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Liya Nasrin M v. Dr. Govindababu

Kerala HC7 Nov 2018OP (MAC)/106/2018

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a writ petition filed by a minor accident claimant. The Court set aside an order of the Motor Accidents Claims Tribunal that had dismissed an insurer's application for medical reassessment solely on counsel's affidavit without providing a proper affidavit, as this violated procedural requirements for such applications.

What did the court decide?

Setting aside the order dated 17.07.2018 in I.A. No.2943/2018 passed by the Motor Accidents Claims Tribunal, Tirur.

Liya Nasrin M Vs Dr. Govindababu — 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 ANIL K.NARENDRAN

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WEDNESDAY, THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940

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OP (MAC).No. 106 of 2018

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AGAINST THE ORDER/JUDGMENT IN IA NO.2943/2018 IN OP(MV)NO.284/2016 of M.A.C.T. TIRUR DATED 17-07-2018

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PETITIONER/RESPONDENT/APPLICANT:

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LIYA NASRIN M., AGED 12 YEARS (MINOR), REPRESENTED BY GUARDIAN, MOTHER - SUMAYYA BEEGAM, AGED 45 YEARS,

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W/O BADHARUDHEEN, MAROLIYIL HOUSE, PALLIKUNNU, CHIYANUR, P.O. KOKKUR - 679 591

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BY ADVS. SMT.N. DEEPA SRI.M.V.BALAGOPAL

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RESPONDENT/PETITIONER/RESPONDENTS:

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1 DR. GOVINDABABU, AGED 54 YEARS, S/O ACHUTHAN WARIER, CHAITHANYAM, THUNCHAN NAGAR P.O., TIRUR, PIN 676 101

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2 THE ORIENTAL INSURANCE CO.LTD, C.K.H.BUILDING, THAZHEPALAM, PONNANI ROAD, TIRUR-676 101.

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BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN

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THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 07.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

OP(MAC)106 OF 2018

JUDGMENT

The petitioner, who is a minor, represented by her mother and guardian, is the claimant in O.P.(MV)No.284 of 2016 on the file of the Motor Accident Claims Tribunal, Tirur. The petitioner has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P5 order dated 17.07.2018 in I.A. No.2943 of 2018 in O.P.(MV)No.284 of 2016. The petitioner has also sought for an order to stay all further proceedings pursuant to Ext.P5 order.

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On 17.09.2018, when this original petition came up for admission, urgent notice on admission by speed post was ordered to the 1^st respondent. The learned Standing Counsel for the 2^nd respondent Insurance Company took notice on admission. The registry was directed to get a report from the Motor Accidents Claims Tribunal, Tirur as to whether I.A.No.2943 of 2018 in O.P. (MV)No.284 of 2016 filed by the 2^nd respondent Insurer, was one supported by an affidavit sworn to by its counsel and also whether an opportunity was given to the claimant to submit objection to the said application.

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OP(MAC)106 OF 2018 3

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Pursuant to the said order, a report dated 27.09.2018 is received from the Tribunal, wherein it has been stated that I.A.No.2943 of 2018 is one supported by the affidavit of the counsel appearing for the 2^nd respondent Insurance Company. In the said report, it has also been stated that, no request was made for filing objection to I.A.No.2943 of 2018 and the only submission made by the learned counsel for the claimant was that Ext.P3 Disability Certificate issued by the District Medical Board, Tirur is correct. The minor claimant did not appear on or before 28.07.2018 in terms of Ext.P5 order dated 17.07.2018.

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4. In Abdul Kareem v. State of Kerala [2006 (2) KLT

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408] , this Court held that, any application filed under Order XLI, Rule 3A of the Code of Civil Procedure, 1908 for condonation of delay, when delay has occurred only because there was misplacing of file by the counsel, the application filed with an affidavit of the counsel is sufficient.

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5. In Balakrishnan v. Geetha N.G.[2015 (1) KHC

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775] , in the context of Order IX, Rule 9 of the Code of Civil Procedure, 1908, a Division Bench of this Court held that, in a suit dismissed for default, an application filed by the Advocate for

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OP(MAC)106 OF 2018 4

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restoration, supported by his affidavit, is legally permissible.

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The principle laid down in the decisions referred to supra can be extended when an application for restoration is filed in a claim petition or an interlocutory application filed in that claim petition, which is dismissed for default, or when an application for condonation of delay is filed along with such applications, when the delay has occurred only because there was some latches on the part of the Advocate. However, when an interlocutory application is filed, seeking an order to refer the claimant to the Appellate Medical Board in order to re-assess the disability assessed by the District Medical Board, such an application has to be supported by an affidavit sworn to by an authorised officer of the insurer. When such application is at the instance of either the owner or driver of the offending vehicle, the application has to be supported by an affidavit of such person. In that view of the mat ter, I find absolutely no reason to sustain Ext.P5 order dated 17.07.2018 of the Motor Accident Claims Tribunal, Tirur in I.A.No.2943 of 2018 in O.P.(MV)No.284 of 2016.

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In the result, this original petition is disposed of by

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OP(MAC)106 OF 2018 5

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setting aside Ext.P5 order dated 17.07.2018 in I.A.No.2943 of 2018 in O.P.(MV)No.284 of 2016.

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It is made clear that this judgment will not stand in the way of the 2^nd respondent Insurance Company filing a proper application to refer the claimant in O.P.(MV)No.284 of 2016 to the Medical Board at the Government Medical College Hospital, Kozhikode for reassessment of her disability and the Tribunal considering such application and passing appropriate orders thereon, after affording the claimant an opportunity to file objections.

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Sd/- ANIL K. NARENDRAN JUDGE

OP(MAC)106 OF 2018

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PETITION OP(MV) NO.284/2016 DATED 09.4.2016 FILED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT IN OP(MV) NO.284/2016,DATED 20.6.2016 EXHIBIT P3 TRUE COPY OF THE REPORT OF THE MEDICAL BOARD, DATED 17.4.2018. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 16.7.2018 FILED BY THE 2ND RESPONDENT'S COUNSEL IN OP(MV)NO.284/2016.

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EXHIBIT P5 TRUE CERTIFIED COPY OF THE ORDER IN IA.NO.2943/2018 IN OP(MV) NO.284/2016 DATED 17.7.2018.

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RESPONDENTS' EXHIBITS: NIL

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TRUE COPY

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P.A. TO JUDGE

Liya Nasrin M v. Dr. Govindababu

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Liya Nasrin M v. Dr. Govindababu

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