Allowed

Mary Joseph v. Thankappan Nair and Others

Kerala HC17 Sept 2021MACA/2392/2009

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by the owner of a motor cycle against an order of the Motor Accidents Claims Tribunal. The Court set aside the Tribunal's award because it disposed of the matter without issuing fresh notices to the parties after a remand by this Court, thereby denying the appellant a fair opportunity to adduce evidence.

What did the court decide?

Impugned award set aside; matter remanded to Tribunal for re-examination; parties directed to appear on 25.10.2021.

Mary Joseph Vs Thankappan Nair and Others — Motor Accident Claims | Kerala HC (2021)

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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 C.S.DIAS

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FRIDAY, THE 17^TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943

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MACA NO. 2392 OF 2009

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AGAINST THE JUDGMENT IN OPMV 1474/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM

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APPELLANT/2nd RESPONDENT:

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MARY JOSEPH, W/O.JOSEPH, THALIYAN HOUSE, KURICHILAKKODE KARA, KODANAD.P.O.

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BY ADV SRI.P.RAMAKRISHNAN

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RESPONDENTS:

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1 THANKAPPAN NAIR, S/O.NARAYANAN NAIR,

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KAKKATHUKUDY HOUSE, KURICHILAKODE KARA, KODANAD.

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2 SHIBU JOSEPH, SON OF JOSEPH, THALIYAN HOUSE, KURICHILAKKODE KARA, KODANAD.P.O.

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3 THE NEW INDIA ASSURANCE CO. LTD. PERUMBAVOOR.

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BY ADVS.

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SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.V.RAJENDRAN PERUMBAVOOR SMT.RAJI T.BHASKAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR

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ADMISSION ON 17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 2392 OF 2009

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JUDGMENT

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The appellant was the 2^nd respondent in O.P(MV) No.1474/1998 of the Motor Accidents Claims Tribunal, Perumbavoor. The 1^st respondent in the appeal was the petitioner and the respondents 2 and 3 in the appeal were the respondents 1 and 3 before the Tribunal. The parties are for the sake of convenience, referred to as per the status before the Tribunal.

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The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 8.7.1997. It was his case that when he reached the Kurichilakkodu Junction, a Motor Cycle bearing registration No.KL-7/J-3597, driven by the 1^st respondent in a rash and negligent manner, hit the petitioner. He fell down and sustained injuries and was treated as an inpatient in two hospitals. The 2^nd respondent was the owner of the Motor Cycle and the 3^rd respondent was the insurer. The petitioner claimed that he was employed in the Postal Department. Hence, he claimed a compensation of Rs.3,25,500/- from the respondents, which was limited to Rs.2,00,000/-.

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MACA NO. 2392 OF 2009

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The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition by permitting the petitioner to recover an amount of Rs.1,12,000/- with interest and cost from the 3^rd respondent.

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Aggrieved by the said award, the 3^rd respondent insurer filed M.A.C.A No.610/2003 before this Court on the ground that the Tribunal had failed to consider the contention of the 3^rd respondent that the 1^st respondent was holding only a learners driving licence and rode the motor cycle without a person having a valid driving licence accompanying him. Therefore, there was a violation of the policy conditions, and the 3^rd respondent was entitled to an order of pay and recovery from the 2^nd respondent.

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This Court by judgment dated 4.12.2007, allowed the appeal and remanded the matter to the Tribunal for fresh consideration, especially to examine the question whether the rider of the motor cycle was holding a valid learner's licence and whether a person with a valid driving licence accompanied the 1^st respondent. This Court did not fix any date for the appearance of the parties.

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On a perusal of the order sheet, it is seen that the

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MACA NO. 2392 OF 2009

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Tribunal called the case on 4.1.2008 and adjourned the case to 31.8.2008. On 31.8.2008 the Tribunal noted the appearance of the petitioner and the 3^rd respondent and adjourned the case to 12.8.2008. On 12.8.2008, the case was adjourned for further consideration to 15.2.2008. On the said date Ext.D2 was marked and the case was adjourned to 29.2.2008, on which date the impugned award was passed, permitting the 3^rd respondentinsurer to recover the compensation amount from respondents 1 and 2. Aggrieved by the above direction, the 2^nd respondent is in appeal.

