IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 OP.No. 5588 of 2002(M) -------------------------------- PETITIONER(S): -------------------- N.KAMALA BAI AMMA, AGED 77 YEARS, WIFE OF VASUDEVAN NAIR, RESIDING AT "KAMALALAYAM", EDACODE, NEMOM P.O., THIRUVANANTHAPURAM. BY ADVS.MR.P.GOPAKUMARAN NAIR MR.C.S.DIAS RESPONDENT(S): ------------------------ 1. KUNDUVAYIL BEERAN, AGED 47 YEARS, S/O. HYDRU, KUNDUVAYIL HOUSE, PONMALA AMSOM DESOM, CHAPANANGADI P.O., MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. MR.P.C.SASIDHARAN R2 BY GOVERNMENT PLEADER MR.SANIL KUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.9788/2002 IN OP. NO.5588/2002 DISMISSED 06.11.2009 SD/- K.SURENDRA MOHAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMON ORDER IN OP. (MV) NOS. 854/90 AND 2064/90 OF MACT , MANJERI. DTD. 10.7.1995. P2:- COPY OF THE EXECUTION PETITION WITH ORDER IN EP. 20/97 IN OP.(MV) 854/90 OF M.A.C.T. , MANJERI. 25.5.99. P3:- COPIES OF AFFIDAVIT AND PETITION OF THE IST RESPONDENT WITH COPY OF ORDER SHEET IN IA. 1121/99 IN OP.(MV) 854/90 OF M.A.C.T., MANJERI. P4:- COPIES OF AFFIDAVIT AND PETITION OF OF THE RESPONDENT WITH COPY ORDER SHEET IN IA. 1122/99 IN OP(MV) 854/90 OF M.A.C.T., MANJERI DTD. 12.4.2000. P5:- COPIES OF AFFIDAVIT AND PETITION OF THE IST RESPONDENT WITH COLPY OF ORDER SHEET IN IA. 1120/99 IN OP. (MV) 854/90 OF M.A.C.T., MANJERI. DTD. 30.9.99. P6:- COPY OF THE PETITION SUBMITTED BY THE PETITIONER AS IA. 3839/2000 IN OP (MV) 854/90 OF M.A.C.T., MANJERI. DTD. 6.9.2000. P7:- COPY OF THE ORDER IN IA. 3839/2000 IN OP(MV) 854/90 OF M.A.C.T., MANJERI. P8:- COPY OF THE ENDORSEMENT ON EXT.P1 AWARD IN OP(MV) NO.854/90 OF M.A.C.T., MANJERI. DTD. 29.8.2000. P9:- COPY OF THE NOTICE WITH EP. OF THE IST RESPONDENT FILED AS EP. 135/2001 IN OP(MV) NO.854/90 OF M.A.C.T., MANJERI. TRUE COPY P.A. TO JUDGE tss K.SURENDRA MOHAN, JJ. ------------------------------------------- O.P. No.5588 of 2002 ------------------------------------------- Dated this the 6th day of November, 2009 JUDGMENT The petitioner challenges an exparte award passed by the Motor Accidents Claims Tribunal, Manjeri on 29.8.2000, evidenced herein by Ext.P8. Exts.P3, P4 and P5 orders are also challenged by the petitioner. 2. The petitioner is the mother of one K.V.Narayanan Nair, who is no more. He was the 5th respondent in O.P. (MV) No.854 of 1990 of the Motor Accidents Claims Tribunal, Manjeri. The said original petition was filed by the first respondent herein, who had sustained injuries in a motor accident which took place on 5.5.1989 at 4.45 p.m. at Ambalapuzha. The accident was caused by the collision of a taxi car bearing Reg.No.KER 4148 with a van bearing Reg.No.KCF 3769. Late Narayanan Nair was the owner of the car that was involved in the accident. After trial, the claim of the first respondent was allowed and compensation was awarded to him by the Motor Accidents Claims Tribunal. The liability for payment of an amount of Rs.15,000/- alone was fastened on the Insurance Company, while the 5th respondent was held liable for the rest of the O.P.No.5588 of 2002 2 amount of compensation. Even during the pendency of the proceedings before the Motor Accidents Claims Tribunal, K.V.Narayanan Nair had expired. However, the said fact was not brought to the notice of the Tribunal by anyone, probably because no one knew of his death since the said person had remained exparte. Therefore, on the date on which the award was passed by the Tribunal, Sri.K.V.Narayanan Nair was not alive and consequently the award was passed against a dead person. 3. Subsequently, Execution proceedings were initiated and when notice was sought to be served on K.V.Narayanan Nair, it was known that he had expired long before. Thereupon, the petitioner in the Writ Petition and her son Anil were made parties to the Execution Petition as his legal representatives and the award was sought to be executed against them. Immediately, they filed objections pointing out that the award passed against a dead person was a nullity and was not liable to be executed against them. Thereupon, the Execution Petition was dismissed accepting their objections. Shortly thereafter, the first respondent filed a petition to cancel the award and to re- O.P.No.5588 of 2002 3 try the case. The said petition was accompanied by a petition to condone the delay in filing the same. As per Ext.P3 order dated 29.6.1999, the Motor Accidents Claims Tribunal appears to have condoned the delay in filing the said petition for the reason that the first respondent had had no knowledge of the death of K.V.Narayanan Nair since he was exparte. According to the petitioner, it was only when she received notice in the said petition and the petition for condonation of delay that she came to know of the proceedings that had been pending against her deceased son. Though the counsel for the petitioner who had filed vakalath on her behalf in the Execution proceedings sought time for filing objections, time was not granted and the petitions were allowed on the first posting date itself, it is alleged. The said orders are Exts.P4 and P5. It is the further case of the petitioner that actually no petition for impleading the petitioner as the legal heir of the deceased was filed by the first respondent. However, in spite of the above, time was not granted to the petitioner and the earlier award is stated to have been reviewed and an exparte award passed against her making her liable for O.P.No.5588 of 2002 4 the amount that was found to be due from her deceased son. 4. In the above circumstances, the petitioner filed I.A.No.3839 of 2000 for setting aside the exparte award passed against her as stated above. However, as per an order dated 13.6.2001, evidenced herein by Ext.P7, the said petition has been dismissed finding that the petitioner had not shown sufficient reason for her non-appearance on 29.8.2000. Exts.P3,P4, P5, P7 and P8 are challenged in this writ petition by the petitioner. 