IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 OP (MACT).No. 378 of 2010(O) ---------------------------- OPMV.1387/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... PETITIONER ------------------------------ KUNHIVEETTIL MOHAMMED ASLAM, S/O.KHADERKUTTY, KUNHIVEETTIL HOUSE, CHERUVATHALAMOTTA, MANIYOOR, KANNUR DISTRICT. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------- 1. T.RAMESH BABU, S/O.KUNHAMBU, "MA" NIVAS, KOODALI.P.O., KANNUR DISTRICT-670012. 2. NAZAR.K., S/O.MAYANKUTTY, KARAKANDY HOUSE, CHEKKULAM, P.O.MANIYOR, KANNUR DISTRICT-670012. 3. THE TAHSILDAR, TALIPARAMBA-670 564. BY GOVERNMENT PLEADER SRI.S.ABDUL SALAM THIS OP (MACT) HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(MAC)No.378/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE I.A.NO.4948/09 IN OP (MV) NO.1387/04 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY. EXT.P2. TRUE COPY OF THE NOTICE DATED 21.1.2010 ISSUED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY. EXT.P3. TRUE COPY OF THE AWARD DATED 7.11.2008 PASSED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY IN O.P(MV)NO.1387 OF 2004 EXT.P4. TRUE COPY OF THE FIRST INFORMATION REPORT NO.4/07 DATED 3.1.2004 OF CHAKKARAKAL POLICE STATION. EXT.P5. TRUE COPY OF THE JUDGMENT DATED 6.1.2005 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY IN STC 90/04. EXT.P6. TRUE COPY OF THE NOTICE NO.E2.19272/2010/MACT DATED 3.9.2010 ISSUED BY THE 3RD RESPONDENT. / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- O.P(MAC).No.378 of 2010 ----------------------------------------- Dated this the 5th August, 2011 JUDGMENT Ext.P3 award passed by the Motor Accidents Claims Tribunal on 7.11.2008 and Ext.P6 order of attachment issued under the provisions of the Kerala Revenue Recovery Act, 1968 attaching an item of immovable property belonging to the petitioner in execution of that award are under challenge in this Original Petition. 2. The main contention put forward in the Original Petition is that Ext.P3 award is vitiated by fraud. It is also contended that the petitioner had no notice of the claim petition and therefore the award cannot be executed as against him. It is further contended that though the petitioner was prosecuted for the offences punishable under sections 279 and 338 IPC, in S.T. Case No.90 of 2004 on the file of the Court of the Chief Judicial Magistrate of Thalassery, in respect of the accident which gave rise to the case before the Motor Accidents Claims Tribunal, by Ext.P5 judgment he was acquitted and therefore the finding in Ext.P3 award that O.P(MAC).No.378 of 2010 -:2:- the accident took place as a result of the negligent driving of the vehicle by the petitioner cannot be sustained. Relying on Ext.P4 FIR it is contended that the name of the accused was shown as Kabeer thereby indicating that the vehicle was not driven by the petitioner. 3. Ext.P3 award discloses that respondents 1 and 2 in the claim petition, who were joined as parties to the claim petition on the allegation that they are the driver and owner respectively of the motor bike, which was involved in the accident, did not file a written statement. The first respondent therein is none other than the petitioner. The second respondent is the second respondent herein. Ext.P3 award also discloses that the petitioner and the second respondent herein, who were respondents 1 and 2 before the Motor Accidents Claims Tribunal, were represented by counsel. By Ext.P3 award, the Motor Accidents Claims Tribunal awarded the sum of Rs.1,39,500/- as compensation to the claimant (the first respondent herein) and directed the petitioner and the second respondent herein (respondents 1 and 2 in the claim petition) to pay the compensation amount, in view of the finding of the O.P(MAC).No.378 of 2010 -:3:- Tribunal that the first respondent in the claim petition (the petitioner herein) did not possess a valid driving licence on the date of the accident. The case set out by the petitioner in this Original Petition is that he had no notice of the claim petition before Ext.P3 award was passed. In view of the non-payment of the compensation awarded by Ext.P3, the claimant took steps under section 174 of the Kerala Motor Vehicles Act to execute the award by filing I.A.No.4948 of 2009 wherein he prayed for the issuance of a certificate to the District Collector, Kannur for realising the award amount. Ext.P1 is a copy of the said application. The petitioner has in the opening paragraph of the Original Petition admitted in categorical terms that Ext.P1 was served on him along with Ext.P2 notice. By Ext.P2 notice the petitioner was called upon to appear in the Motor Accidents Claims Tribunal on 20th March, 2010, the date on which I.A.No.4948 of 2010 filed by the claimant under section 174 of the Motor Vehicles Act stood posted for hearing. Paragraph 1 of the Original Petition reads as follows:- “1. The petitioner received a copy of O.P(MAC).No.378 of 2010 -:4:- I.A.No.4948 of 2009 in O.P (MV) No.1387 of 2004 issued by the Motor Accidents Claims Tribunal, Thalassery, directing the petitioner to remit an amount of Rs.1,39,500/- together with 7% interest with proportionate cost. In the said petition the petitioner was shown as the first respondent and one Nazar was shown as the 2nd respondent. It was stated in the said petition that as per the Award the respondents 1 and 2 were directed to deposit in court the amount of compensation. Copies of notice and the said petition are produced herewith and marked as Exhibits P1 and P2.” 4. The petitioner has no case that after receipt of Ext.P1 application and Ext.P2 notice he appeared before the Tribunal and appraised the Tribunal of the facts stated in the instant Original Petition or that he has taken steps to have Ext.P3 award set aside either by filing an appeal in this Court with a petition to condone delay or by instituting other appropriate proceedings. Incidentally it may also be noticed that the petitioner has no case in the Original Petition that Ext.P2 notice along with Ext.P1 application was served on him after 20th March, 2010. The Original Petition is totally silent as regards these aspects of the matter. A mere look O.P(MAC).No.378 of 2010 -:5:- at Ext.P6 order of attachment discloses that attachment of the immovable property belonging to the petitioner was effected only on 5th September 2010, nearly five months after the application filed by the claimant for execution of the award stood posted for hearing before the Motor Accidents Claims Tribunal after service of notice to the petitioner. It is thus evident that the petitioner was aware of Ext.P3 award passed against him at least in the month of March 2010. It is only on 18.10.2010, after Ext.P6 order of attachment was issued, that he moved this Court seeking the reliefs aforesaid. In my opinion as a person who was in the know of things at least by 20th March 2010, the petitioner ought to have taken steps to have Ext.P3 award set aside. The remedy available to the petitioner if he is aggrieved by Ext.P3 is to challenge it in this Court by filing an appeal after properly explaining the delay in filing the appeal. That having not been done he cannot, in my opinion, bypass the remedy available under the Act and invoke the jurisdiction of this Court under Article 227 of the Constitution of India to have the award set aside. So long as the award remains in force, the initiation of revenue recovery proceedings to O.P(MAC).No.378 of 2010 -:6:- recover the compensation awarded to the claimant cannot be faulted. Therefore, the challenge to Ext.P6 is without any merit. I accordingly hold that no relief can be granted in the instant Original Petition. It fails and is dismissed without prejudice to the right of the petitioner to challenge Ext.P3 award, if so advised in other appropriate proceedings. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P(MAC).No.378 of 2010 ---------------------------- JUDGMENT 5th August, 2011