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High Court of KeralaSingle JudgeThe original petitions are disposed of.

Sirajudeen v. Maniyamma and others; Ramesh Subrahmanian v. Divisional Manager, New India Assurance Co., Kollam and others

Case / Petition Number:OP (MAC) No. 92 of 2021 and OP (MAC) No. 93 of 2019 (consolidated)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Amit Rawal
Judgment Date
2023-01-20
Court Decision / Holding
The impugned order allowing the MACT review is set aside. The petition is to be treated as an application under Order 9 Rule XIII, and the matter is remitted to MACT to decide IA Nos.2514/2018 and 2515/2018 in OP(MV) 427/2012 as an Order 9 Rule XIII application. The parties are to appear before the MACT on 07-02-2023, with 2-2 effective opportunities for the lis to be heard and decided, after appropriate replies/objections. The original petitions are disposed of.
Final Disposition
The original petitions are disposed of.

Parties to the Case

Appellants / Petitioners

  • Sirajudeen
  • Ramesh Subrahmanian

Respondents

  • Maniyamma W/o Late Vijayan
  • Shinu P. V.
  • Aswathy P. V.
  • Karthyayani M/o Late Vijayan
  • RAMESH SUBRAHMANIAN S/O SUBRAHMANIAN
  • The Divisional Manager, New India Assurance Company, Kollam
  • Sirajudeen S/o Haneefa

Legal Representation & Advocates

Counsels for Petitioners

  • • Manu Ramachandran
  • • M. Kiranlal
  • • R. Rajesh (Varkala)
  • • T. S. Sarath
  • • Sameer M Nair
  • • Sabikh Mohammed V.S
  • • Geethu Krishnan
  • • Harsha Susan Sam
  • • Arun B Varghese
  • • Sri G. M. Idiculay

Counsels for Respondents

  • • Arun B Varghese
  • • Lal K. Jose
  • • Aiswarya V.S.
  • • Varna Manoj
  • • Suresh Sukumar
  • • Shiju Varghese
  • • Manu Ramachandran
  • • M. Kiranlal
  • • T. S. Sarath
  • • R. Rajesh (Varkala)
  • • Ajay Jayachandran
  • • V.S. Shiraz Bava

Case Synopsis & Summary

This judgment disposes of two Original Petitions (OP(MAC) Nos. 92 of 2021 and 93 of 2019) filed in the Kerala High Court at Ernakulam. The background arises from a motor-vehicle accident on 6 November 2011 in which Vijayan died. A claim petition (OP(MV) 427/2012) before the Motor Accidents Claims Tribunal at Pathanamthitta proceeded ex parte against the vehicle owner and driver; the final report (Ext. A6) noted the driver had no valid licence, and the Tribunal awarded compensation against the owner and driver. Instead of seeking setting aside or appeal, the insurer filed a review petition challenging the MACT’s recall/setting aside of the ex parte order, arguing that there is no statutory provision for MACT review under the Motor Vehicles Act and that the burden to prove a driving licence under Section 101 of the Indian Evidence Act had not been discharged, with no opportunity to cross-examine. The insurer’s challenge prompted the High Court to assess the MACT’s powers. The Court held there is no statutory basis for reviewing MACT orders under the MV Act; at most, MACT may recall evidence under Rule 395 of the Kerala Motor Vehicles Rules, 1989. The Court ruled the review petition unsustainable and directed that it be treated as an application under Order 9 Rule XIII CPC, setting aside the impugned order and remitting IA Nos.2514/2018 and 2515/2018 in OP(MV) 427/2012 to the MACT for fresh consideration, with notices and hearings fixed for 07-02-2023. The original petitions are disposed of.

Provisions of Law Cited

Order 9 Rule XIII, CPCSection 173, Motor Vehicles ActRule 395, Kerala Motor Vehicles Rules, 1989Section 101, Indian Evidence Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants submit that MACT had no power to review its order in the MV Act regime; a review is not provided and the remedy lies either in an Order 9 Rule XIII CPC application or in filing an appeal under Section 173 MV Act. They contend the burden to prove that the driver held a valid licence has not been discharged under Section 101 of the Indian Evidence Act, and there was no opportunity for cross-examination. The review petition, therefore, is not sustainable, and ex parte relief cannot be revived without proper process.

