Thomas V. Kuruvilla v. Anila Shaji and others (O.P.(MAC).No.1311 of 2012-C)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 24TH DAY OF JANUARY 2014/4TH MAGHA, 1935 ## **O.P.(MAC).No.1311 of 2012 (O)** --------------------------------------------------- AGAINST THE ORDER IN I.A.NO.5039 OF 2011 IN O.P.(MV) No.1731/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAK, KOTTAYAM, DATED 10.01.2012. ---------------- PETITIONER(S):- ------------------------- THOMAS V. KURUVILLA, AGED 37 YEARS, VELANGATTU, MANGANAM KARA, VIJAYAPURAM VILLAGE, KOTTAYAM. BY ADV. SRI.SURIN GEORGE IPE. RESPONDENT(S):- ---------------------------- ## 1. ANILA SHAJI, VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM - 686 037. ## 2. SURABHI.V.S., VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM (MINOR), RE:- BY HIS MOTHER ANILA SHAJI, VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM - 686 037. ## 3. SUDHEESH.V.S. VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM (MINOR), REP:- BY HIS MOTHER ANILA SHAJI, VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM - 686 037. ## 4. SAJITH.V.S. VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM (MINOR), REP:- BY HIS MOTHER ANILA SHAJI, VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM - 686 037. ## 5. SUJITH.V.S., VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM (MINOR), REP:- BY HIS MOTHER ANILA SHAJI, VELLORVATTOM THIRUVANCHOOR.P.O., KOTTAYAM - 686 037. O.P.(MAC).NO.1311 OF 2012-C - 2 - 6. N.S.JAGATHAMMA W/O.KAILASAN CHETTIAR, VELLORVATTOM, THIRUVANCHOOR.P.O., KOTTAYAM - 686 037. R1 TO R6 BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.I.J.AUGUSTINE SRI.A.S.SABU SRI.PRATHAP PILLAI SRI.SWATHY DAS SRI.RAJAN VELLOTH. THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 24-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- O.P.(M.A.C.).NO.1311 OF 2012-C. ---------------------------------------------- ## **APPENDIX** PETITIONER(S) EXHIBITS:- -------------------------------------- EXT.P1- TRUE COPY OF THE AWARD IN O.P(M.V)1731/2009 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM. - EXT.P2- TRUE COPY OF I.A.5039/2011 IN O.P.(M.V).1731 OF 2009, PETITION FILED UNDER O. 9 R 13 CPC BY THE PETITIONER. - EXT.P3- TRUE COPY OF THE ORDER DATED 10.1.2012 IN I.A.5039/2011 O.P.(M.V).1731 OF 2009 BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM. RESPONDENT(S)' EXHIBITS:- -----------------------------------------NIL. vku/- ( true copy ) ## K. Vinod Chandran, J ----------------------------------- ## O.P.(MAC) No.1311 of 2012-C ----------------------------------Dated this the 24[th] day of January, 2014 ## **JUDGMENT** The petitioner is the owner-driver of a two-wheeler, which met with an accident on 14.06.2008, in which the pillion rider succumbed to injuries. The wife, mother and children of the deceased filed a claim petition before the Motor Accidents Claims Tribunal (for brevity “the Tribunal”), Kottayam. The petitioner herein was impleaded as the owner-driver before the Tribunal. However, the petitioner was declared _ex parte_ and Exhibit P1 award was passed, granting an amount of Rs.5,92,500/- with 7.5% interest from the date of petition. 2. The petitioner, being aggrieved by the _ex parte_ award, filed an application for setting aside the _ex parte_ award under Order IX Rule 13 of the Code of Civil Procedure, which is exhibited as Exhibit P2. However, the Tribunal found that there are no sufficient reasons stated in OP(MAC).No.1311 of 2012-C - 2 - the petition and dismissed the same by Exhibit P3 order, which is assailed in the present Original Petition. 3. The learned counsel for the petitioner submits that the liability has been mulcted on the owner-driver, since the vehicle does not have a valid insurance policy and the petitioner is aggrieved in so far as there was no negligence on his part. The deceased was a pillion rider and, hence, the petitioner would not be liable for the damages caused by the accident. The petitioner contends that he would be able to substantiate his contentions, that, there was no negligence on his part and that he was an employee of the Panchayat, in which the deceased was an elected member. The petitioner also states that he has valid contentions regarding the discrepancies in the Final Information Report of the criminal case, in which the petitioner stands acquitted. 4. However, the learned counsel for the respondents would contend that it would be perfectly proper for the claimants to establish before the Tribunal that the accident was in fact caused due to the negligence of the OP(MAC).No.1311 of 2012-C - 3 - petitioner and in that event, the petitioner would be liable to compensate the injury caused to the claimants by the death of the only bread-winner of the family. The respondents also contend that the Original Petition itself is not maintainable, since there is an alternative efficacious remedy by way of appeal, as provided in the statute. 