IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 730 of 2008(J) ----------------------------------- [O.P(MV).NO.2565/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE] .................... PETITIONERS: --------------------- 1. MRS.ICY P.DAVID, WIFE OF LATE PREMARAJ PAULSON.P., AGED 45 YEARS, RESIDING AT 28/2380, PURAYAATHU, MUZHAMAL PARAMBA, THONDAYADU, NELLIKODU AMSOM AND DESOM, P.O.CHEVARAMBALAM, KOZHIKODE-17. 2. DILIP.P.PREMRAJ, SON OF LATE PREMARAJ PAULSON.P., AGED 19 YEARS, RESIDING AT 28/2380, PURAYAATHU, MUZHAMAL PARAMBA, THONDAYADU, NELLIKODU AMSOM AND DESOM, P.O.CHEVARAMBALAM, KOZHIKODE-17. BY ADV. SRI.JACOB ABRAHAM. RESPONDENTS: ------------------------ 1. S.MOHANDAS, SON OF SHANMUGHAM, DOOR NO.02A, PETTAI ROAD, BESAMPUR P.O., DINDIGAL DISTRICT, TAMIL NADU. 2. M.SANKAR, SON OF MOOKKAN, AGED 36 YEARS, KILACENT COPPE, TRICHY. 3. M/S.NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, OTTANCHATRAM, DINDIGAL DISTRICT, TAMILNADU-624 001. R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADV. SRI.P.JACOB MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.730/2008-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE WRITTEN STATEMENT FILED BY THE R.3. IN O.P.(MV). NO.2565/2003 OF THE PRL.M.A.C.T., KOZHIKODE. EXT.P.2: COPY OF THE ADDL. WRITTEN STATEMENT FILED BY THE R.3. IN O.P.(M.V). NO.2565/2003 OF THE PRL.M.A.C.T., KOZHIKODE. EXT.P.3: COPY OF THE I.A. NO. 5237/2007 FILED BY THE PETITIONERS IN O.P.(M.V). NO.2565/2003 OF THE PRL.M.A.C.T., KOZHIKODE. EXT.P.4: COPY OF THE I.A. NO. 5237/2007 IN O.P.(M.V.).NO.2565/2003 OF THE PRL.M.A.C.T., KOZHIKODE. EXT.P.5: COPY OF THE I.A. NO. 6259/2007 IN O.P.(M.V).NO.2565/2003 OF THE PRL.M.A.C.T., KOZHIKODE. EXT.P.6: COPY OF THE ORDER DT. 22/12/2008 OF THE PRL.M.A.C.T., KOZHIKODE MADE IN O.P.(M.V).NO.2565/2003. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J ........................................... WP(C).NO.730 OF 2008 ............................................ DATED THIS THE 17TH DAY OF FEBRUARY, 2011 JUDGMENT The petitioners are the claimants in O.P(MV)No. 2565 of 2003 on the file of MACT, Kozhikode. In the said claim petition, they seek to realise the sum of Rs.21,00,000/- from the respondents herein as compensation for the death of late Premraj Paulson, husband of the first petitioner and father of the second petitioner, who succumbed to the injuries sustained by him in a motor accident. The first respondent herein is the owner, the second respondent herein is the driver and the third respondent is the insurer of the vehicle involved in the accident. Respondents 1 and 2 were set exparte, as they did not appear even after service of summons from the Tribunal. The third respondent entered appearance and filed Ext.P1 written statement, wherein, after admitting the existence of a valid policy, various contentions were raised, including the contention that the compensation claimed is excessive. It was also contended that the liability of the insurer is limited to the terms Wpc 730/2008 2 and conditions of the policy and the relevant provisions of the Motor Vehicles Act, 1988 and that as respondents 1 and 2, who are the owner and driver respectively, are not contesting the case properly, leave may be granted to the insurer to contest the case on all available grounds in terms of section 170 of the Motor Vehicles Act. 2. Shortly before the trial commenced, the insurer filed Ext.P2 additional written statement wherein for the first time, nearly four years after filing of the claim petition, an additional plea was raised that though the vehicle was insured, the first respondent was not the insured and the insured was another person. The name of the insured was not however disclosed. The petitioner thereupon filed Exts.P3 and P4 applications, (I.A.Nos.5237 of 2007 and 5238 of 2007) seeking impleadment of the real owner and the insured as the additional 4th respondent in the claim petition and to amend the claim petition and another application (IA No.6259 of 2007) to direct the Regional Transport Officer, Sreerangam, Tiruchirappilly to produce the registration particulars of the vehicle involved in the accident. Though the said applications were pending, the Tribunal Wpc 730/2008 3 proceeded with the trial of the case and passed Ext.P6 order dated 22.12.2007, which reads as follows:- “No oral evidence, Exts.A1 to A3 marked. Further evidence”. The said order is under challenge in this writ petition. 2. I heard Sri Jacob Abraham, learned counsel appearing for the petitioner and Sri Mathew Jacob, learned senior advocate appearing for the third respondent insurer. In view of the fact that respondents 1 and 2 who did not appear and contest the claim petition and were set exparte have not challenged the order passed by the Tribunal setting them exparte, I am of the opinion that they are not entitled to be put on notice and heard in this writ petition. The learned counsel for the petitioner contended that it was in view of the additional written statement filed by the insurer raising the plea that first respondent in the claim petition is not the insured, that the petitioner was compelled to make enquiries and take steps to implead the real owner/insured and also to take steps to obtain the registration particulars of the vehicle. The learned counsel contended that in such circumstances, the Tribunal ought to have allowed the Wpc 730/2008 4 applications before proceeding with the trial of the case. Per contra, the learned counsel for the insurer contended that the petitioner was not ready to proceed with the trial of the case and that is why the impugned order was passed. In my opinion, in view of the contention raised by the insurer in the additional written statement, the Tribunal ought to have granted the petitioner, an opportunity to implead the real owner/insured whose presence before the Court is necessary for a fair adjudication of the dispute. The Tribunal ought to have, in my opinion, allowed the applications, I.A.Nos.5237 and 5238 and 6259 of 2007, issued notice to the real owner/insured and thereafter proceeded to try and dispose of the claim petition. 3. I accordingly allow the writ petition, quash Ext.P6 order passed by the Tribunal inO.P(MV)No. 2565 of 2003 and direct the Motor Accidents Claims Tribunal, Kozhikode to pass orders on I.A.Nos.5237, 5238 of 2007 & 6259 of 2007 before proceeding with the trial of OP(MV)No.2565 of 2003. P.N.RAVINDRAN, JUDGE lgk