Contentions of Respondents

The respondents concede that no application under Order 9 Rule XIII or appeal was filed, but argue the review petition was pursued as a permissible remedy in the facts of the case and that the MACT’s findings on recall/set-aside of the ex parte order were justified. They rely on the broad notion of maintaining remedies available under motor vehicle litigation and argue for keeping the record open for fresh consideration within the statutory framework.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944** **OP (MAC) NO. 92 OF 2021 AGAINST THE ORDER/JUDGMENT IA 2515/2018 IN OPMV 427/2012 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA** ## **PETITIONER/S:** SIRAJUDEEN AGED 24 YEARS S/O. HANEEFA, MANNICHERYIL HOUSE, ATTAKKANAM KARA, PUSHPAKKANDOM, PARATHODU VILLAGE, IDUKKI DISTRICT - 685 552. BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR SABIKH MOHAMMED V.S GEETHU KRISHNAN HARSHA SUSAN SAM ## **RESPONDENT/S:** 1 MANIYAMMA W/O. LATE VIJAYAN, PUTHENPURAYIL, VALIYAKULAM, CHERUKULANJI P. O., RANNI, PATHANAMTHITTA DISTRICT - 689 673. 2 SHINU P. V. W/O. LATE VIJAYAN, PUTHENPURAYIL, VALIYAKULAM, CHERUKULANJI P. O., RANNI, PATHANAMTHITTA DISTRICT - 689 673. 3 ASWATHY P. V. D/O. LATE VIJAYAN, PUTHENPURAYIL, VALIYAKULAM, CHERUKULANJI P. O., RANNI, PATHANAMTHITTA DISTRICT - 689 673. **OP (MAC) NO. 92 OF 2021 and conctd. Case** **2** 4 KARTHYAYANI M/O. LATE VIJAYAN, PUTHENPURAYIL, VALIYAKULAM, CHERUKULANJI P. O., RANNI, PATHANAMTHITTA DISTRICT - 689 673. 5 RAMESH SUBRAHMANIAN S/O. SUBRAHMANIAN, HOUSE NO.17, PAMAPADUMPARA ESTATE, PAMAPDUMPARA P. O., IDUKKI DISTRICT - 684 514. 6 THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE COMPANY, KOLLAM - 691001. BY ADVS. ARUN.B.VARGHESE LAL K.JOSEPH AISWARYA V.S. VARNA MANOJ SURESH SUKUMAR THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 20.01.2023, ALONG WITH OP (MAC).93/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **3** **OP (MAC) NO. 92 OF 2021 and conctd. Case** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944** **OP (MAC) NO. 93 OF 2019** **AGAINST THE ORDER/JUDGMENTOPMV 427/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, PATHANAMTHITTA / III ADDITIONAL** **MACT** ## **PETITIONER/S:** RAMESH SUBRAHMANIAN, AGED 38 YEARS S/O SUBRAHMANIAN, HOUSE NO.17, PAMAPADUMPARA ESTATE, PAMAPADUMPARA P.O.UDUMPUMCHOLA TALUK 686 514. BY ADVS. ARUN.B.VARGHESE SRI.G.M.IDICULAY ## **RESPONDENT/S:** 1 THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO, KOLLAM (REVIEW PETITIONER/3RD RESPONDENT IN OP). 2 MANIYAMMA, W/O LATE VIJAYAN, PUTHENPURAYIL VALIYAKULAM, CHERUKULANJI P.O.RANNI, (PETITIONER IN OP). 3 SHINU P.V, S/O LATE VIJAYAN, PUTHENPURAYIL VALIYAKULAM, CHERUKULANJI P.O.RANNI, (PETITIONER IN OP). 4 ASWATHI P.V, D/O LATE VIJAYAN, PUTHENPURAYIL VALIYAKULAM, CHERUKULANJI P.O.RANNI, (PETITIONER IN OP). 5 KARTHYAYANI, M/O LATE VIJAYAN, PUTHENPURAYIL VALIYAKULAM, **OP (MAC) NO. 92 OF 2021 and conctd. Case** **4** CHERUKULANJI P.O.RANNI, (PETITIONER IN OP). 