OP (MAC) NO. 44 OF 2022

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 ``` ``` OP (MAC) NO. 44 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT EP 240/2004 OF SPECIAL COURT FOR EC ACT CASES ``` ``` & MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR ``` ## **`PETITIONERS/PETITIONERS 1 & 2:`** ``` 1PREMA AGED 67 YEARS W/O LATE RAMACHANDRAN, VIRUTHIPARAMBIL HOUSE, KODALI, MATTATHOOR, THRISSUR DISTRICT, PIN – 680684 2SILIN AGED 47 YEARS S/O LATE RAMACHANDRAN, VIRUTHIPARAMBIL HOUSE, KODALI, MATTATHOOR, THRISSUR DISTRICT, PIN – 680684 ``` ``` BY ADVS. A.R.NIMOD M.A.AUGUSTINE ``` ## **`RESPONDENTS/RESPONDENTS & PETITIONERS 3 & 4:`** ``` 1K.K. THAVU ** S/O KAPPU, KANJIRATHINGAL HOUSE, KANIYAMBAN, KUNNAMKULAM, THRISSUR DISTRICT, PIN – 680503 ** (DIED), 2SASIKUMAR PARTNER, BALAKRISHNA TRANSPORTS, GURUVAYUR, THRISSUR -, PIN – 680101 ``` ``` 3SASIKUMAR PARTNER, BALAKRISHNA TRANSPORTS, GURUVAYUR, THRISSUR -680101 ``` ``` THE NAME OF THE 3RD RESPONDENT IS CORRECTED AND SUBSTITUTED AS 'NANDAKUMAR ' AS PER ORDER DATED 06/06/2022 IN I.A.NO. 2/2022 IN OP(MAC)44/2022, ``` ``` 4RUGMINI W/O BALAKRISHNAN NAIR, PARTNER, BALAKRISHNA TRANSPORTS, ``` ``` 2 ``` ## **`OP (MAC) NO. 44 OF 2022`** ``` GURUVAYUR, THRISSUR, PIN – 680101 ``` ``` 5VALSARAJ S/O BALAKRISHNAN NAIR, PARTNER, BALAKRISHNA TRANSPORTS, GURUVAYUR, THRISSUR, PIN – 680101 6B. JAYASREE D/O BALAKRISHNAN NAIR, PARTNER, BALAKRISHNA TRANSPORTS, GURUVAYUR, THRISSUR, PIN – 680101 7NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE,ORISON COMPLEX, SH50 , KUNNAMKULAM, THRISSUR, REPRESENTED BY BRANCH MANAGER, PIN – 680503 8LAKSHMI D/O LATE RAMACHANDRAN, VIRUTHIPARAMBIL HOUSE, KODALI, MATTATHOOR, THRISSUR DISTRICT, PIN – 680684 9KALLYANI ** W/O VIRUTHIPARAMBIL KOCHAKKAN, KODALI DESOM, MATTATHOOR PANCHAYATH, P.O KODALI, MUKUNDAPURAM TALUK, THRISSUR DISTRICT **(DIED) IT IS RECORDED THAT R1 AND R9 ARE DIED AND PETITIONERS AND R8 ARE THE LEGAL REPRESENTATIVES OF THE DESEASED R9 AND THEIR IS NO LEGAL HEIR FOR R1, VIDE ORDER DATED 22.09.2022 IN MEMO DATED 20.09.2022., PIN – 680684 ``` ``` BY ADVS. K.P.SURESH KUMAR ANZIL SALIM SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD.() SURESH SUKUMAR(K/634/1997) ``` ``` THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 07.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (MAC) NO. 44 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** Impugned order Ext.P6 dated 19.03.2022 in E.A. 16/2022 and E.A.17/2022 in E.P.No.240/2004 in O.P.(MV)No.953/1985 rejecting the application of the claimants to implead the legal representatives of deceased managing partner, Balakrishna Nair, the judgment debtor, has been assailed in the original petition. 2. Petitioners and 8[th] and 9[th] respondents are wife, son, daughter and mother of one Ramachandran, who unfortunately died in a road accident occurred on 23.04.1983. The vehicle involved in the accident was insured by the New India Insurance Company. Balakrishnan Nair was arrayed as respondent No.1 being the Managing Director of Balakrishna Transport whereas respondent Nos.2 and 3 are the other partners of Balakrishna Transport. Respondent Nos.4 to 6 are the legal heirs of Balakrishnan Nair. A claim petition under Section 110A of the erstwhile Motor Vehicles Act, 1939 was preferred. Learned MACT vide award dated 26.07.1986 Ext.P1 assessed the compensation to the tune of Rs.1,45,000/- with interest at the rate of 12%. ``` OP (MAC) NO. 44 OF 2022 ``` ``` 4 ``` Insurance Company was directed to comply with the liability and satisfy the award. The aforementioned award was challenged in this Court by the Insurance Company on the ground of limited liability of Rs.50,000/-. This Court vide judgment in MFA No.803/1988 dated 21.03.1997 accepted the contention of the Insurance Company and fixed the liability to the extent of Rs.50,000/- and the remaining liability was fastened upon the owner and driver. 3. Accordingly, an Execution Petition bearing No.240/2004 was filed before the Tribunal against the owner and driver of the offending vehicle. The said execution application was taken to its conclusion and order issuing revenue recovery certificate was issued on 21.08.2006. 4. The judgment debtors ie., respondent Nos.2 and 3 herein filed Writ Petition bearing No.5682/2008 on the ground that Balakrishnan Nair, the Managing Partner of the Transports was no more and order of the execution was a nullity. This Court without going to the merits of the case, allowed the earlier applications of the judgment debtors, 2[nd] and 3[rd] respondent herein, with a ``` OP (MAC) NO. 44 OF 2022 ``` ``` 5 ``` direction to the execution court to hear their contentions and decide the claim in the pending E.P., vide judgment dated 30.07.2021 Ex.P3. 5. Learned counsel appearing on behalf of the petitioner submitted that the Execution Petition was reopened. Petitioner submitted applications for bringing on record the legal heirs of Balakrishnan Nair, managing partner and amendment of the petition vide Exts.P4 and P5 but the same have been dismissed by the Tribunal on the ground that the Execution Petition was barred by limitation being beyond 12 years. It is further contended that the cause of action accrued to the petitioner only after the order of the High Court dated 30.07.2021 Ext.P3 ,therefore, the order of the Tribunal is not sustainable in the eyes of law. 6. Learned counsel for the Insurance Company opposed the aforementioned prayer and supported the order. 