IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 OP (MACT).No. 1256 of 2010(O) ----------------------------- IA.681/2010 of MACT,TRIVANDRUM .................... PETITIONER ------------------------------ SUPRABHA MOHAN, SUSMITHA BHAVAN, THEMBAMUTTAM, BALARAMAPURAM,THIRUVANANTHAPURAM. BY ADV. SRI.A.DINESH RAO RESPONDENT(S): --------------- 1. ESAKA MUTHU ACHARY TC-21/399, KARAMANA, THIRUVANANTHAPURAM-695002. 2. SHAJI G., S/O. GOPALAN, THAZHECHELAVUKODE MEKKUM KARA VEEDU, KOOVALASSERY, MARANALLOOR.P., THIRUVANANTHAPURAM-695003. 3. THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICER HOSPITAL JUNCTION NEYYATTINKARA.-695003. 4. THE DEPUTY TAHSILDAR, REVENEU RECOVERY NEYYATTINKARA-695003. BY GOVT. PLEADER SRI.BASANT BALAJI. THIS OP (MACT) HAVING COME UP FOR ADMISSION ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- O.P. (MACT) No. 1256 of 2010 ------------------------------- Dated this the 7th day of January, 2011 J U D G M E N T The petitioner was the first respondent in O.P.(M.V.) No.1285 of 2000 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram, a claim petition filed by the first respondent herein claiming a sum of Rs.1,50,000/- as compensation for the injuries sustained by him in a motor accident that took place on 26.2.2000. The petitioner who did not appear even after receipt of summons from the Motor Accidents Claims Tribunal was set ex parte. The Insurer contended that the validity of the policy issued in respect of the vehicle expired on 13.2.2000 and that the accident took place thereafter. By Ext.P4 award passed on 18.12.2003, the Tribunal directed the petitioner to pay the sum of Rs.35,750/- with interest thereon at 9% per annum from 25.9.2000 till realisation to the first respondent. Years later, when Ext.P4 award was put in execution and revenue recovery proceedings were initiated, the petitioner filed I.A.No.681 of 2010 under Order IX Rule 13 of the Code of Civil Procedure praying that the ex parte award passed on 18.12.2003 may be set aside. By Ext.P6 order passed on 31.8.2010, the Motor Accidents Claims Tribunal, Thiruvananthapuram, rejected the said O.P.(MACT) No.1256/2010 2 application. Ext.P6 is under challenge in this writ petition. 2. The petitioner contends relying on the entries in Ext.P1 extract from the Registration Certificate that she had transferred the vehicle to the second respondent on 22.12.1999 and that the second respondent had purchased the vehicle after availing finance from a private financier. The petitioner contends that in such circumstances, she is not liable to satisfy the Award. She submits that the lawyer whom she had engaged to represent her in O.P.(M.V) No.1285 of 2000 had assured her that the claim petition will be disposed of in her favour as she has sold the vehicle to the second respondent herein and she need not worry about the fate of the case. In Ext.P6 order passed by the Motor Accidents Claims Tribunal, the Tribunal has held as follows:- “5. The averment that no advocate filed vakalath for petitioner is correct. In fact, the proceeding paper shows that there was some representation by some counsel, regarding entering appearance for the petitioner herein. But no vakalath was filed by any advocate. Hence the petitioner was set exparte on 3.11.2003, that is, on the date of recording evidence. 6. The above facts show that the petitioner had enough knowledge about the case filed against him and that he was not at all vigilant in prosecuting the case. Had he been vigilant, he definitely would have made enquiries with the counsel whom, he had engaged, with respect to the case, filing of Vakalath, O.P.(MACT) No.1256/2010 3 written statement etc. If so, the petitioner cannot contend that there was no laches on his part. 7. A person of the nature of the petitioner is thus not entitled to seek any mercy. The discretionary power of court cannot be extended to him.” 3. The Tribunal has noticed that when the case was called on for hearing, a representation was made by some counsel (unidentified) to the effect that he has entered appearance for the petitioner. However, no vakalath was filed by the counsel who made that representation. The petitioner was therefore set ex parte on 3.11.2003. Ext.P5 application which was dismissed by Ext.P6 order was filed only on 24.1.2010, more than 6 years after the petitioner was set ex parte and Ext.P4 award was passed. 4. It is evident from the findings and observations made by the Motor Accidents Claims Tribunal that the petitioner has not entered appearance in O.P.(M.V.) No.1285 of 2000. It is evident from the conduct of the petitioner that she had never made enquiries for the past 7 years as regards the progress of the case. If, as claimed by the petitioner, she has transferred possession of the vehicle to the second respondent and the accident had happened thereafter, she should have taken care to ensure that she is not held liable by the O.P.(MACT) No.1256/2010 4 court to pay compensation. It is evident from the conduct of the petitioner that she was not vigilant in defending the claim petition. Apart from blaming the lawyer, the petitioner has not stated that she was frequently contacting the lawyer. Instead, the only averment in the application is that though she had engaged a lawyer, the lawyer did not enter appearance or inform the Tribunal of the fact that the petitioner had sold the vehicle to another person. Further, the victim of the accident was a 70 year old man. More than a decade has passed after the accident took place. If, at this distance of time, Ext.P4 award is set aside, the claimant will be put to serious prejudice. For that reason also, I am not inclined to interfere with Ext.P6. The writ petition fails and is accordingly dismissed. P.N. RAVINDRAN, JUDGE. nj.