5. Though notice has been served on the first respondent, there is no appearance for him. 6. I have heard Sri.Gopakumaran Nair, the learned counsel for the revision petitioner as well as the learned Government Pleader for the first respondent. I have also anxiously considered the contentions advanced by the rival counsel. 7. It is an admitted fact that Sri.K.V.Narayanan Nair was the owner of the car that was involved in the accident in which the first respondent sustained personal injuries. However, though notice was served on him in O.P.(MV) O.P.No.5588 of 2002 5 No.854/1990, he did not appear or contest the same. Therefore, an award was passed by the Motor Accidents Claims Tribunal making him liable for the compensation amount awarded, in excess of an amount of Rs.15,000/- for which the Insurance Company was held liable. Since he had remained ex-parte, his death was not brought to the notice of the Tribunal at the time of passing the award. However, the petitioner and one of her sons were made parties to the proceedings for Execution initiated for enforcement of the award of the Motor Accidents Claims Tribunal. In the Execution proceedings, the petitioner and her son appeared through counsel and pointed out that the award was passed against a dead person, that they were not parties to the original award and therefore, the Execution proceedings were dropped accepting their objections. It was thereafter that the petition to set aside the award and to condone the delay were filed before the Motor Accidents Claims Tribunal. As per Ext.P3 order, the delay in filing the said petition has been condoned for the reason that the first respondent had no knowledge of the death of Sri.K.V.Narayanan Nair. I do not find any grounds O.P.No.5588 of 2002 6 to interfere with the said order which is evidenced herein by Ext.P3. However, as per Exts.P4 and P5 orders, the Motor Accidents Claims Tribunal has allowed I.A.Nos.1122 of 1999 and 1120 of 1999 and has reviewed the original award that was passed. As per the modified award, the liability of her son has been fastened on the petitioner. Exts.P4, P5 and P8 orders have been passed without hearing the petitioner. Though a prayer for the grant of some time was made on her behalf, the same is alleged to have been disallowed. At any rate, Exts.P4, P5 and P8 orders do not state any reasons for reviewing the earlier award. 8. It was incumbent upon the Motor Accidents Claims Tribunal to have examined whether the petitioner, as the mother of late K.V.Narayanan Nair, was liable for the amount of compensation that was directed to be paid by her son. It is trite that any such liability could be fastened on the petitioner only if the petitioner has succeeded to the estate of the deceased. Before she could be fastened with any such liability, the above fact should have been established. She also had to be afforded an O.P.No.5588 of 2002 7 opportunity of being heard which also does not appear to have been given in the present case. Therefore, Exts.P4, P5 and P8 are vitiated and liable to be set aside. Though Ext.P6 petition was filed by the petitioner to set aside the exparte award passed against her, as I.A.No.3839 of 2000, the same has been dismissed by Ext.P7 order on the sole ground that she had not satisfactorily explained the reason for her absence on 29.8.2000. Ext.P7 order also does not state any reasons for rejecting the prayer of the petitioner for an opportunity to contest the award that was passed against her. 9. The Motor Accidents Claims Tribunal appears to have lost sight of the fact that the award was passed in the first place against a dead person though it is true that he had not contested the petition when he was alive. However, before his mother or brother could be mulcted with the liability for making payment of the amount due from the deceased, it had to be ascertained whether his mother or brother had succeeded to any property of his. The mother or brother could be made liable for the discharge of the liability of the deceased only to the extent O.P.No.5588 of 2002 8 of the estate, if any of the deceased, that has come into their hands. The above aspect of the matter has not been adverted to or considered by the Tribunal. It is also the specific case of the petitioner that the first respondent had not filed any petition for impleading the petitioner as a legal representative of the deceased and that they have been impleaded without any such petition. The above contention also does not appear to have been considered by the Motor Accidents Claims Tribunal. 10. For the above reasons, the impugned orders of the Motor Accidents Claims Tribunal, Manjeri, evidenced herein by Exts.P4,P5 and P7 as well as the modified award Ext.P8 are set aside. I.A.No.3839 of 2000 in O.P.(MV) No.854 of 1990 is allowed. The Motor Accidents Claims Tribunal, Manjeri is directed to consider and pass fresh orders on the petition filed by the first respondent for setting aside the abatement and if no impleading petition has been filed, after giving an opportunity to the first respondent to file such a petition. The question as to whether the petitioner could be made liable for the award passed against late K.V.Narayanan Nair by modifying the O.P.No.5588 of 2002 9 award passed against him shall be considered afresh, after affording an opportunity to the petitioner to contest any such application. Fresh orders as indicated above shall be passed in the matter as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The petitioner shall appear before the Motor Accidents Claims Tribunal, Manjeri on 1.12.2009. If the first respondent has no appearance, the matter can be decided after service of fresh notice on him. The petition is allowed on the above terms. No costs. K.SURENDRA MOHAN, JUDGE css/ O.P.No.5588 of 2002 10 K.SURENDRA MOHAN, J. O.P.No.5588 of 2002 JUDGMENT 6.11.2009