Partly allowed

Dennyson N.G v. New India Insurance Company

Kerala HC12 Mar 2019OP (MAC)/7/2019

Case brief

AI extract

What is this about?

The High Court set aside the Tribunal orders dismissing the petitioner's applications for set aside of an ex-parte motor accident award and condonation of delay, allowing the petitioner to contest liability on merits. Petitioner must pay Rs.5,000 cost.

What did the court decide?

Ex-parte orders set aside; petitioner granted opportunity to contest liability; petitioner directed to pay Rs.5,000 cost to insurer; recovery proceedings stayed.

Dennyson N.G Vs New India Insurance Company — Motor Accident Claims | Kerala HC (2019)

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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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TUESDAY,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940

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OP (MAC).No. 7 of 2019

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AGAINST THE ORDER DATED 19.09.2016 IN I.A.NOS.7830 OF 2015 & 7831 OF 2015 IN OP(MV) NO.1458/2013 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM.

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PETITIONER:

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DENNYSON N.G, AGED 51 YEARS,S/O. GEORGE, NEDUMPARAMBIL HOUSE, KONTHURUTHY, THEVARA, ERNAKULAM-682 013

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BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER

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RESPONDENTS:

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1 NEW INDIA INSURANCE COMPANY, ERNAKULAM REGIONAL OFFICE, 36/707, KANDAMKULATHY TOWER, PB NO.1049, KOCHI-682 011

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2 THE DEPUTY TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM, KOCHI-682 011

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3 THE VILLAGE OFFICER, VILLAGE OFFICE, ELAMKULAM, KOCHI-682 020

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BY ADV.SRI.M.JACOB MURICKAN SRI.ZIYAD REHMAN,STANDING COUNSEL SRI.MANU RAJ K.J., GOVERNMENT PLEADER

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THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP (MAC).No. 7 of 2019

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JUDGMENT

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The petitioner is the 1^st respondent in O.P.(MV) No.1458 of 2013 on the file of the Motor Accidents Claims Tribunal, Ernakulam, which is a claim petition filed by one Sarath, who sustained injuries in a motor accident, which occurred on 13.02.2013, involving a motor cycle bearing registration No.KL-07/AP-6455. The petitioner, being the owner cum rider of that vehicle was arrayed as the 1^st respondent in that claim petition. The Tribunal passed Ext.P1 common award in O.P.(MV) No.1013 of 2013 arising out of the very same accident and O.P.(MV) No.1458 of 2013. On a finding that, at the time of accident, the petitioner was not holding a valid driving licence, the 1^st respondent Insurer was granted recovery right. After paying the award amount to the claimant, the 1^st respondent insurer moved the Tribunal for initiating revenue recovery proceedings against the petitioner. Based on the orders passed by the Tribunal, invoking its powers under Section 174 of the Motor Vehicles Act, the 2^nd respondent has issued

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OP (MAC).No. 7 of 2019

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Ext.P7 demand notice dated 11.01.2018. Coming to know about Ext.P1 ex-parte award, the petitioner filed I.A.Nos.7830 and 7831 of 2015 in O.P.(MV) No.1458 of 2013 seeking an order to set aside the said award and also to condone the delay of 319 days in filing the former application. Those applications ended in dismissal by Exts.P5 and P6 orders, since there was no representation for the petitioner and no records were produced for satisfying the reason for delay.

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Feeling aggrieved by Exts.P5 and P6 orders, the petitioner has moved this original petition under Article 227 of the Constitution of India, seeking an order to set aside the aforesaid orders and a declaration that the 1^st respondent is not entitled to recover the amount awarded in O.P.(MV) No.1458 of 2013 from the petitioner, as he had not violated any policy condition in view of Ext.P4 driving licence. The petitioner has also sought for an order directing the Tribunal to permit him to contest O.P.(MV) No.1458 of 2013 on merits, regarding the liability to pay the amount,

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OP (MAC).No. 7 of 2019

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by allowing I.A.Nos.7830 and 7831 of 2015, and also an order directing respondents 2 and 3 to keep in abeyance all recovery proceedings against the petitioner pursuant to Ext.P7 demand notice.

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On 16.01.2019, when this original petition came up for admission, the learned Standing Counsel for the 1^st respondent Insurer sought time to get instructions. While listing the original petition to 30.01.2019, this Court has ordered that any recovery pursuant to Ext.P7 demand notice shall be deferred for a period of one month.

