Kerala High Court
Usha Kumari vs M.V.Kuriakose on 8 October, 2025
2025:KER:73625
MACA No.1490/2010
..1..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 8TH DAY OF OCTOBER 2025 / 16TH ASWINA, 1947
MACA NO. 1490 OF 2010
OPMV NO.1649 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM
APPELLANT/PETITIONER:
USHA KUMARI
AGED 37 YEARS, D/O.PURUSHOTHAMAN, PALAPARAMBU HOUSE,
KALLARAKARA, KALLARA.
RESPONDENTS/RESPONDENTS:
1 M.V.KURIAKOSE
S/O.UTHUPPAN, MULAYIL VEEDU, PRINGALAM P.O. 686 582.
2 JOJI @ JIJO
S/O. JOHN, KAVARAPPAD VEEDU, KIZHAKKUMCHERI,
VADAKKEMURI,, NADUVILA VILLAGE, VAIKOM - 686 141.
3 THE ORIENTAL INSURANCE COMPANY LTD.
KOTTAYAM - 686 001.
BY ADV SHRI.A.R.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 23.09.2025, THE COURT ON 08.10.2025 DELIVERED THE FOLLOWING:
2025:KER:73625
MACA No.1490/2010
..2..
JUDGMENT
Aggrieved by the dismissal of the claim petition by the tribunal, the claimant in OP(MV) No. 1649 of 2006 on the files of the Motor Accidents Claims Tribunal, Kottayam, has come up in appeal.
2. The case of the appellant/claimant is that on 22.11.1997, while she was travelling in a bus bearing Reg.No.KL-7-Q- 4257 through Kottayam-Vaikom road driven by the second respondent in a rash and negligent manner, the said bus hit against another bus bearing Reg.No.5-A-9325, whereby she sustained serious injuries. She approached the tribunal claiming compensation.
3. Respondents 1 and 2/owner and driver of the offending bus remained ex parte before the tribunal. The third respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Exts.A1 to A3 were marked. No evidence was adduced by the respondents. The tribunal, after analysing the pleadings and materials on record, held that the claimant failed to prove negligence on the part of the second respondent/driver of the bus bearing Reg.No.KL-7-Q-4257 and accordingly, dismissed the claim 2025:KER:73625 MACA No.1490/2010 ..3..
petition. Challenging this, the claimant has come up in appeal.
4. I have heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer.
5. When the matter was taken up for hearing, the learned Standing Counsel for the insurer raised an objection regarding the maintainability of the appeal, pointing out that earlier, the appellant/claimant had filed another claim petition as OP(MV) No.703 of 1999 on the files of the Motor Accident Claims Tribunal, Kottayam, which was dismissed; and without disclosing the same, the claimant filed OP(MV) No.1649 of 2006, which also was dismissed. Therefore, according to the learned Standing Counsel, OP(MV) No.1649 of 2006 as well as the present appeal filed against the dismissal of OP(MV) No.1649 of 2006 is not maintainable.
6. The learned counsel for the appellant submitted that the earlier claim petition, OP(MV) No.703 of 1999, had been dismissed for default and the present claim petition was filed after two years thereafter. It is also argued that the question regarding maintainability was not raised by the respondent insurer before the tribunal in OP(MV) No.1649 of 2006. It is further submitted that the order passed by the tribunal in OP(MV) No.703 of 1999 is under Order IX Rule 3 of the Code 2025:KER:73625 MACA No.1490/2010 ..4..
of Civil Procedure (for short, "CPC") and hence, there is no bar in filing a fresh claim petition.
7. The learned Standing Counsel for insurer, per contra, submitted that since the insurer, who was the third respondent in OP(MV) No.703 of 1999, had appeared before the tribunal and only the appellant/claimant was absent on the day when the order was passed, it is an order under Order IX Rule 8 of CPC and not under Order IX Rule 3; and hence, a second claim petition is not maintainable.
8. This Court, by order dated 09.09.2025, appointed Adv.Sri.A.R.Nimod as Amicus Curiae to assist the court. The learned Amicus Curiae brought to the notice of this Court the provisions under Order IX Rules 3, 4, 8 and 9 of CPC. He also appraised this Court of the judgment of the apex court in Amruddin Ansari (Dead) through LRs & Others v. Afajal Ali & Others [2025 (3) KHC SN 15], wherein the issues decided were whether a fresh suit is maintainable after the dismissal of the petition for restoration of suit under Order IX Rule 4 of CPC and whether a fresh suit is barred by res judicata after the dismissal of the suit for default. Paragraph 16 of the judgment in Amruddin Ansari (supra) reads as follows:
"16. The basic difference between the two provisions i.e. Rule 2025:KER:73625 MACA No.1490/2010 ..5..
4 and Rule 9 of Order IX CPC is that in the case where the suit is dismissed under Rule 2 or Rule 3 of Order IX, the remedy provided is under Rule 4 of Order IX of the C.P.C. In case of such dismissal, the plaintiff either brings a fresh suit on the same cause of action or he may apply for setting aside the order of dismissal and for restoration of suit. Whereas if the suit is dismissed under Rule 8 of Order IX of the C.P.C., the plaintiff cannot bring a fresh suit on the same cause of action. The only remedy available to the plaintiff is to move an application for setting aside the order of dismissal and for restoration of suit."
9. The learned Amicus Curiae also brought to the notice of this Court a Full Bench judgment of this Court in Jacob Thomas @ Shaju v. C.Pandian & others [2005 KHC 1509], wherein the question referred for consideration of the Full Bench was whether the Motor Accident Claims Tribunals have jurisdiction to dismiss an application for compensation filed before them for default or non-prosecution by invoking the powers under Rule 395 of the Motor Vehicles Rules read with Order IX of CPC. The Full Bench of this Court held therein that where the tribunal is genuinely satisfied that there are contumacious laches on the part of the claimants in prosecuting their claims and where the claimants are not interested in prosecuting their cases, the tribunal can dismiss the application for default using Order IX Rule 8 in appropriate cases. It was also held that when the claim petition is dismissed for default, parties will be free to approach the tribunal to set aside such orders by filing application under Order IX rule 9. So, the issue to be decided in this case is whether the order passed on 2025:KER:73625 MACA No.1490/2010 ..6..
18.08.2003 is an order passed under Order IX Rule 3 or Rule 8 of CPC.
10. The proceedings sheet in OP(MV) No.703 of 1999 is extracted as follows:
07.03.2000 Produce additional Stamps issue notice. Posted Id/-
for return of notice to 06.12.2000 MACT
06.12.2000 R1 to 3 appears and written statement Id/-
16.04.2001 MACT
16.04.2001 R2 called absent set exparte. R3 prays for Id/-
written statement. Issue fresh notice to R1 MACT
28.08.2001
28.08.2001 Issue fresh notice to R1 and written statement Id/-
of R3 29.12.2001 MACT
29.12.2001 No sitting. Notified to 23.03.2002 Id/-
MACT
23.03.2002 No sitting. Notified to 15.06.2002 Id/-
MACT
15.06.2002 Issue fresh notice to R1 and written statement Id/-
of R3 11.11.2002 MACT
11.11.2002 Issue notice to R1. R3 for written statement. For Id/-
return of notice to R1 to 15.01.2003 MACT
15.01.2003 Issue of R1 to correct address to 07.05.2003 Id/-
MACT
07.05.2003 Petitioner called absent. Issue notice to R1 to Id/-
04.08.2003 MACT
04.08.2003 R1 served notice and called absent set exparte. Id/-
For evidence of petitioner to 13.08.2003 MACT
13.08.2003 No oral evidence Ext.A1 to marked. For further Id/-
evidence to 18.08.2003 MACT
18.08.2003 Petitioner and counsel absent. No document Sd/-
produced as represented. Petition is under MACT
2025:KER:73625
MACA No.1490/2010
..7..
section 166 MV Act claiming compensation in respect of an accident occurred on 22.11.97.
