M P George v. Kunjumundan and Others (OP (MAC) No. 28 of 2014)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** **OP (MAC).No. 28 of 2014** **AGAINST THE ORDER N OPMV 1198/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD DATED 24-06-2013** ## **PETITIONER/1ST RESPONDENT:** **M P GEORGE AGED 54 YEARS S/O. PAILY, MULLANKUZHIYIL HOUSE, KOOTTALA, PATTIKKAD, THRISSUR DISTRICT.** **BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SRI.K.D.SREEVISAKH** ## **RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3:** **1 KUNJUMUNDAN S/O. CHAMI, VALIYAPARAMBIL, PERINGOTTUKURUSSI, PALAKKAD-678 574.(IT IS RECORDED THAT R1 IS NO MORE AND THAT HIS LEGAL HEIRS ARE R2 TO R5 WHO ARE ALREADY IN THE PARTY ARRAY A PER ORDER DATED 5/8/2014 IN MEMO DATED 30/07/2014 IN OP(MAC) BEARING CF.NO.1952/2014.** **2 THANKA W/O. KUNJUMUNDAN, VALIYAPARAMBIL, PERINGOTTUKURUSSI, PALAKKAD-678 574.** ## **3 KAMALAKSHI** **D/O. KUNJUMUNDAN, VALIYAPARAMBIL, PERINGOTTUKURUSSI, PALAKKAD-678 574.** ## **4 KRISHNAN** **S/O. KUNJUMUNDAN, VALIYAPARAMBIL, PERINGOTTUKURUSSI, PALAKKAD-678 574.** - **5 NARAYANAN KUTTY** **S/O. KUNJUMUNDAN, VALIYAPARAMBIL, PERINGOTTUKURUSSI, PALAKKAD-678 574.** **6 THE ORIENTAL INSURANCE COMPANY P.B.NO.49,PATTAMANA BUILDING,ALUVA IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED 11/03/2014 IN IA.NO.3358/2014.** **OP (MAC).No. 28 of 2014** **2** - **7 REMANAN 5/112,CHIRANGAL HOUSE,PERINGOTTUKURISSI,PALAKKAD DISTRICT IS IMPLEADED AS ADDL.R7 AS PER ORDER DATED 12/06/2014 IN IA.NO.6752/2014** - **8 THE REGIONAL TRANSPORT OFFICER,PALAKKAD IS IMPLEADED AS ADDL R8 AS PER ORDER DATED 12/06/2014 IN IA.NO.7474/2014.** **BY ADVS. SRI.VPK.PANICKER- ADDL R6 SRI.T.J.LAKSHMANAN IYER – ADDL R7 SMT MABLE C.KURIEN- GOVERNMENT PLEADER** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (MAC).No. 28 of 2014** **3** ## **JUDGMENT** The petitioner was arrayed as the 1[st] respondent in O.P.(MV) No.1198/02 on the file of Motor Accident Claims Tribunal, Palakkad, which is a claim petition filed by respondents 1 to 5 herein, being the legal representatives of one Karthyayani, who died in a motor accident, which occurred on 18.05.2002, involving a Tempo Trax bearing Reg.No.KL-7/S-2161, owned by the petitioner. The Tribunal passed Ext.P2 ex-parte award dated 05.09.2007, awarding a total compensation of Rs.2,24,100/together with interest at the rate of 7.5% per annum from the date of petition, i.e., from 19.11.2002 till realisation. Since there is violation of the policy conditions, the additional 6[th] respondent herein, who is the insurer of the vehicle was granted recovery right. After payment of compensation to the claimant, the insurer obtained orders from the Tribunal under Section 174 of the Motor Vehicles Act, 1988 to initiate recovery proceedings against the petitioner. At that point of time, the petitioner filed I.A.Nos.4298/2009 and 4299/2009 in O.P.(MV) No.1198/2002, which are applications filed under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside Ext.P2 ex-parte award in **OP (MAC).No. 28 of 2014** **4** O.P.(MV) No.1198/2002 and to condone the delay of 676 days in filing the former application. The above said applications now stand dismissed by Ext.P5 order dated 24.06.2013 of the Tribunal. Paragraph 3 of the said order reads thus: _“3. It is not actually true to say that petitioner did not receive the notice of Original Petition. There is his signed acknowledgement dated 28.11.2002 of having received notice. He had been given an opportunity to contest the claim. It is also not true to say that he had no knowledge of the claim or award till he received notice on I.A.1268/2009 on 18.06.2009. The delay is therefore not condonable nor are their sufficient reasons to get set aside the award and afford the petitioner another opportunity to contest the claim._ _I.A.No.4298/2009 is dismissed._ _Consequently and for reasons stated above, I.A.No.4299/2009 is dismissed.”_ 2. On 12.06.2014, when this original petition came up for admission, this Court issued urgent notice by speed post to additional respondents 6, 7 and 8, returnable within two weeks. On 11.04.2019, this Court has granted an interim stay of recovery proceedings against the petitioner for a period of two months. Pursuant to the order of this Court dated 26.02.2014, a report dated 13.03.2014 is received from the Tribunal. 