Kadeeja K.V. v. Dhanoop T. and Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939** **Tr.P(C).No. 735 of 2017** **----------------------OPMV 596/2015 of MOTOR ACCIDENT CLAMS TRIBUNAL, MANJERI, KOZHIKODE** **---------** **PETITIONER/APPLICANT :** **--------------------** **KADEEJA K.V.AGED 50 YEARS, W/O.SULTHAN P.K., JUJUNU VILLA, THANNISSERI, CHENAKKALANGADI, THENHIPPALAM, MALAPPURAM-673636.** **BY ADV.SRI.K.MUHAMMED SALAHUDHEEN** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** **1. DHANOOP T., S/O.DASAN, THAYYIL HOUSE, THENHIPALAM P.O., MALAPPURAM-673636.** **2. ORIENTAL INSURACNE CO.LTD. JASEELA COMPLEX, BYPASS JUNCTION, NILAMBUR ROAD, MANJERI-676121.** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp 08/3/2018** **Tr.P(C).No. 735 of 2017** ## **-----------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **----------------------** **ANNEXURE A1: COPY OF THE CLAIM PETITION IN O P(MV)NO. 596/2015 DATED 8/4/2015 FILED BY THE CLAIMANT ON THE FILE OF HONOURABLE MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **RESPONDENT'S ANNEXURES : NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **bp 08/3/2018** ## ALEXANDER THOMAS, J. ----------------------------Tr.P(C).No.735 Of 2017 --------------------------------Dated this the 5th day of March, 2018. ## O R D E R The prayer in this Transfer Petition (Civil) is as follows: “......................... to pass appropriate order/direction, transferring O.P(M.V).No.596/2015 on the file of Hon'ble Motor Accident Claims Tribunal, Manjeri to Hon'ble Motor Accident Claims Tribunal, Kozhikode in the interest of justice.” 2. Heard Sri.Mohammed Salahudheen, learned counsel for the petitioner. Though notice has been duly served on the respondents, there is no appearance for those parties. 3. The petitioner herein is the claimant in O.P(MV).No.596/2015 on the file of the Motor Accidents Claims Tribunal, Manjeri, Malappuram District. It is the case of the petitioner that she had sustained serious injuries in the accident, which occurred on 5.10.2014 at bout 6:00 p.m., while she was walking through the extreme side of Mathapurzha Road, which is within the limits of Thenhippalam Police Station, Malappuram District. That Anx.A-1 claim was filed before the Motor Accidents Claims Tribunal, Manjeri, which was numbered as O.P(MV).No.596/2015. ::2:: Tr.P(C).No.735 Of 2017 4. According to the petitioner, she is now working as a Primary Teacher at Chenakkalangadi and the distance from her residence to MACT, Tirur would come to more than 40 kms. and that the petitioner has suffered serious injuries and the Doctor has instructed to her not to undertake long travels due to the physical inconvenience caused to her in the accident. Accordingly, the petitioner seeks transfer of the case from the M.A.C.T., Manjeri to M.A.C.T., Kozhikode. According to the petitioner The Tribunal at Kozhikode is hardly 22 kms away from her residence. The Transfer Petition has been filed by virtue of the enabling provisions conferred under Rule 374 of the Kerala Motor Vehicles Rules, 1989 framed under Sec.3 of the provisions contained in the Motor Vehicles Act. Rule 374 under Chapter X of the Kerala Motor Vehicles Rules reads as follows: “R.374. Power of High court to transfer applications .-(1) The High Court may transfer an application from the file of one Claims Tribunal before whom the application is pending to that of any other Claims tribunal,(a) if, the Claims Tribunal before whom the application is pending is personally interested in the application and reports the matter to the High Court; or (b) if an application for transfer by any party to the application, the high Court is satisfied that there are sufficient grounds for such transfer. (2) A Claims Tribunal to whom an application is so transferred under sub-rule (1) may, subject to special directions in the order of transfer, proceed either _de novo_ or from the stage at which it is so transferred.” 