The claim is preferred after 2 years of the accident. None of the respondent filed written statement in the case. The petitioner and counsel are also absent. No details of the crime is given in the petition, so that this tribunal is not in a position to call for the criminal case records also. It appears that the petitioner is not interested in proceedings with the matter. Hence the petition is dismissed. No cost.
11. On a perusal of the proceedings sheet, it is seen that respondents 1 and 2 were absent and declared ex parte, whereas, the third respondent insurer appeared and sought time for filing a written statement. On 13.08.2003, it was recorded that, "No oral evidence Ext.A1 to marked. For further evidence to 18.08.2003". On 18.03.2003, the petitioner and the counsel were absent and it was recorded that no document was produced as represented. Since the claim petition was filed under Section 166 of the Motor Vehicles Act, and since the petitioner failed to produce the details of the crime in the petition, the tribunal found that the tribunal is not in a position to call for the criminal case records and that the petitioner appears to be not interested in proceeding with the matter. Accordingly, the petition was dismissed. It could be seen that the third respondent insurer was not absent on that day, since the proceedings sheet does not reflect the same. It is also discernible from the proceedings sheet that the 2025:KER:73625 MACA No.1490/2010 ..8..
proceedings that took place on 18.08.2003 was one coming under Order XVII Rule 2 of CPC, which reads as follows:
"2. Procedure if parties fail to appear on day fixed.-- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
Explanation.-- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present."
12. Accordingly, the tribunal, in the absence of any further evidence and in the absence of the petitioner, dismissed the petition, which comes under Order IX Rule 8 of CPC. If it is an order under Order IX Rule 8 of CPC, a fresh suit is barred under Order IX Rule 9 of CPC. A Full Bench of this Court in Jacob Thomas @ Shaju (supra) has also held that if an order is passed under Order IX Rule 8 of CPC, there is bar for filing a fresh petition.
13. It was argued by the learned counsel for the appellant that the question regarding maintainability was not raised by the respondent insurer before the tribunal in OP(MV) No.1649 of 2006. In Lubna K. and Others v. Beevi and Others (2020 (1) KHC 460), the apex court held as follows:
2025:KER:73625 MACA No.1490/2010 ..9..
"On the legal principle, it is trite to say that a pure question of law - can be examined at any stage, including before this Court. If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such legal consequences would be a pure question of law."
Therefore, I find that the question regarding maintainability can be raised at any stage including before this Court.
14. The learned counsel for the appellant further raised an argument that the case was not posted for hearing, but was adjourned for further evidence and since the case was not posted for hearing, the order passed cannot be considered as one passed under Order IX Rule 8 of CPC. In Kanaran Nambiar v. Ramunni Nambiar And Others (1961 KHC 53), this Court held as follows:
"Hearing as used in the Code of Civil Procedure, does not mean the hearing of arguments only. It refers to all the stages of the trial of a suit, namely, the settling of issues, taking of evidence and hearing of arguments or other proceedings tending to a final adjudication of the suit. It may not refer to matters connected with the disposal of interlocutory proceedings in the course of the suit; but it includes all proceedings which lead to the disposal or decision of the suit as such".
Hence, the argument of the learned counsel for the appellant that the case was not posted for hearing, but for further evidence, cannot stand.
15. Since it is found that it is an order passed under Order IX Rule 8 of CPC, I find that OP(MV) No.1649 of 2006 on the file of the Motor Accident Claims Tribunal, Kottayam, as well as the present appeal arising therefrom is not maintainable. Since, it is found that the 2025:KER:73625 MACA No.1490/2010 ..10..
original petition as well as the appeal is not maintainable, the prayer for compensation also cannot be allowed.
16. The assistance rendered by Adv.A.R.Nimod, learned Amicus Curiae, is truly commendable and goes beyond appreciation.
Accordingly, the appeal is dismissed.
Sd/-
SHOBA ANNAMMA EAPEN JUDGE bka/-