Dismissed

Rosamma & Others v. Eliyamma & Others

Kerala HC10 Oct 2018MACA/1967/2006

Case brief

AI extract

What is this about?

Appeal against Motor Accident Claims Tribunal award challenging non-suit of supplemental petitioners. High Court dismissed the appeal because appellants failed to prove lapse of process charges and fee for condoning delay, negating any question of quantum or entitlement.

What did the court decide?

C.M. Application to condone delay dismissed. Appeal dismissed as a natural consequence.

Rosamma & Others Vs Eliyamma & Others — Motor Accident Claims | Kerala HC (2018)

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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 P.R.RAMACHANDRA MENON

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WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940

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MACA.No. 1967 of 2006

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AGAINST THE AWARD IN OPMV 925/1997 of M.A.C.T., THALASSERY DATED 17-11-2003

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APPELLANTS/SUPPLEMENTAL PETITIONERS 8 TO 11 :

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1 ROSAMMA ,W/O. LATE CHACKO, RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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2 ELY, D/O.LATE CHACKO RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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3 GEORGE, S/O.LATE CHACKO RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM, KANNUR DISTRICT.

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4 THOMAS, S/O.LATE CHACKO RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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BY ADV. SRI.SURESH KUMAR KODOTH

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RESPONDENTS/PETITIONERS 1 TO 7 & RESPONDENTS 1 TO 3 :

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1 ELIYAMMA , W/O. LATE THOMAS, RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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M.A.C.A.No.1967 OF 2006 & C.M. Application No.2063 of 2006

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2 MICLE, S/O.LATE THOMAS RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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3 THOMAS , S/O.LATE THOMAS RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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4 JOSEPH, S/O.LATE THOMAS RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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5 MARIYAKUTTY, D/O.LATE THOMAS RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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6 V.T.JOSE, S/O.LATE THOMAS RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,, KANNUR DISTRICT.

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7 ANTONY, S/O.LATE THOMAS RESIDING AT VADAKKAM VEETTIL HOUSE,, PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM,

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8 P.A.SHAJIMON, S/O.AUGUSTINE PARAMPUZHAYIL HOUSE, CHANDANAKKAMPARA P.O.,, PAYYAVOOR.

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9 KOYIKKAL THANKACHAN, S/O.JOSEPH PAISAKKARI P.O., PAYYAVOOR AMSOM DESOM.

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10 THE ORIENTAL INSURANCE COMPANY LTD. TALIPARAMBA.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.1967 OF 2006 & C.M. Application No.2063 of 2006

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J U D G M E N T

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The non-suiting of the appellants, who were added

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on as supplemental petitioners 8 to 11, holding that

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they are not eligible to get any part of the compensation awarded by the Tribunal in respect of the death of a person aged 75 years, pursuant to the accident occurred on 12.05.1996, is subjected to challenge in this appeal.

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Heard the learned counsel for the appellants.

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The sum and substance of the case projected

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before this Court is that, on 12.05.1996, a person by

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name Thomas aged 75 years, while walking along the

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side of the road was knocked down by a jeep owned, driven and insured by the respondents 1 to 3 respectively. A claim petition was filed by the respondents 1 to 7 herein, who are stated as the legal heirs, being the widow and children of the deceased

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Thomas. The appellants herein got impleaded as

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M.A.C.A.No.1967 OF 2006 & C.M. Application No.2063 of 2006

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'supplemental petitioners 8 to 11' as per the order

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dated 27.11.2002 in I.A.No.4125 of 2001, stating that they are the wife and children of the deceased son (Chacko) of the deceased Thomas (in respect of whose death, the claim petition was preferred). How the appellants could get themselves impleaded as 'additional claimants', instead of as additional respondents has been doubted by the Tribunal itself in the first paragraph of the award.

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Based on the evidence adduced before the

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Tribunal, a finding was rendered to the effect that the accident was only because of the negligence on the part of the driver of the jeep. The Tribunal awarded amounts under different heads, granting a total compensation of Rs.91700/-, which was directed to be satisfied with interest as specified, mulcting the liability upon the respondent Insurance Company. A finding was rendered

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to the effect that the appellants herein had not established their relationship with the deceased son of

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M.A.C.A.No.1967 OF 2006 & C.M. Application No.2063 of 2006

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the late Thomas and hence no compensation was ordered

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to be given to the appellants, which in turn is under challenge in this appeal.

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The appeal was belated by 898 days, which was sought to be condoned by filing C.M.Application.2063 of 2006, wherein notice was ordered on 28..11.2006. No process charges were remitted for nearly 10 years and finally, one more chance was given by this Court as per order dated 09.03.2016, subject to payment of cost of Rs.500/-, making it clear that, if at all the delay gets condoned and the appellants succeed in getting any compensation, the same will not carry interest for the period from 28.11.2016 till the date of remittance of process charges. The matter is listed today, pointing out that the service is not complete and no steps have been taken to cure the defect. Though the learned counsel for the appellants made a submission that process charges were remitted on the day before yesterday, with Court Fee No.12921, the matter was got

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M.A.C.A.No.1967 OF 2006 & C.M. Application No.2063 of 2006

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verified with the Registry, when it is revealed that no process charges have been remitted so far. So also, the learned counsel for the appellants could not produce the proof of payment of cost of Rs.500/- ordered by this Court on 09.03.2016 while granting three days' time to remit the process charges earlier. This being the position, it appears that the appellants have lost interest in the cause of action projected in this appeal.

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That apart, it remains a fact that no evidence was adduced by the appellants before the Tribunal to establish their relationship with the deceased Chacko. The discussion made by the Tribunal in paragraph 7 with regard to the second issue (as to who are entitled to get compensation and what is the amount of compensation payable) is as follows:

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”7. Issue No.2:

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The petition for compensation was originally filed by the petitioners 1 to 7 who claim to be the wife and major children of deceased Thomas Chacko. Later

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M.A.C.A.No.1967 OF 2006 & C.M. Application No.2063 of 2006

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some other persons filed an application to get impleaded as suppl.petitioners saying that they are the wife and children of deceased Thomas Chacko and they are entitled to get compensation. PW1 has given evidence substantiating the case of the petitioners. It is pertinent to note that PW1 was not cross-examined by the counsel for the rival claimants and the suppl.petitioners 8 to 11 did not care to adduce any evidence to substantiate their claim for compensation. There is absolutely no evidence to show that the suppl.petitioners are the wife and children of deceased Thomas Chacko. They did not produce Legal heirship certificate and they did not adduce any evidence to substantiate their case that they are the legal heirs of deceased Thomas Chacko. After getting impleaded in the proceedings as suppl.petitioners, they kept mum and they did not care to adduce any evidence to prove their case. In these circumstances, this Court finds that the supplemental petitioners are not entitled to get compensation in this case and that the petitioners 1 to 7 who filed

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M.A.C.A.No.1967 OF 2006 & C.M. Application No.2063 of 2006

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the petition originally are entiteld to get the compensation.”

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In the above circumstance, this Court is of the view that it is not a fit case where any interference is possible. The C.M.Application to condone the delay is dismissed. As a natural consequence, the appeal as well.

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Sd/- P.R. RAMACHANDRA MENON, JUDGE

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/true copy/

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P.S TO JUDGE.

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Rosamma & Others v. Eliyamma & Others

Case brief

What is this about?

What did the court decide?

Rosamma & Others v. Eliyamma & Others

Case brief

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