IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 28860 of 2008(I) -------------------------- {IN IA 3752/2005 IN OPMV.1226/1999 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR} PETITIONER(S): -------------------------- VIJAYAKUMAR, S/O.CHAMY, KOLLANI HOUSE, KADAMBAZHIPURAM, PALAKKAD. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------------------- 1. CHANDRAN, S/O CHEKKU, THOPPIL HOUSE KALLUMPURAM, VADAKKUMURI, KADAVALLUR, THRISSUR 2. JAYA CHANDRAN, W/O.CHANDRAN, KALLUMPURAM VADAKKUMURI, KADAVALLUR, THRISSUR. 3. NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, PDC BANK BUILDING SULTHANPET, PALAKKAD, REP. BY ITS DIVISIONAL MANAGER. 4. DEPUTY TAHSILDAR (RR), OTTAPALAM, PALAKKAD. BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).No.28860 of 2008 ------------------------- Dated this the 15th day of October, 2008. JUDGMENT The 1st respondent in O.P.(MV)No.1226/99 on the file of the Motor Accidents Claims Tribunal, Thrissur. Respondents 1 and 2 filed the above petition for getting compensation, on the death of their son, who died in an accident on 24.12.1998 involving the vehicle driven by the petitioner herein. 2. The application filed by respondents 1 and 2 was allowed and Ext.P1 award was passed on 14.2.2001, requiring the insurance company to pay a compensation of Rs.90,000/- with 9% interest. The insurance company was directed to recover the amount from the petitioner on the ground that the driver was not having a badge at the time of accident. 3. It is to be noted that the driver was set ex parte. It seems that the petitioner came to know of the award only later, inasmuch as he was not served with notice of the proceedings in the O.P.(MV)No.1226/99. He, therefore, filed I.A.No. 3752/05 for setting aside the ex parte order, with an application for condonation of delay, which has W.P.(C).NO.28860 /08 :: 2 :: been rejected under Ext.P3 order. The same is challenged in this writ petition. 4. Learned counsel for the petitioner submits that the reason, which was found favour with the tribunal for making the driver liable for the compensation, does not seem to be sustainable in law, in the light of the law laid down by the Supreme Court in {National Insurance Company Ltd. v. Swaran Singh {2004(1) KLT 781 (SC)}. 5. There is no appearance on behalf of the 3rd respondent insurance company. 6. Learned counsel for the petitioner further submits that the compensation due to respondents 1 and 2 have already been disbursed. In these circumstances, I do not think, it is necessary to issue notice to the petitioners before the Motor Accidents Claims Tribunal. In the facts and circumstances of the case, it is only appropriate that the Motor Accidents Claims Tribunal considers the petitioner's application for setting aside the ex parte order. 7. Accordingly, Ext.P3 is set aside. The Motor Accidents Claims Tribunal, Thrissur shall reconsider I.A.No.3752/05 and pass fresh orders, W.P.(C).NO.28860 /08 :: 3 :: after hearing the insurance company also. Such orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. It is made clear that the award in favour of the claimants before the tribunal shall remain in tact. This direction to the Motor Accidents Claims Tribunal shall not result in an adverse finding insofar as the claimants are concerned. The reconsideration shall be confined to the issue between the driver of the vehicle owner and the insurance company. The Revenue Recovery proceedings initiated against the petitioner, as evidenced by Ext.P2, shall be kept in abeyance, till orders are passed by the Motor Accidents Claims Tribunal on I.A.No.3752/05. Writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge