimant/respondent to file appropriate application before the Tribunal for refund of the statutory deposit of ₹ 25,000/- and in such eventuality, the Tribunal shall pass appropriate orders for its release. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS Continued at Page No.7 M.A.C.A.No.1790/2016 7 The words “ **claimant/respondent** ” occurring in the last sentence of the judgment dated 20/12/2016 in M.A.C.A.No.1790/2016 are corrected and substituted by the words “ **appellants/respondents 1 and 2 in the O.P.(M.V)** ” as per order dated 28/3/2017 in I.A.No.998/2017 in M.A.C.No.1790/2016. Sd/Registrar (Judicial)