7. I have heard the learned counsel for the parties and appraised the paper book. 8. Before adverting to the contentions, it would be axiomatic to extract relevant portion of order of this Court in W.P. ``` OP (MAC) NO. 44 OF 2022 ``` ``` 6 ``` ## (C).No.5682/2008 decided on 30.07.2021. The same reads thus: “4. Heard the counsel for the petitioners and the counsel for the respondents. The counsel for the petitioners raised the same contentions in Ext.P6 application. The counsel submitted that if an opportunity is given to the petitioners, they will be able to convince the execution court that they are not liable to pay the amount. Several contentions are raised by the petitioners. I don't want to make any observation about the same. 5. As I said earlier, it is an award passed in a claim petition filed in 1985. The amount due from the judgment debtors as on that date itself was a huge amount. Ext.P4 is the execution petition. Admittedly the further proceedings after Exts.P5 and P7 are stayed by this Court in this writ petition. According to me, to show the bonafides by the petitioners, they should deposit an amount of Rs.2 lakhs before the Tribunal. On such condition, Exts.P5 and P7 can be quashed. I make it clear that the deposit of the amount will be subject to the decision of the claim of the petitioners in the execution court. I set aside Exts.P5 and P7 on condition of the deposit of Rs.2 lakhs. Moreover, in the light of the Apex Court judgment in Rahul S. Shah v. Jinendra Kumar Gandhi & Others [2021 (4) KHC 148 (SC)], the execution court is bound to dispose the Execution Proceedings itself immediately. Therefore, this writ petition is disposed in the following manner: 1. Exts.P5 and P7 are set aside on condition that the petitioners will deposit an amount of Rs.2 lakhs before the Motor Accidents Claims Tribunal, Thrissur, within four weeks from today. ``` OP (MAC) NO. 44 OF 2022 ``` ``` 7 ``` 2. If the petitioners deposit the amount as directed above, the execution court will consider the case of the petitioners afresh and give them an opportunity to adduce evidence. 3. After giving an opportunity of hearing and allowing the petitioners to adduce evidence, the execution court will decide the claim of the petitioners, as expeditiously as possible, at any rate, within six weeks from the date on which the amount is deposited as directed in clause (1). 4. If the amount is not deposited as directed in clause (1) above, the execution court will proceed from the stage of Exts.P5 and P7. 5. The execution court will dispose the execution proceedings within four months from the date of receipt of a copy of this judgment. 6. The registry will forward a copy of this judgment to the execution court forthwith.” 9. Petitioners as an abundant caution submitted application for bringing on the legal heirs and amendment the execution petition to avoid any objections. Cause of action thus accrued only thereafter to seek the impleadment of legal heirs, that cannot be said to be barred by law of limitation as observed by the MACT. The observation of the Trial Court in taking the last date of the decree as order of the High Court in MFA on ``` OP (MAC) NO. 44 OF 2022 ``` ``` 8 ``` 21.03.1997 is wholly preposterous and erroneous. The factum that the petitioners were aware of the death of the respondent has not been discussed. It is always the duty of the person representing the partnership firm to inform regarding the demise of one of the parties as the liability of the partners would be joint and several. For the reason aforementioned, the order is set aside. Application for impleadment of legal heirs and amendment of Execution Petition is allowed. MACT is directed to proceed with the Execution Petition in terms of the directions contained in the order dated 30.07.2021 in W.P.(C).No.5682/2008 in accordance with law as expeditiously as possible. Original petition is allowed. **Sd/-** **AMIT RAWAL JUDGE** nak ``` 9 ``` ## **`OP (MAC) NO. 44 OF 2022`** ## **`APPENDIX OF OP (MAC) 44/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` A TRUE COPY OF THE AWARD OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR IN O.P.(M.V) 953/1985 DATED 26.07.1986 ``` ``` Exhibit P2TRUE COPY OF THE JUDGMENT IN MFA 803/1988 DATED 21.03.1997 ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) 5682/2008 DATED 30.07.2021 ``` ``` Exhibit P4TRUE COPY OF THE APPLICATION ALONG WITH AFFIDAVIT NUMBERED E.A 16/2022 DATED 15.01.2022 ``` ``` Exhibit P5TRUE COPY OF THE APPLICATION ALONG WITH AFFIDAVIT NUMBERED E.A 17/2022 DATED 15.01.2022 ``` ``` Exhibit P6CERTIFIED COPY OF THE COMMON ORDER DATED 19.03.2022 IN E.A.16/2022 & E.A.17/2022 IN E.P 240/2004 IN O.P. (MV) NO.953/1985 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ```