The petitioner was the driver and registered owner of a vehicle; which was involved in an accident. Admittedly notice was issued to the petitioner in the claim petition which was filed before the Motor Accidents Claims Tribunal, Thrissur and the petitioners failed to appear before the Tribunal. An award was passed ex-parte as evidenced by Ext.P2, in which violation of policy conditions were found and the insurer was absolved from the liability. Insurance Company, however, paid the amounts to the claimants and as entitled to in the award, proceeded against the petitioner for recovery. The petitioner hence filed an application before the Tribunal, to set aside the ex-parte award and to re-open the case so as to produce the documents, the absence of which led to an inference of violation of policy conditions. 2. The learned Senior Counsel appearing for the respondent Insurance Company, would contend that, in fact the Insurance Company had taken a specific plea of violation of policy as also filed an application for production of documents, namely, the permit and the license. The Insurance Company having paid the amounts to the claimants would definitely be entitled to recover the same on the violation having been inferred by the Tribunal. The learned Senior Counsel also submits that even in the writ petition, the license produced as Ext.P6 does not show that the petitioner had a license to drive a Heavy Goods Vehicle which had been involved in the accident. It is also brought to the notice of this Court that there is no permit produced before this Court which would necessitate a remand.
3. The learned counsel appearing for the petitioner however, would contend that, since the vehicle was sold, the petitioner could not obtain the permit immediately, and if a remand is made the petitioner would produce the same before the Tribunal. The petitioner's contention also is that the license produced herein would entitle him to have been validly licensed to drive the subject vehicle.
4. The Tribunal dismissed the application for setting aside the ex-parte by Ext.P5. In Ext.P5, the Tribunal has found that the remedy for the petitioner is to file an appeal against the award, which according to this Court, is not a proper consideration of the application. In fact, the Tribunal ought to have considered the application for setting aside the ex-parte award, which is permissible under Order 9 Rule13 of the Code of Civil Procedure which provision is applicable to the proceedings before the Claims Tribunal as per Rule 395 of the Kerala Motor Vehicles Rules, 1989. But however, the delay on the part of the petitioner to approach the Tribunal and the non-appearance when notice was issued to him cannot be condoned; but on terms. In such circumstance, the petitioner shall remit an amount of Rs.3,000/- before the Kerala Mediation and Conciliation Centre and also deposit Rs.1,25,000/- before the Tribunal towards the claim amount and on such deposits, OPMV No.462/2004 would stand restored to the files of the Motor Accidents Claims Tribunal, Thrissur only to the extent of deciding the liability to the insurer. Ext.P5 also would then stand set aside. It is made clear that there shall be no necessity to issue notice to the claimants. Re-opening of the case is only for deciding on the violation of policy conditions, for which both parties shall be entitled to produce evidence. The deposits as directed above shall be made on or before 20.11.2014, failing which Ext.P5 shall stand confirmed, and so shall the award be final.
5. Writ petition disposed of on the above conditions.
If the Tribunal eventually finds the violation of policy conditions to have been proved,then, necessarily the amounts deposited shall be disbursed to the Insurance Company and the Insurance Company shall also be entitled to proceed for recovery of the balance amounts from the petitioners. If the liability is found to be on the insurer then necessarily, the amounts deposited shall be refunded to the petitioners. It is made clear that this Court has not found on the merits with respect to the contentions of either parties and has herein, merely recorded the rival contentions.
Writ petition disposed of.
jma //true copy// Sd/-
(K. VINOD CHANDRAN, JUDGE) P.A to Judge