Tr.P(C) Nos. 729 & 754 of 2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 TR.P(C) NO. 754 OF 2022 ``` ## **`OPMV 797/2021 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL`** ## **`PETITIONERS/RESPONDENTS 4 TO 6:`** - `1 BINDU TS AGED 40 YEARS W/O BIJU.M, PALAYATHUMMUKAL VEEDU, CHELLAMCODE, ANAD.P.O,-695541.` - `2 GANGALESKHMI, AGED 17 YEARS D/O.BIJU.M, PALAYATHUMUKAL VEEDU, CHELLAMCODE, ANAD.P.O, -695541.(MINOR REPRESENTED BY THE 1ST PETITIONER HER MOTHER)` - `3 GOUREESH, AGED 14 YEARS S/O.BIJU.M, PALAYATHUMMUKAL VEEDU, CHELLAMCODE, ANAD.P.O, -695541(MINOR REPRESENTED BY THE 1ST PETITIONER HER MOTHER). BY ADVS. PRATHEESH.P ANJANA KANNATH T.S.SREEKUTTY` ## **`RESPONDENTS/PETITIONER& RESPONDENTS 1 TO 3:`** - `1 KAMALAKSHI,AGED 70 YEARS W/O MANIYAN, THADATHARIKATHU VEEDU, PANAYAM.P.O, PANAVOOR, THIRUVANANTHAPURAM-695568.` - `2 UMMER, RAFEEQ, S/O ABOOBACKER, NALAKATHU HOUSE, 10/60 C GREEN GARDEN ROAD, KAKKANAD.P.O, ERNAKULAM-682030.` - `3 ANILKUMAR, S/O RAMACHANDRAN, NIVARTHIL VEEDU, SMCXXIV KUTTIKKATTIL JUNCTION, CHERTHALA.P.O, ALAPPUZHA688524.` - `4 M/S HDFC ERGO GENERAL INSURANCE CO.LTD, 3RD FLOOR, MALANKARA AVENUE, MAHATHMA GANDHI ROAD, PATTOM, THIRUVANANTHAPURAM-695004. BY ADVS.` 2 Tr.P (C) Nos. 729 & 754 of 2022 ``` SUJITH MATHEW JOSE ELIZEBATH GEORGE(K/954/2018) ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2023, ALONG WITH Tr.P(C).729/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Tr.P (C) Nos. 729 & 754 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 ``` ## **`TR.P(C) NO. 729 OF 2022`** ## **`OPMV 827/2021 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM`** ## **`PETITIONER/1ST RESPONDENT IN OP(M.V):`** ``` UMMER RAFEEQ UMMER RAFEEQ, S/O ABOOBACKER, NALAKATH HOUSE, GREEN GARDEN ROD, KAKKANAD ERNAKULAM, PIN - 682030 BY ADVS. SUJITH MATHEW JOSE ELIZEBATH GEORGE EMMANUEL CYRIAC ``` ## **`RESPONDENTS:`** ``` 1KAMALAKHSI KAMALAKHSI, M/O LATE BIJU,THADATHARIKATHU VEEDU,PANAYAM PO, PANAVOOR,THIRUVANANTHAPURAM, PIN - 695568 2ANIL KUMAR S/O RAMACHANDRAN,NIVARTHIL VEEDU, SMC XXIV, NEAR KUTTIKATTIL JUNCTION, CHERTHALA NORTH, ALAPUZHA., PIN - 688524 3HDFC ERGO GIC LTD 6THFLOOR, BISHOP JEROME NAGAR,CHINNAKADA,KOLLAM - REPRESENTED BY ITS MANAGER, PIN - 691001 4BINDHU AGED 39 YEARS W/O LATE BIJU, PALAYATHINMUKAL VEEDU, CHELLAMCODE POOVATHOOR NEDUMANGADU THIRUVANANTHAPURAM., PIN - 695541 5GANGA LAKSHMI AGED 16 YEARS D/O LATE BIJU, REPRESENTED BY BINDHU, W/O LATE BIJU, PALAYATHINMUKAL VEEDU, CHELLAMCODE POOVATHOOR ``` 4 Tr.P (C) Nos. 729 & 754 of 2022 ``` NEDUMANGADU THIRUVANANTHAPURAM., PIN - 695541 6GOWREESH AGED 16 YEARS S/O LATE BIJU,REPRESENTED BY BINDHU, W/O LATE BIJU, PALAYATHINMUKAL VEEDU, CHELLAMCODE, POOVATHOOR NEDUMANGADU THIRUVANANTHAPURAM, PIN - 695541 ``` ``` THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2023, ALONG WITH Tr.P(C).754/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 Tr.P (C) Nos. 729 & 754 of 2022 ## **COMMON ORDER** As the transfer petitions are between the same parties and arise out of the same motor accident, which led to the death of Biju (deceased), they are being disposed of by this common order. 2. Tr.P(C) No.754/2022 is filed by the wife and children of the deceased, against the mother of the deceased, owner, driver and insurer of the offending vehicle, to transfer O.P.(M.V))No.797/2021 filed by the mother from the Motor Accidents Claims Tribunal (in short, Tribunal), Attingal to the Tribunal at Kollam. Tr.P(C)No.729/2022 is filed by the owner of the offending vehicle, against the mother of the deceased, driver, insurer and the wife and children of the deceased, to transfer O.P.(M.V) No.827/2021, filed by the wife and 6 Tr.P (C) Nos. 729 & 754 of 2022 children from the Tribunal at Kollam to the Tribunal at Attingal. For the sake of convenience, the parties and the pleadings are referred to as per the litigate status in Tr.P(C)No.754/2022, which is treated as a leading case. 3. The petitioners ‘ case, is that, they have filed O.P (M.V) No.827/2021 (Annexure 2) before the Tribunal at Kollam, against the mother of the deceased, owner, driver and insurer of the offending vehicle, claiming compensation on account of the death of the deceased. On the other hand, the mother of the deceased has filed O.P(M.V)No.797/2021 (Annexure 1) against the petitioners, the owner, driver and insurer of the offending vehicle, claiming compensation. As both the claim petitions are filed seeking compensation on account of the death of the deceased, they may be tried and disposed of by the same Tribunal, in order to avoid multiplicity of proceedings and conflict of decisions. Hence, the transfer petition. 