Kerala High Court
P.T.Jose vs Boby K.J on 30 May, 2011
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11522 of 2010(M)
1. P.T.JOSE, AGED 64 YRS.,S/O THOMAKUTTY,
... Petitioner
Vs
1. BOBY K.J., KOLLAPPALLIL HOUSE,
... Respondent
2. UNITED INDIA INSURANCE COMPANY LTD.,
3. M.K.NARAYANANKUTTY, AGED NOT KNOWN,
4. THAHSILDAR(RR), KANAYANNUR TALUK,
For Petitioner :SRI.P.GOPAKUMARAN NAIR
For Respondent :SRI.A.R.GEORGE
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :30/05/2011
O R D E R
P.N.RAVINDRAN, J.
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W.P(C).No.11522 of 2010
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Dated this the 30th May, 2011
JUDGMENT
The petitioner herein, the first respondent in O.P.(MV) No.1713 of 2000 on the file of the Motor Accidents Claims Tribunal, Kottayam, has filed this writ petition challenging Ext.P7 order dated 11.3.2010 passed by the Motor Accidents Claims Tribunal, Kottayam, rejecting I.A.No.3102 of 2009 filed by him to set aside the ex parte award passed in O.P.(MV)No.1713 of 2000 and IA.No.3101 of 2009 to condone the delay of 4 years 6 months and 22 days in filing I.A.No.3102 of 2009. The brief facts of the case are as follows.
2. The first respondent herein filed O.P.(MV)No.1713 of 2000 in the Motor Accidents Claims Tribunal, Kottayam claiming compensation for the injuries sustained by him in an accident that took place on 5.7.2000 when the autorickshaw, bearing registration No.KL-5/G-3868, driven by him collided with a motor car bearing registration No.KL-7/V 9747, which admittedly belonged to the petitioner, but had been sold by him on 2.3.2000 W.P(C) NO.11522/2010 -:2:- to the third respondent herein. In the claim petition, the transferee of the car was not made a party but the petitioner herein, the original owner, was made a party.
3. The petitioner received notice of the claim petition on 8.2.2001. The date fixed for appearance was 23.2.2001. He states that though after receipt of summons he had made necessary arrangements to engage a counsel to conduct the case on his behalf, shortly thereafter he received a letter from the insurance company to the effect that the insurer will engage an Advocate of their choice for and on his behalf also, that on receipt of the said letter he executed a vakalatnama, filled up the printed pro-forma enclosed along with the letter and handed them over in the office of the second respondent at Kottayam and that the officer who received the said documents acknowledged receipt of the same on a copy of the letter sent by the insurer. It is also stated that the petitioner had even earlier sent Ext.P1 letter dated 17.2.2001 to the office of the insurer at Ernakulam stating that he has sold the vehicle to the third respondent herein. Since the petitioner did not appear on 23.2.2001 or thereafter he was set ex W.P(C) NO.11522/2010 -:3:- parte. Later an award was passed on 31.12.2004 directing payment of the sum of Rs.2,24,970/- with interests and costs. The Tribunal, on an analysis of the evidence - oral and documentary, held that the driver of the car did not have a valid driving licence. Therefore, even while directing the insurer to pay the compensation awarded by the Tribunal, the Tribunal observed that it will be open to the insurer, after effecting the payment, to recover the compensation paid by it from the petitioner. The insurer paid the compensation to the claimant and thereafter filed E.P.No.272 of 2005. The petitioner admittedly received notice in the execution petition. The case of the petitioner is that though thereafter he had engaged a lawyer practising at Kottayam to take steps to file an appropriate application to have the ex parte award set aside after condoning the delay, the lawyer fell ill and was laid up due to multiple organ failure and later passed away. The petitioner states that while matters stood thus he received Ext.P5 notice under sections 33 and 7 of the Kerala Revenue Recovery Act, 1968 demanding payment of the sum of Rs.2,96,411/- with interest, that he had in the meanwhile filed Exts.P3 and P4 W.P(C) NO.11522/2010 -:4:- applications through another lawyer to set aside the ex parte award and to condone the delay of 4 years 6 months and 22 days in filing the application to set aside the ex parte award. By Ext.P7 order which is impugned in this writ petition, the Tribunal dismissed both the applications. Hence this writ petition.
