Kerala High Court
Davidson vs Davidson on 12 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
OP (MAC).No.7 OF 2021
AGAINST THE ORDER/JUDGMENT IN OPMV 1302/2009 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, NEYYATTINKARA
PETITIONER/1ST RESPONDENT:
DAVIDSON
AGED 68 YEARS
S/O THAPASIMUTHU, KARMAL HOUSE,
HOUSE NO .7/473, KOLLAYIL,
DHANUVACHAPURAM P.O.NEYYATTINKARA.
BY ADVS.
SRI.P.R.VENKATESH
SRI.G.KEERTHIVAS
RESPONDENTS:
1 MADHU
S/O DANAM, THEKKAZHIKATHI PUTHEN VEEDU,
PAYATTUVILA, KOTTUKAL P.O.-691 519.
2 SELVARAJ,
S/O ANOSE NADAR,
R.S BHAVAN,
KARUVINMUKAL, MALAYINKAL P.O.
3 M/S THE NEW INDIA ASSURANCE CO LTD
BRANCH OFFICE, 2ND FLOOR,
SWADESHABHIMANI COMPLEX,
NEYYATTINKARA-695 121,
REPRESENTED BY ITS BRANCH MANAGER.
R3 BY ADV. SRI.LAL GEORGE
THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 12.03.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(MAC).7/2021
2
JUDGMENT
Petitioner herein is the first respondent in O.P(M.V).No.1302
of 2009 of the MACT, Neyyattinkara, in which, the first respondent
herein is the applicant. First respondent sought compensation for the
injuries consequent to a road accident which he had sustained. Original
petitioner's vehicle was involved. Learned Tribunal passed award
granting relief to the extent of Rs.4,83,000/- with interest and the
petitioner and the second respondent therein were directed to pay the
money. The insurance policy does not cover the claim of the pillion
rider. Thereafter, petitioner herein filed I.A.Nos.809 of 2018 and 810 of
2018 in O.P(M.V).No.1302 of 2009 seeking condonation of delay of 395
days in preferring the application for setting aside the ex parte award.
Both the applications were considered jointly by the court below and
vide Ext.P12 order, both the applications were dismissed. This is under
challenge in the present Writ Petition.
2. Notice was served on R1 and R2. R3 though not burdened
with any liability, opposed the application.
3. On merits, the reason stated for condoning the delay was
that the petitioner is a Christian Evangelical Preacher who had spent
most of his time in North India and abroad. Hence, he could not appear
before the court below or to instruct the lawyer. Hence, it so happened
that an award was passed. He was not aware of the pendency of the
O.P(MAC).7/2021
proceedings, it was claimed.
4. Having considered the above facts, I feel that the court
below by Ext.P2 order did not analyze the actual contentions set up by
the petitioner. Court insisted that, he should have produced materials
to show that, he was out of station. This appears to be redundant in the
light of the fact that the petitioner in the interlocutory application has
specifically asserted that, he was working in North India and
respondent did not file any objection seriously disputing the above
claim. In the light of above, order passed by the court below is not
legally sustainable and is liable to be set aside.
In the result, original petition is allowed. Ext,P2 is set aside and
I.A.Nos.809 of 2018 and 810 of 2018 stands allowed. Accordingly,
award will stand set aside and the matter remitted to the court below
for fresh consideration, after giving reasonable opportunity to both
sides to contest their case. Both sides shall appear before the MACT,
Neyyattinkara on 05.04.2021 and thereafter, court below shall proceed
in accordance with law and pass appropriate orders.
Sd/-
SUNIL THOMAS
Sbna JUDGE
O.P(MAC).7/2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AWARD ON OP(MV) NO
1302/2009 DATED 8.12.2016 PASSED BY THE
TRIBUNAL
EXHIBIT P2 TRUE COPY OF THE COMMON ORDER DATED
6.10.2020 IN IA NOS 809/2018 IN OP(MV) NO
1302/2009 ON THE FILES OF THE MACT,
NEYYATTINKARA
EXHIBIT P3 TRUE COPY OF THE IA NO 809/2018 IN OP(MV)
NO 1302/2009
EXHIBIT P4 TRUE COPY OF IA NO 810/2018 IN OP(MV) NO
1302/2009