5. The learned counsel for the respondents relies on two decisions of the Hon'ble Supreme Court, reported in _**Sadhana Lodh v. National Insurance Co. Ltd.**_ **[(2003) 3 SCC 524]** and _**Bijoy Kumar Dugar v. Bidya Dhar Dutta**_ **[(2006) 3 SCC 242]** to advance the contention of maintainability. Both the said decisions considered the scope of an appeal provided to an insurer under Section 173 read with the provisions of sub-section (2) of Section 149. The insurer having been made a party respondent to the proceedings and not having been impleaded under Section 170, could validly oppose the application only on the grounds specifically provided in sub-section (2) of Section 149. The appeal, hence, also would be confined to such OP(MAC).No.1311 of 2012-C - 4 - grounds. The Supreme Court in the said cases were concerned with whether, when the quantum and interest were not grounds on which appeals could be entertained; whether the same could be agitated under Article 226 and 227. The Court categorically held against enlarging the scope of the challenge against the award, not ordinarily available in an appeal; by way of a petition under Articles 226 and 227. That is not the case here and the petitioner herein, who seeks invocation of the supervisory jurisdiction, is not the insurer, but the alleged tort-feasor and it is not the quantum which is challenged. 6. It has to be noticed that, what essentially comes to fore is that the petitioner was not able to put forward any of his contentions for reason of his being set _ex parte_ . The petitioner in the application under Order IX Rule 13 contended that though he appeared in the claim petition before the Tribunal, he could not contest it because he himself suffered injuries in the accident and he was working in the district of Kasaragod. It is also pertinent that the OP(MAC).No.1311 of 2012-C - 5 - petitioner had, within the time prescribed, approached the Court for setting aside the _ex parte_ award. In such a situation, interest of justice demands a fair disposal of the claim petition after hearing the parties. 7. This Court is of the opinion that the issue of maintainability hence, does not arise at all, since this Court sitting in the jurisdiction under Article 227 is entitled to look into whether the Tribunal has considered the issue properly and in consonance with accepted principles of deciding an application under Order IX Rule 13. The petitioner had raised valid contentions, which were merely dismissed by the Tribunal as being not satisfactory. It is also to be specifically noticed that though the petitioner's contention was that he was working in Kasaragod district as noticed by the Tribunal, while noticing the contentions raised, in the operative portion of the order, it has been stated that the office in which petitioner is working is also situated in the Civil Station Building, where the Tribunal is also housed. This would indicate that the Tribunal has gone on the OP(MAC).No.1311 of 2012-C - 6 - premise that the petitioner was working at Kottayam itself when the proceedings before the Tribunal were prosecuted. 8. In the circumstances detailed above and also relying on the unreported decision of this Court rendered in O.P.(MAC).No.2904 of 2012 on 22.02.2013, this Court is of the opinion that the matter can be remanded, on condition that the petitioner deposits one-half of the amount awarded, which is Rs.2,96,250/-, before the Tribunal within a period of two months from today. The parties shall appear before the Tribunal on 03.02.2014 and the Tribunal shall proceed with the matter even without the petitioner depositing the amounts, however, on condition that final orders shall be passed only after deposit of the amounts as stipulated in this judgment. If the petitioner does not remit the amounts, Exhibit P1 would be in force. On deposit of the amounts, Exhibit P1 would stand set aside and the Tribunal shall, at any rate, dispose of the Claim Petition within four months from the date of appearance of the parties before the Tribunal. OP(MAC).No.1311 of 2012-C - 7 - The Original Petition is allowed. No costs. The respondents shall also be allowed to withdraw an amount of Rs.50,000/- (Rupees fifty thousand only) from the amounts deposited by the petitioner immediately on such deposit, and the balance shall depend upon the final orders to be passed in the Claim Petition. That amount, in any event, shall not be liable to be refunded, even if the contentions of the petitioner are in toto upheld by the Tribunal. However, if any award is made, the same shall be adjusted from the amounts awarded. Sd/K.Vinod Chandran Judge. vku/- ( true copy )