IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WA.No. 2737 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.11853/2000 Dated 07/06/2006 .................... APPELLANT(S): IST RESPONDENT IN OP: ------------------------------------------------------------- UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. MR.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT(S): PETITIONERS & RESPONDENTS 2 TO 4 IN OP: ----------------------------------------------------------------------------------------------- 1. D.S.ROSLIND, W/O.ANDREW, D3, EXCEL WEST, 33, KRISHNAPURAM DISTRICT, CHEELAIMEDU, CHENNAI-600 094. 2. A.PREMKUMAR, S/O.ANDREW, D3, EXCEL WEST, 33, KRISHNAPURAM DISTRICT, CHEELAIMEDU, CHENNAI-600 094. 3. A.DOMINIC, S/O.ANDREW, D3, EXCEL WEST, 33, KRISHNAPURAM DISTRICT, CHEELAIMEDU, CHENNAI-600 094. 4. CATHRINE JAYASSEELL, D/O.ANDREW, D3, EXCEL WEST, 33, KRISHNAPURAM DISTRICT, CHEELAIMEDU, CHENNAI-600 094. 5. THE DISTRICT COLLECTOR, CHENNAI. 6. THE DISTRICT COLLECTOR, ERNAKULAM. 7. THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM. R2 & R3 BY ADV. MR.K.K.MOHAMED RAVUF THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY, Ag.C.J. & V.GIRI, J. -------------------------------------- W.A.No.2737 of 2007 and C.M.Appl.No.1251 of 2007 ------------------------------------- Dated 30th January, 2009 JUDGMENT Koshy, Ag.C.J . C.M.Appl.No.1251 of 2007 is a petition to condone the long delay of 478 days in filing the appeal. The writ petitioners' father who was employed in Tamil Nadu Government Service died in a Railway accident and the petitioners filed O.P.(M.V)No.1328 of 1980. By award dated 28.2.1986, the Motor Accidents Claims Tribunal allowed only an amount of Rs.36,200/= with 6% interest as compensation and found that the accident occurred due to the negligence of the driver of the motor vehicle and the train and both the owner of the vehicle and the Railway were held jointly and severally liable to pay the compensation. The Insurance company preferred an appeal and in the appeal, the award was confirmed with a modification by which the liability of the Insurance Company of the motor vehicle was limited to Rs.5,000/= in view of the specific clause in the insurance policy as can be seen from the decision in United India Insurance Co. Ltd. v. Premakumaran (1987 (2) K.L.T. 817). The Railway approached the Supreme Court challenging the joint and several liability cast on the railway and the Hon'ble Supreme Court dismissed the appeal. That judgment was reported in Union of India v. United India Insurance Co. Ltd. 1997(2)KLT 986). Even though joint and several liability was specifically found in the judgment of the High Court as W.A.2737/2007 2 well as Supreme Court, the entire amount was not paid. According to the appellant, only 50% of the amount with interest need be paid by the Railways as both drivers were found negligent despite the judgment by this court and Apex Court. Learned Judge held that after paying full amount deducting Rs.5,000/= paid by the insurance company, amount in excess of 50% liability can be realised from the owner and driver of the motor vehicle. Death occurred in 1980 and it is unfortunate that Railway in spite of being a public sector undertaking, was contesting the case for a long time, that too, for a paltry amount though the matter is concluded by the judgment of the Supreme Court. Dependents of the deceased were dragged to Apex Court and for getting the amount they had to again file a writ petition. In any event, absolutely no valid reasons are stated by the Railways to condone the long delay of 478 days in filing the appeal. The fact that there was a change of empanelled lawyer before pronouncement of the judgment in the writ petition etc. are not valid and satisfactory grounds for condoning the long delay, that too in a case of this nature. Hence, the delay condonation petition is dismissed. Consequently, the appeal is also dismissed. J.B.KOSHY ACTING CHIEF JUSTICE V.GIRI JUDGE tks