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Heard; Sri.P.Ramakrishnan, the learned counsel

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appearing for the appellant/petitioner, Sri.V.Rajendran, the learned counsel appearing for the 1^st respondent and Smt.Raji. T.Bhasker the learned counsel appearing for the 3^rd respondent/insurer.

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Sri.P.Ramakrishnan, contended that though this Court had remanded the matter to the Tribunal for fresh consideration, no date was fixed for the appearance of the parties. The Tribunal did not issue any notice to the parties for their appearance. The Tribunal after noting the presence of the petitioner and the 3^rd respondent, disposed of the claim petition by the impugned award. Since this Court did not fix any date for appearance of the parties,

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MACA NO. 2392 OF 2009

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the appellant was under the bonafide belief that a fresh notice would be issued, which was unfortunately not done. It was only because the appellant did not get notice from the Tribunal regarding the re posting of the claim petition, he did not appear before the Tribunal and let in further evidence to substantiate his defence, that the 1^st respondent had a valid learner's licence and was accompanied by one Jomlal, who was cited as court witness in Ext.A5 final report. The appellant has also produced the original driving licence of Jomlal before this Court as Annexure D to prove that he had a valid driving licence. Hence it is prayed that the appellant may be given one more opportunity to contest the case on merits otherwise, it would cause him severe prejudice and hardship.

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Smt.Raji T.Bhaskar, the learned counsel appearing for the 3^rd respondent-insurer contended that the appellant was appearing before this Court through a counsel. Therefore, it was their duty to find out regarding the re-posting of the case. The 3^rd respondent-insurer had already discharged its liability by paying the entire amount of compensation to the 1^st respondent. The appellant is just trying to protract the inevitable. Hence the appeal may be dismissed.

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MACA NO. 2392 OF 2009

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The sole question that emerges for consideration in the appeal is whether the impugned award passed by the Tribunal is legally sustainable or not.

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Undisputedly, the award passed by the Tribunal at the first instance, on 31.10.2002. This Court set aside the award in M.A.C.A No.610/2003, at the instance of the insurer to ascertain whether the 1^st respondent rode the motor cycle with a person having a valid driving licence accompanying him on the motor cycle. This Court did not fix any date for appearance of the parties.

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On a perusal of the proceedings paper maintained by the Tribunal, it does not reflect that the Tribunal had issued fresh notice to respondents 1 and 2 after remand. The course adopted by the Tribunal is irregular and improper. It was imperative for the Tribunal to have issued fresh notice to the parties, particularly when this Court had not fixed a date for appearance of the parties before the Tribunal, before proceeding with the case. Since such a course had not been adopted, I am of the firm opinion that the impugned award passed by the Tribunal is unsustainable in law and is liable to be set aside, as the respondents 1 and 2 before the Tribunal were not given sufficient opportunity to contest the case on its merits.

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In the result, I allow the appeal and set aside the impugned

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MACA NO. 2392 OF 2009

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award dated 29.2.2008, by directing the Tribunal to re-examine the whole issue all over again as directed by this Court in its judgment dated 4.12.2007 in M.A.C.A No.610/2003. The parties are directed to appear before the Tribunal on 25.10.2021, either in person or through their counsel. Keeping in mind the fact that the original petition is of the year 1998, the Tribunal shall make every endeavour to consider and dispose of the original petition as expeditiously as possible and at any rate on or before 23.12.2021, and in accordance with law. The Registry is directed to forthwith transmit the lower court records to the Tribunal and return the original documents to the appellant in accordance with law.

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The parties shall bear their respective costs.

Sd/-

C.S.DIAS

JUDGE

Mary Joseph v. Thankappan Nair and Others

Case brief

What is this about?

What did the court decide?

Mary Joseph v. Thankappan Nair and Others

Case brief

What is this about?

What did the court decide?

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