Resmy Sally Koshy @ Resmy Vs. the Managing Director, Mercy College of Nursing - Court Judgment

SooperKanoon Citationsooperkanoon.com/1126919
CourtKerala High Court
Decided OnFeb-05-2014
JudgeHONOURABLE MR.JUSTICE K.VINOD CHANDRAN
AppellantResmy Sally Koshy @ Resmy
RespondentThe Managing Director, Mercy College of Nursing
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice k.vinod chandran wednesday, the5h day of february201416th magha, 1935 op (mac).no. 16 of 2014 (o) ---------------------------- ia no. 5253/2013 of motor accidents claims tribunal, thiruvananthapuram dated2011-2013 ....... petitioner(s): -------------------------- resmy sally koshy @ resmy, aged28years, d/o. billymol thomas, thykadavil, tc22438, pattom po, thiruvananthapuram - 695 024. by advs.sri.j.robinson sri.r.t.pradeep respondent(s): ---------------------------- 1. the managing director, mercy college of nursing, valakom, kottarakkara, kollam - 691 506.2. g.babu, s/o.george, kochukunnathu puthenveedu, thalachira, kottarakkara, kollam - 691 506.3. the divisional manager, national insurance co.ltd., st.joseph's press building, vazhuthacaud, thiruvananthapuram - 695 014.4. the manager, royal sundaram alliance insurance co.ltd., d1,ii floor, amritha towers, kpcc junction, opp.maharaja grounds, m.g.road, kochi -682 011. r3 by adv. sri.m.a.george r4 by adv. sri.p.jacob mathew this op (mac) having come up for admission on0502-2014, the court on the same day delivered the following: kss op(mac)no.16/2014 (o) appendix petitioner's exhibits: exhibit p1: copy of unnumbered op(mv) dtd. 11/10/2013 before mact, thiruvananthapuram. exhibit p2: copy of ia no.5253/2013 dtd. 11/10/2013. exhibit p3: copy of order dtd. 20/11/2013 in i.a.no.5253/2013 by mact, thiruvananthapuram. respondent's exhibits: n i l /true copy/ p.a.to judge kss k. vinod chandran, j.===================== o.p.(m.a.c)no. 16 of 2014 ====================== dated this the 05th day of february,2014 judgment the petitioner challenges ext. p3 order of the tribunal by which the exemption sought for by the petitioner from payment of court fees prescribed under sub rule(1) of rule 397 of the kerala motor vehicle rules, 1989, as per sub rule(2) was declined. the learned counsel for the petitioner would contend that the order of rejection would go against the dictum laid down by this court in suma v. rajesh [2013 acj990 and in any event, the averments in the petition would disclose sufficient reasons which ought to have been looked into by the tribunal before exercising its discretion under sub rule(2) of rule 397 of the rules.2. on a reading of suma (supra) it cannot be said that this court had laid down the law that on an application being filed for exemption, the same should always be allowed by the tribunals. what has been specifically noticed is that, the discretion conferred on the tribunal under rule (2) does not o.p.(m.a.c)no. 16 of 2014 2 make it incumbent upon the tribunal to conduct a roving enquiry, as to whether the petitioner is capable of paying the court fees or not; as is the mandate under the code of civil procedure. considering the aspect that the exemption granted is not a total waiver and that in any event, the amounts awarded would be deducted, to the extent of the court fees and only the balance would be eventually disbursed; the court found that the tribunal ought to have allowed the application on the facts disclosed in the said case.3. the facts disclosed in the aforesaid decision is that, the parents, wife and children of a person who succumbed to injuries in a motor accident was before the court claiming compensation for the death of the only breadwinner of the family. the specific averment made by the claimants in the claim petition itself was that the claimants were wholly dependant upon the deceased for their livelihood and that the death of the only breadwinner of the family has caused financial crisis. there was also specific averment to the effect that the claimants were not employed and do not own any property, generating income and it is in such circumstance that, this o.p.(m.a.c)no. 16 of 2014 3 court directed the claimants therein to be granted exemption from payment of court fees.4. in the instant case, the petitioner has filed a claim petition as is disclosed from ext. p1. the petitioner is said to be employed as an assistant professor in st. john's college, anchal, the petitioner has declared her monthly income to be rs. 60,000/-. however, on affidavit, the petitioner claims that the petitioner is unable to do any work and that she has no income. on the specific contentions made in the application, the tribunal found that the petitioner could not be exempted from paying court fees. going by the specific averments in the complaint, this court is not persuaded to hold that the refusal to exercise discretion in favour of the petitioner, by the tribunal, in ext. p3, is improper. the original petition is dismissed. sd/- k. vinod chandran, judge sb
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE5H DAY OF FEBRUARY201416TH MAGHA, 1935 OP (MAC).No. 16 of 2014 (O) ---------------------------- IA NO. 5253/2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM DATED2011-2013 ....... PETITIONER(S): -------------------------- RESMY SALLY KOSHY @ RESMY, AGED28YEARS, D/O. BILLYMOL THOMAS, THYKADAVIL, TC22438, PATTOM PO, THIRUVANANTHAPURAM - 695 024. BY ADVS.SRI.J.ROBINSON SRI.R.T.PRADEEP RESPONDENT(S): ---------------------------- 1. THE MANAGING DIRECTOR, MERCY COLLEGE OF NURSING, VALAKOM, KOTTARAKKARA, KOLLAM - 691 506.

2. G.BABU, S/O.GEORGE, KOCHUKUNNATHU PUTHENVEEDU, THALACHIRA, KOTTARAKKARA, KOLLAM - 691 506.

3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., ST.JOSEPH'S PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014.

4. THE MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD., D1,II FLOOR, AMRITHA TOWERS, KPCC JUNCTION, OPP.MAHARAJA GROUNDS, M.G.ROAD, KOCHI -682 011. R3 BY ADV. SRI.M.A.GEORGE R4 BY ADV. SRI.P.JACOB MATHEW THIS OP (MAC) HAVING COME UP FOR ADMISSION ON0502-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(MAC)NO.16/2014 (O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: COPY OF UNNUMBERED OP(MV) DTD. 11/10/2013 BEFORE MACT, THIRUVANANTHAPURAM. EXHIBIT P2: COPY OF IA NO.5253/2013 DTD. 11/10/2013. EXHIBIT P3: COPY OF ORDER

DTD. 20/11/2013 IN I.A.NO.5253/2013 BY MACT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss K. VINOD CHANDRAN, J.

===================== O.P.(M.A.C)No. 16 of 2014 ====================== Dated this the 05th day of February,2014

JUDGMENT

The petitioner challenges Ext. P3 order of the Tribunal by which the exemption sought for by the petitioner from payment of court fees prescribed under sub Rule(1) of Rule 397 of the Kerala Motor Vehicle Rules, 1989, as per sub Rule(2) was declined. The learned counsel for the petitioner would contend that the order of rejection would go against the dictum laid down by this Court in Suma v. Rajesh [2013 ACJ990 and in any event, the averments in the petition would disclose sufficient reasons which ought to have been looked into by the Tribunal before exercising its discretion under sub Rule(2) of Rule 397 of the Rules.

2. On a reading of Suma (supra) it cannot be said that this Court had laid down the law that on an application being filed for exemption, the same should always be allowed by the Tribunals. What has been specifically noticed is that, the discretion conferred on the Tribunal under Rule (2) does not O.P.(M.A.C)No. 16 of 2014 2 make it incumbent upon the Tribunal to conduct a roving enquiry, as to whether the petitioner is capable of paying the court fees or not; as is the mandate under the Code of Civil Procedure. Considering the aspect that the exemption granted is not a total waiver and that in any event, the amounts awarded would be deducted, to the extent of the court fees and only the balance would be eventually disbursed; the Court found that the Tribunal ought to have allowed the application on the facts disclosed in the said case.

3. The facts disclosed in the aforesaid decision is that, the parents, wife and children of a person who succumbed to injuries in a motor accident was before the Court claiming compensation for the death of the only breadwinner of the family. The specific averment made by the claimants in the Claim petition itself was that the claimants were wholly dependant upon the deceased for their livelihood and that the death of the only breadwinner of the family has caused financial crisis. There was also specific averment to the effect that the claimants were not employed and do not own any property, generating income and it is in such circumstance that, this O.P.(M.A.C)No. 16 of 2014 3 Court directed the claimants therein to be granted exemption from payment of court fees.

4. In the instant case, the petitioner has filed a Claim Petition as is disclosed from Ext. P1. The petitioner is said to be employed as an Assistant Professor in St. John's College, Anchal, the petitioner has declared her monthly income to be Rs. 60,000/-. However, on affidavit, the petitioner claims that the petitioner is unable to do any work and that she has no income. On the specific contentions made in the application, the Tribunal found that the petitioner could not be exempted from paying court fees. Going by the specific averments in the complaint, this Court is not persuaded to hold that the refusal to exercise discretion in favour of the petitioner, by the Tribunal, in Ext. P3, is improper. The Original Petition is dismissed. Sd/- K. VINOD CHANDRAN, JUDGE SB