Partly allowed

Sheeba v. K.S. Souda

Kerala HC6 Feb 2023MACA/3749/2021

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal against a Motor Accident Claims Tribunal award in part. It allowed the appellant to prove she sold the vehicle, remanding that specific issue to the Tribunal for a fresh hearing. The Court held that the appellant had no prior opportunity to challenge the Tribunal's finding on her status as the registered owner.

What did the court decide?

The appeal was allowed in part and the original petition remanded to the Tribunal to hear the appellant on whether she is the owner, with a direction to decide within eight months.

Sheeba Vs K.S. Souda — Motor Accident Claims | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 6^TH DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944

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MACA NO. 3749 OF 2021

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AGAINST THE ORDER/JUDGMENTOPMV 1356/2009 OF MOTOR ACCIDENT CLAIMS

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TRIBUNAL ,ATTINGAL

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APPELLANT/1ST RESPONDENT:

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SHEEBA, AGED 41 YEARS, EDAVILA VEEDU, PAKISTANMUKKU, ARUVIPPURAM, MITHIRMALA P.O., (VIA) KALLARA, THIRUVANANTHAPURAM - 695123.

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BY ADV T.A.PRAKASH

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RESPONDENTS/PETITIONERS AND 2ND RESPONDENT:

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1 K.S. SOUDA, W/O.M.SALIM, KEETTAZHIKATHU VEEDU, PULIMATH P.O., PULIMATH VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695612.

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2 DILU, S/O.M.SALIM, KEETTAZHIKATHU VEEDU, PULIMATH P.O., PULIMATH VILLAGE, THIRUVANANTHAPURAM DISTRICT-695612.

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3 SAMITHA S. (MINOR), D/O.M.SALIM, KEETTAZHIKATHU VEEDU, PULIMATH P.O., PULIMATH VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695612.

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4 THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, MALANKARA BUILDING, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM - 695033.

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BY ADV P.K.MANOJKUMAR – SC.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 3749 OF 2021

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JUDGMENT

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This appeal is being disposed of with the consent of both sides today itself.

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The appellant says that though she is the registered owner of the vehicle involved in the accident, she had sold the same to another person much before it. She alleges that, however, she was unable to bring this to the notice of the learned Tribunal because the matter had been disposed of by it, without service of summons to her, and based on a paper publication, which has been done in violation of all the applicable statutory requirements. She thus prays that the impugned Award of the learned Tribunal, which allows the 4^th respondent - Insurance Company to pay compensation to the claimants and to recover it from her, be set aside.

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The afore submissions of Sri.T.A.Prakash – learned counsel for the appellant, were answered by Sri.P.K.Manojkumar – learned Standing Counsel appearing for the Insurance Company, saying that when the appellant refused to lead evidence before the Tribunal, in spite of the fact that she was served notice through a publication, she is not entitled to any latitude from this Court. He argued that

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MACA NO. 3749 OF 2021

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the findings of the learned Tribunal, with respect to the liberty of his client to recover the compensation from the appellant, after paying the claimants, is irreproachable; and thus prayed that this Appeal be dismissed.

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I notice from the file that notices to respondents 1 to 3 had been dispensed with at the risk of the appellant. This does not, however, impede this Court from disposing of this matter because the directions proposed herein will not cause any prejudice.

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I do not require to speak in great detail about the rival contentions because, when this matter was considered by another learned Judge on 10.02.2022, the following was recorded in the order in C.M.Application No.1/2021.

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“The sole point that arises for consideration in the application is whether the petitioner had made out sufficient cause to condone the delay of 2385 days in filing the appeal. 6. The petitioner has produced Annexure-A-1 B-diary which shows that the claim petition was filed on 22.11.2009 and was posted on 19.06.2010. On the said date, there was no sitting and the case was adjourned to 13.08.2010. On 13.08.2010, the 2nd respondent entered appearance. Without mentioning anything about the steps taken against the petitioner the Tribunal ordered substituted service of notice by paper publication against the petitioner. What is the outcome of the substituted service of notice is not discernible from the B-Diary. It remains an undisputed fact that, the petitioner was not served with notice in the ordinary way, that too at the first instance. Therefore, I find sufficient force in the

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MACA NO. 3749 OF 2021

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contention of the petitioner that she was not served with notice in the claim petition. Therefore, I accept her contention that she became aware of the proceeding only when she received notice in the execution petition. In the above factual circumstances, I am convinced and satisfied that the petitioner has stated sufficient cause to condone the delay of 2385 days in filing the appeal. Hence, the C.M.Appln. is allowed and the delay is condoned.”

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The learned counsel for the parties are ad idem that the afore factual narration of this Court is without dispute and that they do not intend to speak contrary to it in any manner.

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The afore being so, it is obvious that the appellant never obtained any opportunity before the Tribunal to prove that she had allegedly sold the vehicle, or to point out the person who had purchased it from her, if the same is true. I am certain that, therefore, she should be given an opportunity to that extent.

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Resultantly, I allow this appeal in part and remand the original petition to the Tribunal; however, solely with respect to the question whether the appellant is the registered owner of the vehicle, but without touching the compensation awarded or the directions therein to the insurance company to pay the same to the claimants.

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The learned Tribunal shall endevour to dispose of the original petition to the afore extent, after hearing the appellant, as also the insurance company and after affording

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MACA NO. 3749 OF 2021

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them necessary opportunities of leading evidence; thus culminating in a fresh order on this aspect, as expeditiously as is possible, but not later than eight months from the date of receipt of a copy of this judgment.

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Needless to say, the directions in the impugned Award to the insurance company to deposit the amounts in favour of the claimant, as also the right of the latter to recover it from the owner – whoever it be - are left in tact.

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Sd/- DEVAN RAMACHANDRAN

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JUDGE

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mc/stu

Sheeba v. K.S. Souda

Case brief

What is this about?

What did the court decide?

Sheeba v. K.S. Souda

Case brief

What is this about?

What did the court decide?

What the court decided

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