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On 30.01.2019, when this original petition came up for consideration, the learned Standing Counsel for the 1^st respondent Insurer sought time to get instructions on the driving licence particulars of the petitioner, produced as Ext.P4.

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Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1^st respondent Insurer and also the learned Government Pleader appearing for respondents 2 and 3.

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OP (MAC).No. 7 of 2019

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The sole issue that arises for consideration in this

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original petition is as to whether any interference is warranted on Exts.P5 and P6 orders passed by the Tribunal, whereby I.A.Nos.7830 and 7831 of 2015 in O.P.(MV) No.1458 of 2013 filed by the petitioner stand dismissed.

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Admittedly, Ext.P1 award passed by the Tribunal in O.P.(MV) No.1458 of 2013 is an ex-parte award. In the absence of any reliable materials, the Tribunal in Ext.P1 award granted recovery right to the 1^st respondent Insurer, on a finding that, at the time of accident, the petitioner was not having a valid driving licence. Now the contention of the learned counsel for the petitioner is that, despite producing Ext.P4 driving licence, the Tribunal has passed Exts.P5 and P6 orders.

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Having considered the submissions made by the learned counsel on both sides, this Court finds that an opportunity can be granted to the petitioner to contest the matter on merits, in so far as the recovery right granted to

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the 1^st respondent Insurer is concerned; however, on

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OP (MAC).No. 7 of 2019

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payment of a cost.

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In such circumstances, this original petition is disposed

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of by setting aside Exts.P5 and P6 orders, on payment of a cost of Rs.5,000/- by the petitioner payable to the 1^st respondent Insurer. Such payment to the Insurer has to be made, within two weeks from the date of receipt of a certified copy of this judgment and a memo to that effect shall also be filed before the Tribunal. On such payment being made, the Tribunal shall allow I.A.No.7831 of 2015 in O.P.(MV) No.1458 of 2013 thereby condoning the delay in filing I.A.No.7830 of 2015. Thereafter, the Tribunal shall reconsider I.A.No.7830 of 2015, after affording both sides a reasonable opportunity to raise appropriate contention, and pass appropriate orders expeditiously.

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Sd/-

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ANIL K. NARENDRAN JUDGE

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bpr

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OP (MAC).No. 7 of 2019

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1 TRUE COPY OF AWARD DATED 29/11/2014 IN O.P.(MV) NO.1458/2013 OF MACT, ERNAKULAM.
EXHIBIT	P2 TRUE COPY OF IA NO.7830/15 IN O.P.(MV) NO.1458/13 FILED BY PETITIONER.
EXHIBIT	P3 TRUE COPY OF IA NO.7831/15 IN O.P.(MV) NO.1458/13 FILED BY PETITIONER.
EXHIBIT	P4 TRUE COPY OF PETITIONER'S DRIVING LICENSE ALONG WITH DETAILS ISSUED FROM ANDHRA PRADESH TRANSPORT DEPARTMENT.
EXHIBIT	P5 TRUE COPY OF ORDER DATED 19/9/16 IN IA NO.7830/15 IN OP(MV) NO.1458/13.
EXHIBIT	P6 TRUE COPY OF ORDER DATED 19/9/16 IN IA NO.7831/15 IN O.P.(MV) NO.1458/13.
EXHIBIT	P7 TRUE COPY OF DEMAND NOTICE DATED 11/1/2018 ISSUED BY 2ND RESPONDENT IN PURSUANT TO AWARD IN OP(MV) NO.1458/2013.
EXHIBIT	P8 TRUE COPY OF JUDGMENT DATED 4/4/2018 IN OP(MAC) NO.44/2018.
EXHIBIT	P9 CERTIFIED COPY OF AWARD DATED 29/11/2014 IN O.P.(MV)NO.1458/2013 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM.
EXHIBIT	P10 CERTIFIED COPY OF ORDER DATED 19/9/2016 IN I.A.NO.7830/2015 IN O.P(MV)NO.1458/2013.
EXHIBIT	P11 CERTIFIED COPY OF ORDER DATED 19/9/2016 IN I.A.NO.7831/2015 IN O.P. (MV)NO.1458/2013.
RESPOND	ENTS' EXHIBITS: NIL

Dennyson N.G v. New India Insurance Company

Case brief

What is this about?

What did the court decide?

Dennyson N.G v. New India Insurance Company

Case brief

What is this about?

What did the court decide?

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