Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE3D DAY OF DECEMBER201412TH AGRAHAYANA, 1936 O.P.(MAC).No.4715 of 2013 (O) ------------------------------------------- [AGAINST THE ORDER
IN I.A.NO.4785 OF 2010 IN O.P.(MV) NO.18 OF 2001 DATED1908.2013 OF THE COURT OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD. -------------------------------------------------- PETITIONER(S):- ------------------------- UNNIKRISHNAN, S/O.SANKARAN EZHUTHASSAN, ANIKKAL HOUSE, 22/195, THIRUNELLAYI, PALAKKAD BY ADV. SRI.JACOB SEBASTIAN. RESPONDENT(S):- -------------------------- 1. SULAIMAN, AGED38YEARS, S/O.BHAVA, THIRUKKODE, NADUVATHUPARA, PERINGOTTUKURISSI, PALAKKAD, PIN678574 2. M.S.MOHANDAS, AGED28YEARS, S/O.SIVARAMAN, MELEPPURA, PARUTHIPULLI, ALATHUR, PALAKKAD , PIN678573 R2 BY ADV. SRI.C.VINOD KUMAR. THIS OP (MAC) HAVING BEEN FINALLY HEARD ON0312-2014, ALONG WITH O.P.(MAC).NO.4716 OF2013O, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- OP (MAC).No.4715 of 2013 (O) ------------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS:- --------------------------------------- EXHIBIT P1 COPY OF THE AGREEMENT DATED2106/1999 ENTERED INTO BETWEEN THE PETITIONER AND THE2D RESPONDENT. EXHIBIT P2 COPY OF THE JUDGMENT
DATED67/2010 IN MACA NO.2165/2009 OF THIS HONOURABLE COURT. EXHIBIT P3 COPY OF IA NO.4785/2010 IN OP (MV) NO.18/2001 OF MACT, PALAKKAD, DATED2209.2010. EXHIBIT P4 COPY OF THE ORDER
DATED198/2013 OF MACT PALAKKAD IN IA NO.4785/2010 IN OPMV182010. RESPONDENT(S)' EXHIBITS --------------------------------------- NIL. Vku/ ( true copy ) K.Vinod Chandran, J.
------------------------------------------------------------------ O.P.(MAC).Nos.4715 of 2013-O & 4716 of 2013-O ------------------------------------------------------------------- Dated this the 03rd day of December, 2014 JUDGMENT
The petitioner is aggrieved with Exhibit P4 orders passed by the Motor Accidents Claims Tribunal, Palakkad [for brevity "the Tribunal"], produced respectively in both the above Original Petitions. The said orders have been passed in Interlocutory Applications filed respectively in O.P.(MV).No.19 of 2001 and 18 of 2001. The petitioner was impleaded in the claim petitions as the registered owner of the vehicle, which was involved in the accident. The vehicle was said to be driven by the 2nd respondent, who was also impleaded before the Tribunal. Neither the registered owner nor the driver appeared before the tribunal in both the claim petitions.
2. The accident which occurred on 20.06.1999 gave rise to the two claims raised in the year 2001. The matter was pending before the Tribunal till 2008 when an award was passed on 16.01.2008. With more than 2= years delay, the petitioner approached the Tribunal to set aside the ex parte award, on the OP(MAC).Nos.4715 of 2013 & - 2 - 4716 of 2013 ground that the petitioner was not the owner of the vehicle, though the registration stands in his name. The present applications to set aside the ex parte award in the respective claims petitions were filed on 22.09.2010 and the same were dismissed as per order dated 19.08.2013.
3. It is to be noticed that the petitioner had, against the original awards, filed M.A.C.A.Nos.2165 of 2009 and 2170 of 2009. This Court had considered the same by Exhibit P2, produced in each of the Original Petitions. The contention raised therein was that the driver of the vehicle, the 2nd respondent herein, is actually the owner. It was contended that there was an agreement; between the 1st and 2nd respondents in the claim petitions, which was not produced before the Tribunal, and, hence, the petitioner sought for an opportunity so to do. The same was granted by Exhibit P2 judgment, setting aside the award dated 16.01.2008. The parties were directed to appear before the Tribunal on 05.08.2010.
4. The learned counsel for the petitioner submits that the judgment of this Court itself was received on 17.09.2010. However, in the meanwhile, the Tribunal had taken up the matter, since there was a specific direction for appearance of the parties OP(MAC).Nos.4715 of 2013 & - 3 - 4716 of 2013 on 05.08.2010. The matter was posted on 05.08.2010, 11.08.2010, 13.08.2010, 17.08.2010 and again on 31.08.2010. On the last date of posting, since none appeared, awards were re-affirmed, ex parte. The applications filed to restore the claim petitions were dismissed by Exhibit P4.
5. The Tribunal noticed that the petitioner had ample opportunity to produce evidence before the Tribunal. The Tribunal also noticed that the petitioner had not appeared before the Tribunal despite direction of the High Court. It was, hence, that the applications for setting aside the ex parte award and for restoration of the claim petitions were rejected.
6. The learned counsel appearing for the petitioner submits that, it was a bona fide omission, since though the judgment was passed in open Court, the date of appearance was not clear and the petitioner came to know of it only when the judgment was received on 17.09.2010. In such circumstance, this Court is of the opinion that the Tribunal should consider the matter afresh. However, the injured shall not be left in the lurch when the dispute, of who the owner is and on whom the liability rests, is agitated between the respondents in the claim petitions. OP(MAC).Nos.4715 of 2013 & - 4 - 4716 of 2013 7. The alleged agreement between the petitioner and the 2nd respondent is produced as Exhibit P1. The learned counsel appearing for the 2nd respondent submits that this is a concocted document, which was entered into after the accident itself. The 2nd respondent, who was the driver of the vehicle, is said to have been coerced into signing the same and, hence, the 2nd respondent opposes the claim of the petitioner.
8. However, that is a matter which has to be considered by the Tribunal after leading evidence on the said contention. In the circumstance of the injured having not been paid the compensation till date, if the petitioner pays the entire amounts due in the award in O.P.(M.V.).Nos.18 of 2001 and 19 of 2001 within a period of three months from today, the ex parte award shall stand set aside to the extent of the finding on liability alone, and the question of liability shall be considered afresh. It is made clear that, on deposit of the amount, the same shall be disbursed to the injured. The petitioner, if establishing the claim made before this Court, would have the remedy of recovery from the 2nd respondent. It is also made clear that for considering the question of liability, the claimant need not be issued with any notice nor participated in the enquiry. OP(MAC).Nos.4715 of 2013 & - 5 - 4716 of 2013 The award passed would not be altered at all and the question to be decided is of the liability alone. The petitioner and the 2nd respondent shall appear before the Tribunal on 06.03.2015. If no deposit is made as directed above, the award shall remain as such. The Original Petitions are disposed of as above. Parties are left to suffer their respective costs. Sd/- K.Vinod Chandran Judge vku/- ( true copy )