4. I heard Sri.N.K.Subramanian, learned counsel appearing for the petitioner and Sri.A.R.George, learned counsel appearing for the insurer. I have also considered the pleadings and the materials on record. The fact that the petitioner had received notice in O.P(MV)No.1713 of 2000 on 8.2.2001 is not in dispute. An award was passed against the petitioner only on 31.12.2004, more than three years thereafter. The petitioner did not admittedly appear after receipt of notice from the Tribunal. The explanation offered by him in Exts.P3 and P4 is that upon receipt of a letter from the insurance company wherein they had offered to defend the case on his behalf also, he had executed a vakalatnama and filled up a printed proforma and handed it over to the second respondent on 19.2.2001. The petitioner has also stated in Exts.P3 and P4 that the officer of the second respondent W.P(C) NO.11522/2010 -:5:- insurer had acknowledged receipt of the vakalatnama and proforma by affixing his signature on a copy of the letter sent to the petitioner by the second respondent. The letter alleged to have been sent by the second respondent to the petitioner is not forthcoming. Apart from the ipse dixit of the petitioner there is no material to substantiate his contention that the insurer had offered in writing to defend the case on his behalf also and he had acted on that offer. It is in this background that the petitioner's case that he was unaware of the disposal of the case till he received notice in the execution petition has to be appreciated. The petitioner has also stated that though he had engaged a lawyer to file objections to the execution petition and to file applications to set aside the ex parte award and to condone the delay in filing the application for setting aside the ex parte award, on account of illness the lawyer did not take steps in that regard. The Tribunal has in paragraph 10 of Ext.P7 order stated that the case set out by the petitioner cannot be believed for the reason that an objection had been filed on 23.11.2005 to E.P.No.272 of 2005 wherein it had also been stated that steps have been taken W.P(C) NO.11522/2010 -:6:- to set aside the ex parte award after condoning the delay. As a matter of fact the Tribunal has noticed in paragraph 10 of the order that in that objection the petitioner had stated that the application to set aside the ex parte award and to condone the delay in filing that application were presented on 2.11.2005. The Tribunal has in paragraph 10 of the order impugned in the writ petition stated that though the petitioner had filed such an objection containing the aforesaid averments, the details regarding the said objection have not been set out in the affidavits filed in support of I.A.Nos.3101 and 3102 of 2009. In my opinion the very conduct of the petitioner in not referring to the objection dated 23.11.2005 filed by him to E.P.No.272 of 2005 establishes beyond doubt that he was aware of the ex parte award even in the year 2005. The explanation offered by the petitioner for the long delay of 4 years 6 months and 22 days in filing the application cannot, in such circumstances, be believed. So also the blame cast by the petitioner on the lawyer who was engaged by him cannot also be accepted as representing the correct factual position for the reason that an objection had evidently been filed W.P(C) NO.11522/2010 -:7:- by that lawyer on 23.11.2005. From the facts set out in Ext.P7 order it is evident that though the petitioner may be right in contending that he had ceased to be the owner of the motor car on 2.3.2000 the case set out by him in the writ petition and in Exts.P3 and P4 applications cannot be believed. The petitioner has also not produced any cogent material in support of the case set out by him in Exts.P3 and P4 applications. Such being the situation, I find no reason or justification to interfere with the impugned order.
I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. No costs.
P.N.RAVINDRAN, Judge.
ahg.
P.N.RAVINDRAN, J.
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W.P(C).No.11522 of 2010
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JUDGMENT 30th May, 2011