Kerala High Court
Baby Varghese vs Banesh on 16 February, 2011
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP (MACT).No. 609 of 2011(O)
1. BABY VARGHESE, AGED YEARS,
... Petitioner
Vs
1. BANESH, AGED ABOUT 38 YEARS,
... Respondent
2. M.K.VIJAYAN, MANAKULANGARA HOUSE,
3. THE UNITED INDIA INSURANCE COMPANY LTD.,
4. SUNIL M.G., MALAYIL HOUSE,
5. THE NEW INDIA ASSURANCE CO.LTD.,
6. THE VILLAGE OFFICER, KOOVAPADY VILLAGE,
7. THE VILLAGE OFFICER, VENGOLA VILLAGE,
8. TAHSILDAR, KUNNATHUNAD THALUK,
For Petitioner :SRI.C.A.NAVAS
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :16/02/2011
O R D E R
P.N.RAVINDRAN, J.
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O.P(MAC) No. 609 OF 2011
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Dated this the 16th day of February, 2011
J U D G M E N T
The petitioner was the second respondent in OP(MV) No.1869 of 2001 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. A jeep bearing registration No.KLI 4539 of which he was the owner and the driver, was involved in an accident on 31.8.2001 causing injuries to the claimant in OP(MV) No. 1869 of 20091 who was riding a motor bike. Though the petitioner received notice of the claim petition, he did not appear and contest the case and was therefore set ex-parte. By Ext.P1 award passed on 24.1.2005, the Motor Accidents Claims Tribunal awarded the sum of Rs.35,500/- with 9% interest as compensation and directed the insurer, the third respondent herein, to pay the compensation. The insurer was also permitted to realise the compensation paid by it from the petitioner and the former owner of the vehicle namely the first respondent in the claim petition. Ext.P1 award has attained finality. The petitioner thereafter filed I.A. No. 1249 of 2006 to condone the delay of 1461 days in filing I.A. No.1250 of 2006 to set aside ex-parte award. The insurer had in the meanwhile filed I.A. No.5333 of 2005 for issuance of a revenue recovery certificate in OP(MAC) No.609/2011 2 order to enable the insurer to realise the sum of Rs.46,022/- deposited by it as compensation together with interest at the rate of 4% per annum from the petitioner. All the three applications were jointly heard. By Ext.P4 order, the Tribunal decline to condone the delay of 1461 days in filing I.A. No.1250 of 2006. The Tribunal accordingly dismissed I.A. No.1249 of 2006 and 1250 of 2006. By the same order, the Tribunal allowed I.A. No.5333 of 2005 and a recovery certificate was ordered to be issued. Hence this writ petition. The main contention raised by the petitioner is that the jeep which he was driving had a valid permit on the date of accident namely, 31.8.2009 and therefore the finding in Ext.P1 award that the vehicle was not covered by a valid permit is erroneous. The petitioner contends that as a valid permit was in existence on the date of the accident, the Tribunal ought to have allowed the applications and reviewed the award in so far as it held him liable to pay the compensation.
2. I heard Sri.Shiraz Abdulla, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. It is evident from the materials on record that the petitioner who was the second respondent in OP(MV) No. 1869 of 2001 was set ex-parte on 20.2.2002 as the notice issued to him in OP(MAC) No.609/2011 3 the claim petition was returned with the endorsement "unclaimed." After the trial of the case commenced, the insurer filed I.A. No.4755 of 2003 for an order directing the second respondent (the petitioner herein) to produce the permit and fitness certificate in respect of the jeep which was involved in the accident. Notice was ordered on the said application and it was served on the petitioner herein. The petitioner even thereafter did not produce the permit. Therefore an adverse inference was drawn against him and it was held that at the time of the accident the vehicle did not have a valid permit. It is for these reasons that the Tribunal declined to allow the application to condone the delay and to set aside ex-parte award. The reasons stated by the Tribunal cannot in my opinion be said to be perverse. It is evident from the conduct of the petitioner that notwithstanding the opportunities given to him, he did not appear and contest the claim petition. The notice issued to him in the claim petition was returned with the endorsement "unclaimed". The notice issued on I.A. No.4755 of 2003 was served on him. But even thereafter he did not appear before the Tribunal or produce the permit which he now relies on. In such circumstances, I am of the opinion that the view taken by the Tribunal does not merit interference. It is evident from the conduct of the petitioner that it was only after he received notice of OP(MAC) No.609/2011 4 I.A. 5333 of 2005 filed by the insurer for a recovery certificate that the petitioner took steps to appear before the Tribunal. The petitioner who did not avail the earlier opportunities extended to him by the Tribunal to appear and contest the case, cannot be heard to contend that he was disabled by sufficient cause from appearing before the Tribunal on the earlier occasions.
I therefore find no merit in the challenge to the impugned orders. The original petition fails and is accordingly dismissed.
P.N.RAVINDRAN, (JUDGE) vps After the writ petition was dismissed but before the judgment was signed, Sri.Shiraz Abdulla, learned counsel appearing for the petitioner submitted that the writ petition may be posted for being spoken to. It was accordingly posted for being spoken to, today.
2. The learned counsel appearing for the petitioner submitted that pursuant to the passing of the order impugned in this writ petition, Ext.P6 demand notice issued under section 34 of the Kerala Revenue Recovery Act, 1968 was served on him demanding payment of the sum of Rs.46022/-. It is submitted that upon receipt of the said notice, the petitioner deposited the sum of Rs. 17,750/- in OP(MAC) No.609/2011 5 the Motor Accidents Claims Tribunal and that having regard to the said fact, the petitioner may be granted time to pay the balance amount in instalments. The learned counsel appearing for insurer at whose instance the revenue recovery proceedings were initiated opposed the said submission. As the petitioner has already deposited 1/3 rd of the amount demanded as per Ext.P6 demand notice, I am of the opinion that he should be given an opportunity to pay the balance amount in instalments. I accordingly direct that in the event of the petitioner paying the amount demanded in Ext.P6 notice with subsequent interest and other charges in three equal monthly instalments, commencing from 15th of March 2011, the revenue recovery proceedings shall be kept in abeyance. It is clarified that if the petitioner fails to pay the amount demanded in instalments as directed above, it will be open to the insurance company to proceed to realise the balance amount payable by the petitioner in lump.
P.N.RAVINDRAN, 22.2.2011 JUDGE vps OP(MAC) No.609/2011 6 OP(MAC) No.609/2011 7