6 SIRAJUDEEN, S/O HANEEFA, MANNINCHERIL VEEDU, ATTEKANAM BHAGOM, PUSHPAKANDAMATHARAYIL, PARATHODU P.O. (RESOPONDENT-1 IN OP) BY ADVS. SRI.LAL.K.JOSE SRI.SHIJU VARGHESE SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.T.S.SARATH SRI.R.RAJESH (VARKALA) SHRI.AJAY JAYACHANDRAN V.S.SHIRAZ BAVA THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 20.01.2023, ALONG WITH OP (MAC).92/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP (MAC) NO. 92 OF 2021 and conctd. Case** **5** ## **JUDGMENT** This order of mine shall dispose of two (2) original petitions; O.P(MAC) No.92 of 2021 (Sirajudeen v. Maniyamma and others) and 93 of 2019 (Ramesh Subramanian v. Divisional Manager and others). 2. On 6.11.2011, Sri. Vijayan, unfortunately died in a motor vehicle accident. A claim petition was filed by wife, children and mother. In the aforementioned proceedings, the insurance company of the vehicle belonging to 3[rd] party as well as the owner and the driver were proceeded as ex-parte. On account of the aforementioned accident, FIR bearing No.706 of 2011 was registered with police station Nedumkandam and Ext.A6 final report was brought on record. On issue No.3, noticing the fact that the vehicle was covered by an insurance policy, the owner and the driver of the vehicle was indemnified, resulting into an award dated 31.12.2016 allowing compensation. 3. Instead of moving an application for setting aside or preferring an appeal, insurance company preferred a review petition on the ground that the report Ext.A6 comprehensively dealt with all the factors and it had come on record that the driver of the offending vehicle did not have a valid and effective licence. **OP (MAC) NO. 92 OF 2021 and conctd. Case** **6** Learned MACT on the basis of the aforementioned report, recalled the order by fastening the liability on the owner and driver of the offending vehicle. 4. Learned counsel representing the petitioner in O.P (MAC) No.93 of 2019 and 92 of 2021 that the learned MACT does not have any power to review the order as the remedy was either to move an application under Order 9 Rule XIII of the Code of Civil Procedure or to prefer an appeal under Section 173 of the Motor Vehicles Act. Learned MACT failed to notice that the burden to prove whether the driver had the driving licence has not been discharged as per the provisions of Section 101 of the Indian Evidence Act without giving any opportunity to cross examine and disproved the same. 5. On the other hand, learned counsel appearing on behalf of the insurance company do not deny the fact that no application under Order 9 Rule XIII or appeal was preferred but the review. 6. I have heard the learned counsel for the parties and appraised the paperbook and of the view that the award of the learned MACT in accepting the review petition is not sustainable in the eyes of law as there is no provision in the Act for review of the order except that the MACT would have a trapping of the civil court in respect of recording and summoning of the witnesses and not beyond that as per the provisions of Rule 395 of the Kerala Motor **OP (MAC) NO. 92 OF 2021 and conctd. Case** **7** Vehicle Rules, 1989. At the best, MACT ought to have called upon the Insurance company to either prefer an appeal or to move an application under Order 9 Rule XIII. Since much time has already lapsed, I am of the view that the review petition preferred on behalf of the Insurance Company can be treated as an application for setting aside the ex-parte order in terms of the