Kerala High Court
The Assistant Manager vs The Assistant Manager on 15 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942
OP (MAC).No.94 OF 2020
AGAINST THE ORDER DATED 19.02.2020 IN I.A. NO.2/2020 IN OP(MV)
NO.621/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL
PETITIONER/PETITIONER/2ND RESPONDENT :
THE ASSISTANT MANAGER,
NEW INDIA ASSURANCE COMPANY LTD,
MOTOR THIRD PARTY HUB,
GOVERNMENT PRESS ROAD,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.A.A.ZIYAD RAHMAN
SRI.V.S.SHIRAZ BAVA
SRI.SURESH SUKUMAR
SRI.ANZIL SALIM
SHRI.CHACKO MATHEWS K.
RESPONDENTS/RESPONDENTS/1ST RESPONDENT & PETITIONER :
1 JOSH,
TC 31/840-1, PULLI LANE,CHAKKAI,
PETTAH.P.O, THIRUVANANTHAPURAM-695024.
2 ANILKUMAR,
S/O MANI, PLAVILA VEEDU,
NELLICODE, VADASSERIKONAM P.O.,
THIRUVANANTHAPURAM-695143.
R1 BY ADV. SRI.GEORGE MATHEW
R1 BY ADV. SMT.ELSA DENNY PINDIS
R1 BY ADV. SRI.DIPU JAMES
R1 BY ADV. SRI.V.S.VINEETH KUMAR
R1 BY ADV. SRI.M.D.SASIKUMARAN
R1 BY ADV. SHRI.MATHEW K.T.
R1 BY ADV. SHRI.PRAVEEN S.
R1 BY ADV. SHRI.SUNIL KUMAR A.G
R1 BY ADV. SHRI.GEORGE K.V.
R2 BY ADV. SRI.C.R.SIVAKUMAR
THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 15.02.2021, ALONG
WITH OP (MAC).97/2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(MAC)s.94 & 97/2020 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942
OP (MAC).No.97 OF 2020
AGAINST THE ORDER DATED 19.02.2020 IN I.A. NO.2/2020 IN OP(MV)
624/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL
PETITIONER/PETITIONER/2ND RESPONDENT :
THE ASSISTANT MANAGER,
NEW INDIA ASSURANCE COMPANY LTD,
MOTOR THIRD PARTY HUB,
GOVERNMENT PRESS ROAD,
THIRUVANANTHAPURAM
BY ADVS.
SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
SRI.SURESH SUKUMAR
RESPONDENTS/RESPONDENTS/ 1ST RESPONDENT & PETITIONERS 1 TO 4 :
1 JOSH
TC 31/840-1, PULLI LANE, CHAKKAI, PETTAH P.O.,
THIRUVANANTHAPURAM - 695 024.
2 BABY
W/O.AJIKUMAR, CHARUVILA VEEDU,
MAVINMOODU, KALLAMBALAM P.O.,
THIRUVANANTHAPURAM.
3 ABI, (MINOR), AGED 13 YEARS,
S/O.BABY
REPRESENTED BY HIS MOTHER BABY,
W/O.AJIKUMAR, CHARUVILA VEEDU, MAVINMOODU,
KALLAMBALAM P.O., THIRUVANANTHAPURAM - 695 605.
4 ANU,(MINOR AGED 7 YEARS),
D/O.BABY ,
REPRESENTED BY HER MOTHER BABY,
W/O.AJIKUMAR, CHARUVILA VEEDU,
MAVINMOODU, KALLAMBALAM P.O.,
THIRUVANANTHAPURAM - 695 605
OP(MAC)s.94 & 97/2020 3
5 BHASKARAN,
S/O.MUNDAN, OLIPPUVILA, VENKULAM,
EDAVA, THIRUVANANTHAPURAM - 695 311.
R2-R4 BY ADV. SRI.C.R.SIVAKUMAR
THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 15.02.2021,
ALONG WITH OP (MAC).94/2020, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
OP(MAC)s.94 & 97/2020 4
JUDGMENT
[ OP (MAC).94/2020, OP (MAC).97/2020 ]
The Insurance Company through its Assistant Manager has come
up with these petitions filed under Article 227 of the Constitution of
India impugning the common order passed by the Motor Accidents
Claims Tribunal, Attingal in O.P.(MV) No.621/2016 and O.P.(M.V)
No.624 of 2016.
