M.P.Pailoth vs Joshy

M.P.Pailoth vs JOSHY

Type Court Judgment Court Kerala Decided Oct 29, 2019

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https://sooperkanoon.com/case/1905032

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Citation: sooperkanoon.com/1905032
Court: Kerala High Court
Judge: Honourable Mr. Justice a.Muhamed Mustaque
Decided On: Oct 29, 2019
Case Number: OP (MAC)/51/2019

Parties & Advocates

Appellant / Petitioner

M.P.Pailoth

Respondent

JOSHY

Excerpt

.....2 m.j.babu, s/o.jose, melepuram house, akarapatti, thalor, thrissur. 3 united india insurance company ltd., park house round north, thrissur. 4 tvs century associates, r4 is deleted from the party array at the risk of the petitioner as per order dated 26/08/20109 in ia.no.1/2019 in op(mac).51/2019. r1-2 by adv. sri.k.r.arun krishnan r1-2 by adv. smt.deepa k.radhakrishnan r3 by adv. sri.t.v.ajayakumarthis op (mac) having been finally heard on 29.10.2019, the court on the same day delivered the following: op (mac).no.51/2019 2judgmentdated this the 29th day of october 2019 the petitioner filed an application to set aside the ex parte award in o.p.(mv) no.2261/2006 on the file of the motor accidents claims tribunal, thrissur. along with the said application, the petitioner also filed a delay condonation application. the tribunal dismissed the above applications. challenging these orders, the petitioner has approached this court.2. the petitioner received a notice and filed ext.p2 written statement. however, the petitioner remained ex parte thereafter. accordingly, the ex parte award was passed. the vehicle had a valid insurancepolicy. however, the insurer contended that there was no driving licence. accordingly, the insurer was directed to pay the compensation amount with liberty to recover it from the owner. the petitioner has a case that the petitioner had transferred the vehicle. further, the petitioner has a case that the driver had licence as is op (mac).no.51/2019 3 evident from the claim petition itself. the petitioner points to the driving licence no.t/173/95 which is valid up to 19.01.2014. the accident occurred on 16.12.2005. it is to be noted that the award has already been satisfied by the insurer. the revenue recovery proceedings are now being initiated against the petitioner.in such circumstances, this court is of view that on payment of costs to the insurer, the application for setting aside the ex parte award can be allowed to the extent.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941 OP (MAC).No.51 OF 2019 AGAINST THE COMMON ORDER DATED 04.01.2019 IN I.A.NO.7540/2018 AND I.A.NO.7541/2018 IN IN OP(MV)NO.2261/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ----- PETITIONER/S: M.P.PAILOTH, AGED 60 YEARS, S/O.PAILOTH, MELETH HOUSE, ELAMTHURITHI, KUTTANELLOOR, THRISSUR DISTRICT. BY ADVS. SRI.P.PRIJITH SRI.V.A.JOHNSON RESPONDENT/S:
1 JOSHY, S/O.RAPPAI, PONTHEKKAN HOUSE, EDAKKUNNI, THALOR, THRISSUR. 2 M.J.BABU, S/O.JOSE, MELEPURAM HOUSE, AKARAPATTI, THALOR, THRISSUR. 3 UNITED INDIA INSURANCE COMPANY LTD., PARK HOUSE ROUND NORTH, THRISSUR. 4 TVS CENTURY ASSOCIATES, R4 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 26/08/20109 IN IA.NO.1/2019 IN OP(MAC).51/2019. R1-2 BY ADV. SRI.K.R.ARUN KRISHNAN R1-2 BY ADV. SMT.DEEPA K.RADHAKRISHNAN R3 BY ADV. SRI.T.V.AJAYAKUMAR
THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (MAC).No.51/2019 2

JUDGMENT

Dated this the 29th day of October 2019 The petitioner filed an application to set aside the ex parte award in O.P.(MV) No.2261/2006 on the file of the Motor Accidents Claims Tribunal, Thrissur. Along with the said application, the petitioner also filed a delay condonation application. The Tribunal dismissed the above applications. Challenging these orders, the petitioner has approached this Court.

2. The petitioner received a notice and filed Ext.P2 written statement. However, the petitioner remained ex parte thereafter. Accordingly, the ex parte award was passed. The vehicle had a valid insurance

policy. However, the insurer contended that there was no driving licence. Accordingly, the insurer was directed to pay the compensation amount with liberty to recover it from the owner. The petitioner has a case that the petitioner had transferred the vehicle. Further, the petitioner has a case that the driver had licence as is OP (MAC).No.51/2019 3 evident from the claim petition itself. The petitioner points to the driving licence No.T/173/95 which is valid up to 19.01.2014. The accident occurred on 16.12.2005. It is to be noted that the award has already been satisfied by the insurer. The revenue recovery proceedings are now being initiated against the petitioner.

In such circumstances, this Court is of view that on payment of costs to the insurer, the application for setting aside the ex parte award can be allowed to the extent enable the petitioner to prove transfer of ownership and validity of licence. Accordingly, the OP(MAC) is disposed of. The impugned orders are set aside. The petitioner shall pay a cost of Rs.3,000/-. It shall be paid to the insurer through the counsel appearing before this Court. The receipt shall be produced before the Tribunal. The parties are directed to appear before the Tribunal on 03.12.2019. The petitioner should be given an opportunity to prove the transfer of ownership as well as the licence of the driver. This Court had not interfered

OP (MAC).No.51/2019 4 with the calculation of the compensation. The liability of the petitioner would be subject to the outcome of such decision to be taken by the Tribunal.

Sd/- A.MUHAMED MUSTAQUE JUDGE ln OP (MAC).No.51/2019 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF O.P(MV)N0.2261 OF 2006 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT OF THE PETITIONER IN O.P(MV)NO.2261 0F 206. EXHIBIT P3 A TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND REPRESENTATIVE OF THE 4TH RESPONDENT DATED 26.08.2005. EXHIBIT P4 TRUE COPY OF I.A.NO.170 OF 2013 IN O.P. (MV)NO.2261 OF 2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TRISSUR. EXHIBIT P5 TRUE COPY OF THE AWARD DATED 07.08.2017 IN O.P. (MV)NO.2261 OF 2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL THRISSUR. EXHIBIT P6 TRUE COPY OF I.A.NO.7540 OF 2018 IN O.P. (MV)NO.2261 OF 2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. EXHIBIT P7 TREU COPY OF I.A.NO.7541 OF 2018 IN O.P(MV)NO.2261 OF 2006 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. EXHIBIT P8 TRUE COPY OF THE COMMON ORDER DATED 04.01.2019 IN I.A.NO.7540 OF 2018 AND IA.N0.7541 OF 2018 OF MOTOR ACCIDENTS CLAIMST TRIBUNAL,THRISSUR. EXHIBIT P9 TRUE COPY OF THE E.P.NO.71 OF 2018 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,THRISSUR. RESPONDENTS EXHIBITS:NIL. //TRUE COPY// P.A.TO JUDGE

Same Court & Year Kerala · 2019 Same Parties M.P.Pailoth vs JOSHY Same Judge Honourable Mr. Justice a.Muhamed Mustaque