provisions of Order 9 Rule XIII which is applicable as per the Rule referred above. Accordingly, the impugned order is set aside. Matter is relegated to the MACT to decide I.A Nos.2514 of 2018 and 2515 of 2018 in OP (MV) No.427 of 2012 as an application under Order 9 Rule XIII. Since the parties have already put in appearance before this Court, they would have a notice of the said application. The parties through their counsels are directed to appear before the learned MACT, on 7.2.2023. The petitioners herein ie., the owner and driver would file a reply to the application for setting aside the ex-parte decree and thereafter the learned MACT would give 2-2 effective opportunities to the parties to the lis to treat the case, in accordance with law. The original petitions are disposed of. **Sd/-** sab **AMIT RAWAL** **JUDGE** ## **OP (MAC) NO. 92 OF 2021 and conctd. Case** ## **8** ## **APPENDIX OF OP (MAC) 93/2019** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE IA NO 2514/2018 IN OP(MV)| ||NO 427/2012 ON THE FILES OF ADDITIONAL| ||DISTRICT JUDGE AND MOTOR ACCIDENT CLAIM| ||TRIBUNAL 111, PATHANAMTHITTA| |EXHIBIT P2|TRUE COPY OF THE IA NO 2515/2018 IN OP(MV)| ||NO 427/2012 ON THE FILES OF ADDITIONAL| ||DISTRICT JUDGE AND MOTOR ACCIDENTS CLAIMS| ||TRIBUNAL 111, PATHANAMTHITTA| |EXHIBIT P3|TRUE COPY OF THE CLAIM PETITION FILED BY| ||THE RESPONDENT 2 TO 5 HEREIN IN OP(MVz) NO| ||427/2012 ON THE FILES OF MOTOR ACCIDENTS| ||CLAIMS TRIBUNAL, PATHANAMTHITTA| |EXHIBIT P4|TRUE COPY OF THE AWARD DATED 31.12.2016 IN| ||OP(MV) NO 427/2012 ON THE FILES OF| ||ADDITIONAL DISTRICT JUDGE AND MOTOR| ||ACCIDENTS CLAIMS TRIBUNAL 111,| ||PATHANAMTHITTA| |EXHIBIT P5|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONER IN IA NO 2514/2018 ON THE FILES| ||OF ADDITIONAL MOTOR ACCIDENTS CLAIMS| ||TRIBUNAL 111, PATHANAMTHITTA| |EXHIBIT P6|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONER IN IA NO 2515/2018 ON THE FILES| ||OF ADDITIONAL MOTOR ACCIDENTS CLAIMS| ||TRIBUNAL 111, P[ATHANAMTHITTA| |EXHIBIT P7|CERTIFIED COPY OF COMMON ORDER DATED| ||27.4.2019 IN IA NO 2514/2018 AND I A NO| ||2515/2018 IN OP(MV) NO 427/2012 ON THE| ||FILES OF ADDITIONAL DISTRICT JUDGE AND| ||MOTOR ACCIDENTS CLAIMS TRIBUNAL 111,| ||PATHANAMTHITTA.| ## **OP (MAC) NO. 92 OF 2021 and conctd. Case** ## **9** ## **APPENDIX OF OP (MAC) 92/2021** PETITIONER EXHIBITS Exhibit P1 - THE TRUE COPY OF THE REVIEW PETITION FILED AS I.A.NO.2514/2018 IN OP(MV) NO.427/2012 ON THE FILES OF ADDL. MACT-III, PATHANAMTHITTA. - Exhibit P2 THE TRUE COPY OF THE DELAY PETITION FILED AS I.A.NO.2515/2018 IN OP(MV) NO.427/2012 ON THE FILES OF ADDL. MACT-III, PATHANAMTHITTA. - Exhibit P3 THE TRUE COPY OF THE AWARD DATED 31.12.2016 IN OP(MV) NO.427/2012 ON THE FILES OF ADDL. MACT-III, PATHANAMTHITTA. - Exhibit P4 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER / 5TH RESPONDENT IN EXT.P1 REVIEW PETITION. - Exhibit P5 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER / 5TH RESPONDENT IN EXT.P2 DELAY PETITION. - Exhibit P6 THE TRUE COPY OF THE JUDGMENT DATED 09.02.2017 IN CRIMINAL APPEAL NO.73/2016 OF ADDL. SESSIONS COURT-IV, THODUPUZHA. Exhibit P7 THE TRUE COPY OF THE COMMON ORDER DATED 30.04.2019 IN I.A.NO.2514/2018 AND I.A.NO.2515/2018 OF ADDL. MACT - III, PATHANAMTHITTA.