Vijayamma and Others v Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944`** ``` OP (MAC) NO. 37 OF 2023 ``` ``` COMMON ORDER DATED 12.08.2022 IN I.A NO.3662/2022 AND I.A NO.3663/2022 IN OP(MV)NO.810/2003 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA ``` ## **`PETITIONERS/PETITIONERS:`** ``` 1VIJAYAMMA AGED 68 YEARS W/O SANKARAN, KALARICKAL THARAYIL VEEDU, KATTANAM MURI, BHARANIKKAVU PANCHAYATH, KATTANAM, PIN - 690503 2BINDU AGED 48 YEARS D/O SANKARAN, KALARICKAL THARAYIL VEEDU, KATTANAM MURI, BHARANIKKAVU PANCHAYATH, KATTANAM, PIN - 690503 3BAIJU AGED 45 YEARS S/O SANKARAN, KALARICKAL THARAYIL VEEDU, KATTANAM MURI, BHARANIKKAVU PANCHAYATH, KATTANAM, PIN - 690503 BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH NIMESH THOMAS ``` OP(MAC) No.37 of 2023 2 ## **`RESPONDENT/RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO. LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, THIRUVALLA, PATHANAMTHITTA, PIN - 689101 ``` ``` SMT KS SANTHI, SC ``` ``` THISOP(MAC)HAVINGCOMEUPFORADMISSIONON 14.02.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` OP(MAC) No.37 of 2023 3 ## **JUDGMENT** The petitioners herein are the claimant Nos.1, 3, and 4 in OP(MV) No. 810/2003 on the files of MACT, Mavelikkara. The above claim petition was filed consequent to the death of one Binu, the son of the 1st petitioner and the brother of petitioners 2 and 3. The husband of the 1st petitioner herein, late Sri. Sankaran was the 2nd claimant in the claim petition. It appears that during the pendency of the proceedings before the Tribunal, the 2nd claimant passed away on 31.07.2007. As the right to sue survived to the other claimants being the legal representatives of late Sankaran, no application in terms of order XXII Rule 2 was preferred to record the other claimants as the legal representatives of the deceased. An award was passed by the Tribunal, which was taken up in appeal by the claimants as well as the respondent, the insurance company. By a common judgment dated 23.12.2021, the appeal preferred by the insurance company was rejected, and the one filed by the petitioners was allowed, and enhanced compensation was allowed. Thereafter, separate application as I. A No.3662/2022 for getting the petitioners recorded as OP(MAC) No.37 of 2023 4 the legal representatives of the 2nd claimant, and I.A.3663/2022 was preferred for releasing the amounts deposited by the insurance company. By Ext.P3 common order, the Tribunal rejected Exts.P1 and P2, holding that the legal heirs of Sankaran had not been recorded in the array of parties during the pendency of the petition or even while the appeal was pending before this Court. It is in the above backdrop this writ petition is filed seeking the following relief: i) set aside Exhibit.P3 order dated 12.08.2022 in I.A No.3662/2022 and I.A No.3663/2022 in OP(MV) No.810/2003 of the Motor Accidents Claims Tribunal, Mavelikkara, and allow Exhibit.P1 I.A No.3662/2022 and Exhibit.P2 I.A No.3663/2022 2. I have heard the learned counsel appearing for the petitioners and the learned counsel for the respondent. 3. Sri. George Varghese, the learned counsel for the petitioners, points out that while preferring the appeal before this Court, it was mentioned by the petitioners herein that the 2nd claimant had expired and also that his legal heirs were on record. According to the learned counsel, the Division Bench of this Court in **Soumya S v. Shan P.G** [2021(5) KLT Online 1183] had occasion to hold that even if no formal application was made under Order XXII Rule 2 of CPC to record the legal OP(MAC) No.37 of 2023 5 representative of the deceased, who was already in the array of parties, there would be no abatement. 4. The learned Standing Counsel appearing for the respondent submitted that the order issued by the Tribunal does not warrant any interference. According to the learned counsel, the amount ordered by the Tribunal as modified by this Court has already been deposited. 5. I have considered the submissions advanced. In the judgment cited by the learned counsel appearing for the petitioners, a Division Bench of this Court had occasion to observe that there is nothing in the Code of Criminal Procedure to support the view that the failure to give intimation and the consequent omission on the part of the court to make the entry under Order XXII Rule 2 of the CPC will make the decree a nullity. ## 6. Para 9 and 10 of the judgment rendered by this Court reads as under: **‘9** . Order XXII Rule 2 CPC requires the court to cause an entry to be made on the record to the effect that the suit survives against the surviving defendant or defendants. It was not necessary to implead them again, for substituting them in a different capacity as the legal representatives of the deceased. In Parameswaran Padmanabhan Nambi v. Ramakrishna Iyer Raghava Iyer reported in 1952 KLT 103, a Division OP(MAC) No.37 of 2023 6 Bench of this Court held that the Civil Procedure Code does not provide for any application being made in that behalf, and even an oral intimation will be sufficient. There is nothing in the Civil Procedure Code to support the view that the failure to give the intimation, and the consequent omission on the part of the court to make the entry as required by Rule 2 of Order XXII CPC, will make the decree a nullity. **10** . The Family Court was intimated about the death of the 1st respondent on 26.10.2010 and ignoring the fact that the right to sue survived, and his legal heirs were already in the party array, the court proceeded to record that the case against the 1st respondent abated, and hence it was not legal or proper. So we find that the O.P against the 1st respondent will not abate as his estate was substantially represented by his legal heirs who were already in the party array.’ 7. I find that the fact that Sankaran is no more and his legal heirs are already on record was specifically averred in the appeal preferred by the petitioners before this court. Having considered the facts and circumstances, in the light of the law laid down in **Soumya** (supra), I am of the considered opinion that the impugned order cannot be sustained under law. 8. Ext.P3 common order will stand quashed. I.A No.3662/2022 filed by the petitioners shall be reconsidered after affording an opportunity to the petitioners to substantiate that they are the legal heirs OP(MAC) No.37 of 2023 7 of the deceased 2nd claimant. Appropriate orders shall be passed within a period of one month. After passing the order on I. A No.3662/2022, I. A No.3663/2022 shall be reconsidered, and appropriate orders shall be passed. This Original Petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** ``` IAP ``` OP(MAC) No.37 of 2023 8 ## **`APPENDIX OF OP (MAC) 37/2023`** ``` PETITIONERS’ EXHIBITS: ``` ``` Exhibit P1 ``` ``` THE TRUE COPY OF I. A. NO. 3662/2022 IN OP(MV) NO. 810/2003 FILED BY THE PETITIONERS BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA ``` ``` Exhibit P2 ``` ``` THE TRUE COPY OF I. A. NO. 3663/2022 IN OP(MV) NO. 810/2003 FILED BY THE PETITIONERS BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA ``` ``` Exhibit P3A TRUE COPY OF COMMON ORDER DATED 12.08.2022 IN I. A. NO.3662/2022 AND I. A. NO. 3663/2022 IN OP(MV) NO. 810/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA ``` ``` Exhibit P4THE TRUE COPY OF THE MEMORANDUM OF APPEAL IN M. A. C. A. NO. 2081/2013 FILED BY THE PETITIONERS BEFORE THE HONOURABLE HIGH COURT ``` ``` RESPONDENTS’ EXHIBITS: ``` ``` NIL ```