IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 20186 of 2009(P) -------------------------- OPMV.654/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... PETITIONER(S): --------------- CHARLES P.CHANDY,S/O.LATE CHANDY, CHARLES BHAVAN,KOHINNUR DESOM, THENJIPPALAM AMSOM,THIRURANGADY TALUK, MALAPPURAM. BY ADV. SRI.LIJU. M.P RESPONDENT(S): --------------- 1. ARUMUGHAN,S/O.KANNAN,CHELAKKORAMADU P.O. PATHARAPPALLIKKAN VIA,THENJIPPALAM AMSOM, MALAPPURAM. 2. THE NEW INDIA ASSURANCE CO.LTD., I.B.ROAD BRANCH,ROVER PLAZA,KOZHIKKODE. 3. PADMINI,W/O.LATE KUTTAPPAN, KAZHAKUTH HOUSE,ATHIPOTTA, ALATHUR,PALAKKAD. 4. VISHNU,S/O.LATE KUTTAPPAN, -DO- -DO- 5. SURESH GOPI,S/O.LATE KUTTAPPAN, -DO- -DO- 6. GEETHU,D/O.LATE KUTTAPPAN, -DO- -DO- ADV. SRI.VIJU THOMAS FOR R2 SMT.M.MEENA JOHN FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.20186 of 2009 ================== Dated this the 8th day of September, 2009 J U D G M E N T The petitioner herein is the owner of a vehicle which was involved in an accident, in respect of which, the father of respondents 3 to 6 filed O.P(M.V.).No.654/2001 before the MACT, Palakkad, which was prosecuted by respondents 3 to 6 on the death of their father. Compensation was awarded by Ext.P1 award on the ground that the driver did not have a valid licence. The Tribunal permitted the 2nd respondent to recover the amounts to be deposited by them from the petitioner. The petitioner submits that the petitioner did not participate in the proceedings before the MACT on the bona fide belief that since the vehicle was covered by an insurance policy, compensation had to be paid by the insurance company. According to him, since the driver did have a valid licence at the time of accident, the owner was not liable and, therefore, the insurance company was liable to indemnify the petitioner in respect of the compensation amount. It was long after the award was passed the petitioner came to understand that the insurance company was permitted to recover the compensation paid by them from the petitioner. Therefore, the petitioner filed an application to set aside the ex parte award with a petition to condone delay of 636 days in filing the same. The Tribunal, by Ext.P5 order, 2 dismissed the application to condone the delay as well as the petition to set aside the ex parte award. That is under challenge before me. 2. It is submitted before me that the insurance company has already deposited the amount and the claimants have already withdrawn the amounts. 3. The counsel for the insurance company stoutly opposes the writ petition. According to him, no reasonable explanation has been offered by the petitioner for non appearance before the Tribunal and for the inordinate delay of 636 days in filing the application to set aside the ex parte award. 4. After hearing both sides, I am not quite satisfied with the reasons stated by the petitioner for his failure to appear before the Tribunal and for the delay in approaching the Tribunal for setting aside the ex parte award. However, in so far the question is only as to whether the driver had a valid driving licence, I am of opinion that a lenient attitude should be adopted in the matter and the petitioner should be given another opportunity to prove that fact. Accordingly, Ext.P1 to the extent it permits the insurance company to recover the amounts from the petitioner and Ext.P5 order refusing to set aside the ex parte award are quashed. The matter is remanded to the Tribunal for fresh consideration only on the question as to whether the driver had a valid driving licence at the time of accident so as to absolve the 3 insurance company from the liability. The Tribunal shall consider that issue afresh and enter a fresh finding on the basis of the evidence to be adduced by the petitioner in respect thereof. The Tribunal shall pass a supplementary award on this issue, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgement. However, as a condition for setting aside the award as above, the petitioner shall pay an amount of Rs.5000/- as costs to the insurance company within two weeks. If the costs is not paid as directed above within two weeks, the petitioner would not be entitled to the benefit of this judgement and the writ petition would stand dismissed. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge