Partly allowed

Fawas Shameem v. Sathyavathy

Kerala HC23 Aug 2016OP (MAC)/89/2016

Case brief

AI extract

What is this about?

The High Court of Kerala, supervising the Motor Accidents Claims Tribunal, set aside an order dismissing the petitioner's application to condone delay and set aside an ex parte award. The Court directed the tribunal to allow the petitioner to contest the proceedings on merits regarding policy repudiation, conditioned on remitting 50% of the award and limiting the exercise to three months.

What did the court decide?

The order setting aside the ex parte award dismissal was set aside and the petitioner was directed to file a written statement to contest the proceedings.

Fawas Shameem Vs Sathyavathy — Motor Accident Claims | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938

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OP (MAC).No. 89 of 2016 (O)

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--------------------------------------------

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I.A.NOS. 6467/2015 AND 6468/2015 IN O.P(MV)NO. 484/2001 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE

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PETITIONER(S) :

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FAWAS SHAMEEM,

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AGED 35 YEARS, S/O.T.P. KOYA, THODUPOYIL HOUSE, UNNIKULAM P.O, THAMARASSERY, KOZHKODE-679 328.

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BY ADV. SRI.T.SHIHABUDHEEN

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RESPONDENT(S) :

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1. SATYAVATHI, W/O. KRISHNAN NAIR, AMBAPAKKIL HOUSE, P.O. KAKKODI VIA, MOOTTOLI, KOZHIKODE-673 611.

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2. THE NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, TRIPURI BUILDINGS, EAST NADAKKAVU, KOZHIKODE- 673 006.

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R2 BY ADV. SRI.A.A.ZIYAD RAHMAN

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THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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OP (MAC).No. 89 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: TRUE COPY OF THE REGISTRATION PARTICULARS.

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EXHIBIT P2: TRUE COPY OF THE DRIVING LICENCE PARTICULARS.

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EXHIBIT P3: TRUE COPY OF THE EX-PARTE AWARD DATED 31.12.2007 IN O.P.(MV)NO.484/2001.

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EXHIBIT P4: TRUE COPY OF THE I.A.NO. 6467/2015. EXHIBIT P5: TRUE COPIES OF THE I.A.NO. 6468/2015. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 21.03.2016.

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EXHIBIT P7: TRUE COPY OF THE I.A.NO. 2781/2014 DATED 25.05.2014.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

SHAJI P. CHALY, J

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O.P.(MAC)NO.89 OF 2016

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Dated this the 23^rd day of August, 2016

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J U D G M E N T

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Petitioner is the second respondent in OP(MV). No.484/2001 on the files of the First Additional Motor Accidents Claims Tribunal, Kozhikode. Petitioner is suffered with Ext.P3 award. According to the petitioner Ext.P3 is an ex parte award without taking note of the license held by the driver of the offending vehicle, owned by the petitioner during the time of accident. Anyhow, as per Ext.P3 award, the Insurance Company was directed to remit the amount before the court with a rider to seek indemnification against the petitioner. The Insurance Company complied with the direction and thereafter filed application seeking execution petition in terms of the award. According to the petitioner, it is thereupon that petitioner came to know about the award and the liability fastened on the petitioner. Accordingly petitioner submitted

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O.P.(MAC)NO.89 OF 2016 2

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Exts.P5 and P6 applications seeking to condone the delay and set aside the ex parte award. After considering the applications, the Tribunal dismissed the application to condone the delay of nearly 3000 days, and consequentially dismissed the application to set aside the award. It is thus aggrieved by Ext.P6 order, petitioner has approached this court invoking the supervisory jurisdiction under Article 227 of the Constitution of India.

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Heard learned counsel for the petitioner and learned standing counsel appearing for the Insurance Company. According to the learned counsel, evident from Ext.P2 driver was having license at the time of accident. The said issue was not considered by the Tribunal when the application to set aside the award was filed. However from the order, I find that the Tribunal was not impressed by the explanation offered by the petitioner to condone the delay and accordingly the delay petition was dismissed and, the dismissal of the petition to set aside the award was only a

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O.P.(MAC)NO.89 OF 2016

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consequential one without looking into the merits of the matter. True the delay is enpardonable but since the petitioner has a case that, the liability was initiated on the petitioner, for want of license the driver and since the petitioner has a care that, driver was having on the date of accident, I think it is only proper to grant an opportunity to the petitioner to contest the proceedings. Moreover, the claimant is in no way affected since the award amount is deposited by the insurer before the Tribunal. However since larger interest of justice demands consideration of every matter on merits, I am of the considered opinion that an opportunity can be provided to the petitioner to contest the proceedings, however by incorporating strict stipulations/conditions with respect to the conduct of the proceedings. Therefore Ext.P6 order passed by the Tribunal is set aside, and direct the Tribunal to permit the petitioner to file a written statement and contest the proceedings in accordance with law, on condition that petitioner

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O.P.(MAC)NO.89 OF 2016

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remits 50% of the award amount inclusive of the interest within three weeks from the date of receipt of a copy of this judgment. The Tribunal is also directed to complete the whole exercise within three months from the date of receipt of a copy of this judgment. The Tribunal is at liberty to fix a time table with respect to the filing of the written statement and other consequential proceedings. Petitioner and the respondents are directed to appear before the Tribunal on 09.09.2016 to enable the Tribunal to carry on with the proceedings as directed above. Needless to say, if any of the conditions stipulated above are violated, this original petition will stand dismissed. Tribunal will also be at liberty to verify whether any notice at all is required to the claimant, since the question remains to be adjudicated is only with respect of the repudiation of the policy for want of a current licence, to the driver of the offending vehicle, a question to be thrashed out by the petitioner, the driver and the insurance company.

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O.P.(MAC)NO.89 OF 2016

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Original Petition is disposed of accordingly.

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sd/-

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SHAJI P. CHALY, JUDGE

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R.AV

Fawas Shameem v. Sathyavathy

Case brief

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Fawas Shameem v. Sathyavathy

Case brief

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