IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 WP(C).No. 35303 of 2009(G) -------------------------- OPMV.327/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... PETITIONER(S): 1ST RSPONDENT ---------------------------- DIPU, S/O. VARGHESE, AGED 21 YEARS, KALLANGATHARA HOUSE, KUREEKAD VILLAGE, THRIPUNITHURA, NADAMA, THEKKUMBAGHAM. BY ADV. SRI.NAVEEN THOMAS SRI.P.JIMMY JOHN RESPONDENT(S): PETITIONER AND 2ND RESPONDENT -------------------------------------------- 1. P.V.BIJU, AGED 30 YEARS, PATTACHERRIL HOUSE, PULICKAMALY, MULANTHURUTHY. 2. UNITED INDIA INSURANCE CO. LTD., CHITTOOR ROAD BRANCH, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No. 35303 of 2009 ================== Dated this the 8th day of December, 2009 J U D G M E N T In this writ petition, the petitioner is the owner of a motor vehicle involved in an accident which gave raise to O.P.(M.V) No.327/2002 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam, filed by the 1st respondent herein seeking compensation for the injuries suffered by him in the accident. Although the petitioner received notice in the O.P(M.V), he did not choose to appear before the Tribunal and contest the matter. The Tribunal awarded compensation to the 1st respondent. The petitioner was directed to deposit the award amount absolving the 2nd respondent- insurance company from liability to indemnify the petitioner. It appears that the 2nd respondent insurance company took the contention that since the 1st respondent was a pillion rider in the vehicle and the petitioner had not paid premium for covering pillion rider also, being a gratituous passenger, the insurance company is not liable to indemnify the petitioner in respect of the compensation payable to the claimant. When notice in the execution proceedings was received by the petitioner, the petitioner filed I.A.Nos.2147/09 and 2148/09 before the Tribunal for setting aside the ex parte award and condoning the delay of 652 days in filing the petition to set aside the ex parte award. The delay was explained by the petitioner stating that on receipt of W.P.C.35303/09 2 notice from the Tribunal in the O.P. the petitioner approached the insurance company, who informed him that it is not necessary for him to enter appearance since the vehicle is covered by an insurance policy. According to the petitioner, believing the same, the petitioner did not appear before the Tribunal. He knew about the award only when he received the notice in the execution petition is his contention. 2. A counter affidavit was filed by the insurance company before the Tribunal refuting the averment of the petitioner that the insurance company advised the petitioner that it is not necessary for him to appear and contest the matter since the vehicle was covered by a policy. The Tribunal did not choose to believe the petitioner's explanation for the delay. The Tribunal held that it is the duty of every party in a motor accident claim, on getting summons, to appear before the Tribunal and contest the matter, failing which, he stands the risk of shouldering the liability, if ultimately the Tribunal decides the case against him. The Tribunal also found that although the petitioner in this writ petition was declared ex parte, award was passed on merits evaluating the evidence adduced before the Tribunal and in such a situation , the remedy of the petitioner is to file an appeal. Ext.P1 is the order passed by the Tribunal in those interlocutory applications. That is under challenge before me. 3. I am not inclined to entertain this writ petition for more W.P.C.35303/09 3 than one reason. First is that I am unable to find any infirmity in the finding of the Tribunal that the petitioner has not properly explained the delay of 652 days in filing the application to set aside the ex parte award. The petitioner's contention that the insurance company advised him that it is not necessary to contest the claim cannot be accepted as a valid explanation for the delay, especially when the insurance company had come on record to refute the contention of the petitioner. Even otherwise, the petitioner is not actually disputing the quantum awarded. What he is disputing is absolving of the insurance company from the liability to indemnify the petitioner. The Tribunal absolved the insurance company relying on the decision of the Supreme Court in United India Insurance Co. Ltd. v. Tilak Singh [2006 (2) KLT 884 SC] and the decisions of this Court in Babu Mathew v. Biju Mathew [2008 (4) KLT 628] and Mathew Joseph v. Janaki & Others [2007 (1) KLT 296 FB]. The petitioner places reliance on the very same decisions of this Court. That being so, what the petitioner canvasses is only a question of law which can be appropriately canvassed in an appeal, as opined by the Tribunal. More over, for the dispute between the insurance company and the petitioner, the poor claimant cannot be allowed to suffer. In fact I even enquired with the counsel for the petitioner as to whether the petitioner is prepared to deposit the award amount in the Tribunal as a condition for setting W.P.C.35303/09 4 aside the award so that the claimant can be spared the ordeal of undergoing another protracted trial in the O.P(M.V), especially when what the petitioner is canvassing a question of law. The counsel for the petitioner was not inclined to agree to that suggestion. In such circumstances, I do not think that it would be just for this Court to deny the 1st respondent the benefit of the award by setting aside the ex parte award at this point of time, especially when the petitioner was at fault and he has also an alternate remedy by way of filing an appeal against the award itself. For the above reasons, I do not find any merit in this writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge