Subhash Chandran vs Chandrasekharan Nair
2021 Latest Caselaw 22177 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
           THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
     FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                            WP(C) NO. 1643 OF 2010
 AGAINST THE AWARD IN OPMV 1288/1998 OF MOTOR ACCIDENT CLAIMS
              TRIBUNAL, ATTINGAL, THIRUVANANTHAPURAM.
PETITIONER    :

             SUBHASH CHANDRAN, S/O.PANDAREEKAKSHAN,
             SREE NIVAS, VENJARAMOODU P.O., THIRUVANANTHAPURAM.
             BY ADV SRI.S.RAJEEV


RESPONDENTS       :

       1     CHANDRASEKHARAN NAIR, S/O.ACHUTHA KURUP,
             ARIKATHU VARATHU VEEDU, MAMOM, ATTINGAL.
       2     BIJU KUMAR, SO.VISWANADHAN NAIR,
             BEEN BHAVAN, EDACKODU P.O.
       3     NEW INDIA ASSURANCE COMPNAY,
             PALAYAM, TRIVANDRUM.
             BY ADVS.SRI.M.AJAY IRUMPANAM
             SRI.BENOJ C AUGUSTIN
             SRI.HARISH GOPINATH
             SMT.KVP.JAYALEKSHMY
             SRI.R.S.KALKURA
             SRI.M.S.KALESH
             SRI.LAL GEORGE FOR R3
             SRI.NAIR AJAY KRISHNAN
             SRI.NAGARAJ NARAYANAN FOR R1
             SMT.A.V.PRIYA
             SRI.PRATHAP PILLAI
             SRI.RAJAN VELLOTH
             SRI.SAIJO HASSAN
             SRI.A.S.SABU
             SRI.V.VINAY MENON

       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON    05.11.2021,     THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P(C) No.1643 of 2010                     2




                       MOHAMMED NIAS C.P., J.
               ------------------------------------------------
                       W.P(C) No.1643 of 2010
             ----------------------------------------------------
            Dated this the 5th day of November, 2021


                           JUDGMENT

Petitioner is the first respondent in O.P(M.V) No.1288 of

1998 MACT, Attingal, claiming compensation alleging that he

sustained injuries in the motor vehicles accident. The first

respondent alleged that he was pushing the Lorry bearing

registration No.KBV 6145 for getting the vehicle started to park it

outside the workshop. The second respondent, who took the vehicle

forward hit the first respondent, who sustained injuries. Second

respondent is the driver and the third respondent is the insurer of

the lorry mentioned above.

2. Petitioner submits that he is the registered owner of the

said lorry, which was entrusted to the workshop for repair and when

the other vehicles came for repair, the same was removed from the

workshop. He has also alleges that the first respondent came there

in a drunken state and due to his negligence, he sustained injuries.

Petitioner further submits that he has not been served with any

notice from the Tribunal and he came to know about the claim only

when he received notice in the Execution petition on 24-12-2002.

Immediately on coming to know about this, he filed I.A No.151 of

2003 to set aside the ex-parte order dated 18-04-2002 passed by

the Tribunal. The Tribunal, by Ext.P2 order, dismissed the said

application. It is aggrieved by the said order, the petitioner has filed

this writ petition in the year 2010.

3. On admission, this Court granted stay on the condition

that the petitioner deposits Rs.25,000/- within two weeks. The

petitioner states that he has complied with the condition imposed in

the order of this Court on 18-01-2010.

4. Heard the learned counsel for the petitioner, the learned

counsel for the 1st and 2nd respondents and also the learned counsel

for the 3rd respondent Insurance Company. Respondents have

strongly opposed the contentions of the petitioner.

5. Learned counsel for the first respondent submits that

the petitioner's remedy is to file an appeal and not a writ petition

challenging dismissal of Ext.P2. Learned counsel for the 3 rd

respondent submits that there has been considerable delay in filing

Ext.P2 petition and no application has been filed explaining the

delay of the period starting from the date of the order. I have

considered the rival contentions and I am of the firm view that an

opportunity has to be granted to the petitioner to contest the case

on merits. It is trite that the applications for setting aside the ex-

parte order has to be considered liberally and as far as possible,

such claims are to be decided on merits. Accordingly, Ext.P2 order

stands set aside. Since a condition imposed on admission of the

above writ petition, no further conditions are being imposed now

for setting aside the award and for allowing Ext.P2 petition. As

Ext.P2 order stands set aside and the ex-parte decree set aside, the

Tribunal will consider the original petition on merits. The parties

are directed to appear before the Court below on 22-11-2021.

The Motor Accidents Claims Tribunal, Attingal is directed to

consider de novo and dispose of O.P(MV) No.1288 of 1998 in

accordance with law, as early as possible, at any rate, within four

months from the date of receipt of a copy of this judgment.

The writ petition is allowed as above.

Sd/-

MOHAMMED NIAS C.P, JUDGE

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