5. It has been held consistently by the Apex Court and various High Courts that in similar cases for transfers sought under Sec.24 of ::3:: Tr.P(C).No.735 Of 2017 the Code of the Civil Procedure, unanimity of judicial opinion is that the cardinal parameter to be reckoned for finding such transfer pleas is the balance of convenience on such occasions. The question of balance of convenience has to be determined as per the question of fact in each case. The balance of convenience should be convenient to all parties as well as witnesses. In determining balance of convenience, the court has to take into consideration, - (a) the convenience or inconvenience of the plaintiff and the right of the palintiff to choose his own forum; - (b) the convenience or inconvenience of the defendant; - (c) the convenience or inconvenience of the witnesses required for a proper trial of the suit; - (d) the convenience or inconvenience of a particular place of trial having reard to the nature of the evidence on the main points involved in the suit and also having regard to the doctrine of “forum conveniens” ; and - (e) the natue of the issues in the suit, etc. The Apex Court held in the judgment in Kulwinder Kaur v. Kandi Friends Education Trust, reported in (2008) 3 SCC 659 = 2008 KHC 4074, that although the discretionary power of transfer of cases cannot be imprisoned within a strait jacket of any cast iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection and a reading Secs.24 and 25 of the Code of Civil ::4:: Tr.P(C).No.735 Of 2017 Procedure together, and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; 'interest of justice' demanding for transfer of suit, appeal or other proceeding, etc., and that the above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding and that they are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order. It will be profitable to refer to para 14 of the above case decision in Kulwinder Kaur's case (supra), which reads as follows: (see KHC report). ::5:: Tr.P(C).No.735 Of 2017 “14. Although the discretionary power of transfer of cases cannot be imprisoned within a strait jacket of any cast iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading S.24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; 'interest of justice' demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order”. 6. In the instant case it is clear from Anx.A-1 claim that the accident in question was occurred on on 5.10.2014 at bout 6:00 p.m., while she was walking through the extreme side of Mathapuzha Road, which is within the limits of Thenhippalam Police Station, Malappuram District. The 1st respondent is also a resident of Thenhippalam. The petitioner is also residing at Thenhippalam. The 2nd respondent is based at Manjeri. So, from the admitted pleadings, most of the witnesses are from Thenhippalam and for them the Tribunal at Kozhikode is more convenient. It appears that both the petitioner, 1st respondent and many ::6:: Tr.P(C).No.735 Of 2017 of the witnesses are based at Thenhippalam. As Thenhippalam is in Malappuram Revenue District, the Tribunal having territorial jurisdiction is M.A.C.T., Manjeri, which is also in Malappuram district. But it is seen that Thenhippalam is more proximate to Kozhikode Town than to Manjeri. So, it appears that the Tribunal at Kozhikode may be more convenient forum for most of the parties and witnesses, etc. The main plea made by the petitioner that she is having difficulty to travel and that the Tribunal at Kozhikode is more proximate to her residence, etc. The said difficulties expressed on behalf of the petitioner is quite understandable. Accordingly, this Court is inclined to grant the plea for transfer as sought for in the petition. 7. Accordingly, it is ordered that O.P(MV).No.596/2015 pending on the file of the Motor Accidents Claims Tribunal, Manjeri, will stand transferred to the file of the Motor Accidents Claims Tribunal, Kozhikode. The petitioner will produce a certified copy of this order before the Motor Accidents Claims Tribunal, Manjeri, without any further delay. Upon receipt of the copy of the order, the Motor Accidents Claims Tribunal, Manjeri, will take steps to ensure that the case papers and case records in relation to O.P(MV).No.596/2015 pending on the file of that court are transmitted to the Motor Accidents Claims Tribunal, Kozhikode. ::7:: Tr.P(C).No.735 Of 2017 After receiving the case papers and case records in relation to O.P(MV).No.596/2015, the Motor Accidents Claims Tribunal, Kozhikode, will issue notice to both parties and proceed further with the matter, in accordance with law. With these observations and directions, the above Transfer Petition (Civil) will stand allowed. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.