2. As it is a short order, the same is extracted below, word by
word, for convenience.
"The 3rd respondent was set exparte, though they filed written
statement in this case. However this contentions were
considered in toto. Therefore there is no necessity to set aside
the exparte award. But the written statement of the petitioner
shall be entered in the award immediately after the petition
averment.
Hence the petition is allowed directing that the written
statement of the both shall be added in the award immediately
after the petitioner's averments.
This order forms part of the earlier award."
3. I have heard Sri Ziyad Rahman, the learned counsel
appearing for the petitioner and Sri C.R. Sivakumar, the learned
counsel appearing for the party respondents. Though it is reported that
the 5th respondent in O.P.(MAC) No.97 of 2020 is no more, the other
respondents are his legal heirs.
4. I find considerable merit in the submission of Sri Ziyad
Rahman, that the course adopted by the Tribunal is clearly illegal. The
petitioner had filed the application to set aside the ex parte award and
the Tribunal had chosen to allow the application. After allowing the
application, the course open to the Tribunal was to make an order
setting aside the award and to proceed with the claim petition by
granting all opportunity to the petitioner to substantiate the
contentions. Instead of adopting such a course, the Tribunal has issued
directions to incorporate the written statement in the award but
without setting aside the ex parte award. The setting aside of an ex
parte decree by the court which passed it, is regulated by the
provisions contained in Rule 13 of Order 9. In dealing with an
application to set aside an ex parte decree, the court has to confine its
attention to a consideration of the circumstances specified in Rule 13
and is not entitled to be guided by any other consideration. As rightly
submitted by the learned counsel, by refusing to set aside the ex parte
award, the petitioner was denied an opportunity to substantiate their
legal and factual contentions. In that view of the matter, I am unable
to sustain the impugned order.
5. At this stage, it is submitted by C.R. Sivakumar, that the
earning member of a family has lost his life and due to the laches of
the petitioner, the party respondents are reeling in financial turmoil.
Having regards to the submissions, I direct the petitioner to deposit
50% of the amount awarded in O.P. (MV) No.621/2016 and O.P. (MV)
No.624 of 2016 before the Motor Accidents Claims Tribunal, Attingal.
The amount disbursed shall be released to the party respondents as
per procedure and in accordance with law. The Tribunal shall also strive
to conclude the proceedings, expeditiously at any rate within a period
of 3 months from the date of production of a copy of this judgment.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
NS
APPENDIX OF OP (MAC) 94/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION
BEARING OP(MV)NO.621/2016 ON THE FILE
OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
ATTINGAL.
EXHIBIT P2 TRUE COPY OF THE AWARD DATED
29/11/2019, IN OP(MV)NO.621/2016 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,
ATTINGAL.
EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY
THE POLICE IN CRIME NO.639/2016 OF
KALLAMBALAM POLICE STATION.
EXHIBIT P4 TRUE COPY OF THE SCENE MAHASAR.
EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT
SUBMITTED BY THE PETITIONER IN
OP(MV)NO.621/2016.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED
19/02/2020.
RESPONDENT'S/S EXHIBITS: NIL
/TRUE COPY/
P.A. TO JUDGE
APPENDIX OF OP (MAC) 97/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION BEARING
OP(MV)NO.621/2016 OF THE FILE OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, ATTINGAL.
EXHIBIT P2 TRUE COPY OF THE AWARD DATED 29/11/2019,IN
OP(MV)NO.621/2016 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL,ATTINGAL.
EXHIBIT P3 TRUE COPY OF THE FINAL REPORT SUBMITTED BY
THE POLICE IN CRIME NO.639/2016 OF
KALLAMBALAM POLICE STATION
EXHIBIT P4 TRUE COPY OF THE SCENE MAHASAR.
EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT
SUBMITTED BY THE PETITIONER IN
OP(MV)NO.621/2016.
EXHIBIT P6 TRUE COPY OF THE ORDER ON 19/02/2020.
RESPONDENT'S/S EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