3. Heard the learned counsel for the petitioner, the **OP (MAC).No. 28 of 2014** **5** learned Standing Counsel for the additional 6[th] respondent Insurance Company, the learned counsel for the additional 7[th] respondent, and also the learned Government Pleader for the additional 8[th] respondent. 4. The sole issue arises for consideration in this Original Petition is as to whether any interference is warranted on Ext.P5 common order dated 24.06.2013 in I.A.Nos.4298/2009 and 4299/2009, whereby the above said interlocutory applications stand dismissed. 5. A reading of Ext.P5 order in I.A.No.4298/2009 filed by the petitioner seeking an order to condone the delay of 676 days in filing I.A.No.4299/2009 would show that, the said I.A. was rejected on the ground that the petitioner has received notice and as such it cannot be said that he had no knowledge of the claim till he received notice in I.A.No.1268 of 2009 dated 18.06.2019. 6. Having considered the submission made by the learned counsel on both sides and perusing the affidavit accompanying to I.A.No.4298 of 2009, this Court finds that the petitioner has not chosen to file a proper affidavit offering satisfactory explanation for condonation of the delay of 676 days in filing I.A.No.4299 of **OP (MAC).No. 28 of 2014** **6** 2009 to set aside Ext.P2 ex-parte award. 7. The learned counsel for the petitioner would submit that, since the petitioner has a case that, he was not the registered owner of the offending vehicle as on the date of accident, he may be granted an opportunity to substantiate the said fact before the Tribunal. In such circumstances, this Court finds that the delay of 676 days in filing the application to set aside Ext.P2 ex-parte award can be condoned on payment of cost to the additional 6[th] respondent insurer. 8. In such circumstances, Ext.P5 order dated 24.06.2013 of the Tribunal in I.A.Nos.4298 of 2009 & 4299 of 2009, is set aside on payment of a cost of Rs.7,500/- (Rupees seven thousand five hundred only) payable to the additional 6[th] respondent insurer, within a period of three weeks from the date of receipt of a certified copy of this judgment, by depositing the same before the Tribunal. On such deposit being filed, the Tribunal shall allow I.A.No.4298 of 2009, thereby condoning the delay of 676 days in filing I.A.No. 4299 of 2009. Thereafter, the Tribunal shall reconsider I.A.No. 4299 of 2009 with notice to both sides and pass fresh orders, as expeditiously as possible, any any rate, within a **OP (MAC).No. 28 of 2014** **7** period of three months from the date of receipt of a certified copy of this judgment. 9. In _**Naveen Kumar v. Vijaykumar**_ [(2018) 3 SCC 1] the Apex Court held that in view of the definition of the expression 'owner' in clause (30) of Section 2 of the Motor Vehicles Act, 1988, it is the person in whose name the motor vehicle stands registered, who, for the purpose of the said Act would be treated as the owner. 10. It is for the petitioner to produce necessary materials to substantiate the contention that he was not the registered owner of the offending vehicle as on the date of accident, within three weeks from the date of receipt of a certified copy of this judgment. Till such orders are passed, the interim order passed by this Court on 11.04.2019 shall continue, if the petitioner has complied with the condition stipulated as above, by remitting Rs.7,500/(Rupees seven thousand five hundred only). ## **Sd/-** ## **ANIL K.NARENDRAN** ## **JUDGE** mpm **OP (MAC).No. 28 of 2014** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN OP.(MV)No.1198/02 DTD.30.10.2002.** **EXHIBIT P2 TRUE COPY OF THE COMMON AWARD DTD.05.09.2007 IN OP.(MV) No.1198/02 PASSED BY MACT, PALAKKAD.** **EXHIBIT P3 TRUE COPY OF THE IA 4299/09 DTD.15.7.2009 FOR SETTING ASIDE THE EX-PARTE AWARD.** **EXHIBIT P4 TRUE COPY OF THE IA 4298/09 WAS FILED FOR CONDONATION OF DELAY DTD.15.7.2009.** **EXHIBIT P5 TRUE COPY OF COMMON ORDER IN IA 4298/09 & IA 4299/09 IN OP.(MV) No.1198/02 OF THE MACT, PALAKKAD, DTD.24.6.2013.** **EXHIBIT P6 TRUE COPY OF REPLY OF PUBLIC INFORMATION OFFICER, RTO, THRISSUR, DTD.20.8.2009.** // TRUE COPY // P.A. TO JUDGE