Santosh K.V v Rafeeque, Abdhul Rasheed P.M., New India Insurance Co. Ltd., National Insurance Co. Ltd., Nikhil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939** **MACA.No. 1588 of 2017 ()** **------------------------AGAINST THE AWARD IN OPMV 913/2006 of MACT, IRINJALAKUDA DATED 31-12-2010** **APPELLANT(S)/1ST RESPONDENT.:** **---------------------------SANTHOSH K.V AGED 44 YEARS, S/O VELABUDHAN, KUNHATHAN HOUSE, THALIKULAM PO, THRISSUR DISTRICT.** **BY ADVS.SRI.RAJIT SRI.C.DHEERAJ RAJAN** **RESPONDENT(S)/PETITIONER AND RESPONDENTS 2 TO 4:** **------------------------------------------------** **1. RAFEEQUE AGED 31 YEARS, S/O AMMUKUNJI, PUTHIYAVEETIL HOUSE, PADIYOOR PO, THRISSUR DISTRICT-678 338.** **2. ABDHUL RASHEED P.M.** - **S/O MUHAMMED, VADANAPPILLY, THRISSUR DISTRICT-678 338.** **3. NEW INDIA INSURANCE CO.LTD, NATTIKA-688 301.** **4. NATIONAL INSURANCE CO.LTD, TRIVANDRUM-69501.** **5. NIKHIL** - **S/OCHANDRANGADAN, KAVALLUR HOUSE, PADIYOOR PO, THRISSUR DISTRICT-678 331.** **R4 BY ADV. SRI.P.JACOB MATHEW R4 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.SAIGI JACOB PALATTY R BY SRI.M.A.GEORGE R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20-06-2017, ALONG WITH MACA. 1589/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.D.RAJAN, J.** ---------------------------------M.A.C.A.Nos.1588 & 1589 of 2017 ---------------------------------Dated this the 20[th] day of June, 2017 ## **JUDGMENT** These appeals are preferred by the 1[st] respondent against the award in O.P.(MV) Nos.912/2006 & 913/2006 of Motor Accidents Claims Tribunal, Irinjalakuda, who is the owner of the vehicle in the above cases. The learned tribunal awarded a sum of ₹37,494/in O.P.(MV)No.912/2006 and sum of ₹32,467/in O.P.(MV)No.913/2006 with 7% interest per annum and proportionate costs and directed the 3[rd] respondent New India Insurance Company to satisfy the award. Subsequently, by order in I.A.No.400/2011 dated 19.2.2011, the Motor Accidents Claims Tribunal directed the 3[rd] respondent New India Insurance Company to recover the amount from the appellant herein. 2. The learned counsel appearing for the appellant submitted that the tribunal cannot amend the judgment by receiving interlocutory applications. Its power to amend is M.A.C.A.No.1588/2017 & 1589/2017 2 only to correct any clerical or arithmetical mistake in the judgments, the decree or orders or errors arising therein from any accidental slip or omission. 3. It is true that after awarding both cases on 25.1.2011, the 3[rd] respondent filed the above interlocutory application in the lower court. In the above case, the Insurance Company took a contention that the driver of the vehicle was not holding valid driving licence and badge to drive the transport vehicle but that was not considered by the tribunal during trial. But subsequent to an interlocutory application, the learned tribunal made alteration in the judgment. It is clear from Ext.B2 that the driver of the vehicle is holding valid driving licence and badge from 2006 to 2009. Rule 395 of the Kerala Motor Vehicles Rules 1989, deals with the application of the provisions of the Code of Civil Procedure to Motor Accidents Claims Tribunal,which reads as follows: “ **395. Code of Civil Procedure to apply in certain cases.** - The provisions of Rules 9 to 13 and 15 to 30 of M.A.C.A.No.1588/2017 & 1589/2017 3 Order V, rules 16 to 18 of Order VI, Order IX, Rules 3 to 10 of Order XIII, Rules 1 to 21 of Order XVI, Rules 1 to 3 of Order XXIII and Order XXVI of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to the proceedings before the Claims Tribunal. U/s.152 of the Code of Civil Procedure (for short 'CPC') a clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from the accidental slip or omission at any time be corrected by the Court either of its on motion or on the application of any of the parties. This correctional jurisdiction conferred u/s.152 CPC is limited and confine only to correction of mistake or omission mentioned in the judgment therein. An arithmetical mistake is a mistake of calculation and a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to careless mistake or omission and intentionally made. The accidental slip or omission is made by the court. In such a situation, such slip or omission alone can be corrected by the Court by invoking S.152 CPC. M.A.C.A.No.1588/2017 & 1589/2017 4 4. In this case, the learned counsel appearing for the Insurance Company filed a petition u/s.151 of the C.P.C and lower Court allowed that interlocutory application and gave additional direction to the Insurance Company to realise the award amount from the owner, since there was violation of policy condition. Section 151 CPC reads as follows: “ **Saving of inherent powers of court.** - Nothing in this cdoe shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” When there is specific remedy available under the Code, it is settled law that the application u/s.151 of the Code is not maintainable. Apex Court in _**Nainsingh**_ v. _**Koonwarjee**_ [1970 (1) SCC 732] held as follows: “Inherent power not to be exercised when specific provision is available: The Court cannot make use of the special provisions of S.151 where a party had his remedy provided else where in the Code and he neglected to vail himself of the same. The power under S.151 cannot be exercised as an appellate power.” When the learned tribunal omitted to give direction to the Insurance Company to realise the amount proper procedure M.A.C.A.No.1588/2017 & 1589/2017 5 is to approach the proper forum for correcting the mistake committed by the tribunal. In the circumstances, the award of the Motor Accidents Claims Tribunal, Irinjalakkuda is set aside and the matter is remitted to the trial Court for fresh consideration as per law. Both parties are directed to appear before the Motor Accidents Claims Tribunal, Irinjalakuda on 24.7.2017. The appeals are disposed of. **P.D.RAJAN, JUDGE.** acd M.A.C.A.No.1588/2017 & 1589/2017 6 ## **P.D.RAJAN, J.** ---------------------------------- M.A.C.A.Nos.1588 & 1589 of 2017 ---------------------------------Dated this the 20[th] day of June, 2017 ## **ORDER** In view of the oral submission made by the learned counsel for the appellant, the appellant is at liberty to withdraw the amount already deposited at the time of filing the appeal. ## **P.D.RAJAN, JUDGE.** acd M.A.C.A.No.1588/2017 & 1589/2017 7