7 Tr.P (C) Nos. 729 & 754 of 2022 4. The owner of the offending vehicle has filed Tr.P(C) No.729/2022, inter alia, contending that the two claim petitions may be tried by the same Tribunal in order to avoid multiplicity of proceedings and divergent findings. Hence, the transfer petition. 5. Heard; Smt. Anjana Kannath., the learned counsel appearing for the petitioners in Tr.P(C)No.754/2022 and Sri. Sujith Mathew Jose, the learned counsel appearing for the second respondent-owner of the vehicle. 6. The question is, which transfer petition is to be allowed. 7. On an appreciation of the rival pleadings in the transfer petitions, it can be deciphered that Annexure 2 is filed by the widow and the children of the deceased and Annexure 1 is filed by the mother of the deceased. 8. The law with respect to transfer of proceedings, particularly in cases where woman and children are parties, is no longer res-integra, in view of the categoric 8 Tr.P (C) Nos. 729 & 754 of 2022 declaration of law by the Hon'ble Supreme Court in **Sumitha Sing V. Kumar Sanjay and another** [2002 KHC 1889], **Mona Aresh Goel V. Aresh Satya Goel** [2000 KHC 1835], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [2016 KHC 6489], **Santhini V. Vijaya Venkatesh** [2017 (5) KHC 48] and **Aiswarya N.C.V. v. A.S. Saravana Karthik Sha** [2022 (5) KHC 185(SC)]. The Hon’ble Supreme Court has held that it is the convenience of the woman and children that has to be looked into, while ordering the transfer of a case from one Court to another. 9. Taking into consideration of the law laid down in the afore-cited decisions, the pleadings and materials on record and the totality of the facts and circumstances of the case, particularly the fact that the first petitioner is a widow and the petitioners 2 and 3 are minor children, I am inclined to exercise the discretionary powers of this Court under Section 24 of the Code of Civil Procedure in 9 Tr.P (C) Nos. 729 & 754 of 2022 favour of the petitioners in Tr.P.(C) No.754/2022 by ordering the transfer of Annexure 1 from the Tribunal at Attingal to the Tribunal at Kollam, so that the two claim petitions can be consolidated and jointly tried, which would save precious judicial time and avoid conflict of decisions. In the result, the transfer petitions are disposed as follows:- (i) Tr.P.(C)No.729/2022 is dismissed. (ii) Tr.P.(C)No.754/2022 is allowed by ordering the withdrawal of O.P(M.V) No.797/2021 from the Tribunal at Attingal and transferring it to the Tribunal at Kollam. (iii) The parties would be at liberty to move the Tribunal at Kollam and seek for the consolidation and joint trial of Annexures 1 and 2. (iv) The Registry shall forward a copy of this common order to the Tribunal at Attingal with 10 Tr.P (C) Nos. 729 & 754 of 2022 instructions to forthwith transmit the records in Annexure 1 to the Tribunal at Kollam. (v) ) The Tribunal at Kollam shall, immediately on the receipt of the records in Annexure 1, post the cases along with Annexure 2. Sd/- **C.S.DIAS, JUDGE** rmm/30/3/2023 11 Tr.P (C) Nos. 729 & 754 of 2022 ## **`APPENDIX OF TR.P(C) 729/2022`** |`PETITIONER`|`ANNEXURES`| |---|---| |`Annexure 1`|`TRUE COPY OF THE REGISTRATION CERTIFICATE`| |`Annexure 2`|`TRUE COPY OF THE POLICY NO.2315-2039-`| ||`7020-9600-000 ISSUED BY THE 3RD`| ||`RESPONDENT`| |`Annexure 3`|`TRUE COPY OF THE FIR NO. 148/2021 OF`| ||`ENATHU POLICE STATION`| |`Annexure 4`|`TRUE COPY OF THE OP(MV) NO. 827/2021`| ||`PENDING BEFORE THE MOTOR ACCIDENTS CLAIMS`| ||`TRIBUNAL, KOLLAM`| |`Annexure 5`|`TRUE COPY OF THE OP(MV) NO. 797/2021`| ||`PENDING BEFORE THE MOTOR ACCIDENTS CLAIMS`| ||`TRIBUNAL, ATTINGAL`| 12 Tr.P (C) Nos. 729 & 754 of 2022 ## **`APPENDIX OF TR.P(C) 754/2022`** |`RESPONDENT`|`ANNEXURES`| |---|---| |`Annexure 1`|`THE COPY OF THE CLAIM PETITION FILED BY`| ||`THE 1ST RESPONDENT AS OP(MV)NO. 797/2021`| ||`ON THE FILE OF MACT, ATTINGAL DATED`| ||`9.8.2021.`| |`Annexure 2`|`THE COPY OF THE CLAIM PETITION FILED BY`| ||`THE PETITIONERS BEFORE MACT, KOLLAM AS`| ||`OP(MV)NO.827/2021 DATED 8.7.2021`| |`Annexure 3`|`THE PROCEEDINGS OF ANNEXURE 2 CLAIM`| ||`PETITION ON THE FILE OF MACT, KOLLAM`| ||`DOWNLOADED FROM THE WEBSITE.`|