The petitioner is aggrieved with the recovery proceedings initiated against the petitioner in pursuance of an award in which the petitioner was arrayed as first respondent and wherein the violation of policy, alleged by the Insurance Company, was found and the liability mulcted on the petitioner, as the registered owner. The petitioner's contention is that the petitioner had, in fact, transferred the vehicle as early as on 10.10.1999 as is evidenced from Ext.P6. The petitioner challenges Ext.P10 order passed by the Tribunal, in his application for setting aside the ex-parte award and condonation of delay; both of which were dismissed. 2. Primarily it is to be noticed that the delay was of 2336 days. The petitioners contention was that the petitioner was not aware of the initiation of the claim petition, since he received no notice. The petitioner came to know of the claim and the award only when the execution proceedings were initiated. The Tribunal elaborately considered the issue by Ext.P10. Admittedly, no documents were produced before the Tribunal to substantiate the contention that the petitioner was abroad at the time when the claim was instituted and notice was taken out.
3. In fact, a reading of Ext.P10 order would indicate that the petitioner was first issued with notice in the claim petition, which was received by him. Subsequently on the Insurance company raising the contention of violation of policy, on the ground of the driver having no licence; the petitioner was issued with another notice calling for production of the drivers' licence. This was also, not responded to, by the petitioner. Despite the petitioner relying on Ext.P8 series of documents, being the photocopies of the cover, which was sent back to the Tribunal, that alone, cannot substantiate the contention of the petitioner being abroad at the relevant time. The registered cover, in which the notice was issued, was returned with the endorsement “ left India”. That could also be a deliberate attempt to evade service of notice.
4. The learned counsel for the petitioner submits that the entire documents were produced in the execution petition pending before the Tribunal. However, no such documents were produced in the application filed for setting aside the ex-parte award. The Tribunal is not expected to look into the execution petition and ferret out documents, which would substantiate the contention of the petitioner in the application to set aside the ex-parte award. In such circumstance, the Tribunal cannot be faulted for having rejected the application filed by the petitioner.
5. However, it is to be noticed that the petitioner has prima facie by production of the copy of the Registration Book established that the ownership of the vehicle was transferred and such transfer endorsed in the registration book before the date of the accident. It is also evident that the notice issued by the Tribunal had been returned without service and ideally the claimants ought to have been directed to take out paper publication. But, however, the gross delay caused and the failure to substantiate his contentions, by leading proper evidence before the Tribunal, cannot be easily condoned.
6. If the petitioner deposits the entire claim amount along with interest, within three months from today before the Tribunal, Ext.P10 shall stand set aside. The petitioner, shall then, file an application to implead the registered owner, to whom the vehicle was transferred on 10.10.1999 and shall take out process thereon and in that event, the Tribunal shall re-open the evidence only to consider the question of liability, i.e, whether it has to be mulcted on the insurer or the insured. The deposit made before the Tribunal shall depend upon the result of the final decision by the Tribunal. It is made clear that the interest liability from the date of award till today shall be the liability of the petitioner herein. If the petitioner is absolved from the liability, then refund shall be made only after deducting the interest portion as directed herein above from the deposit made. Since the Insurance Company has already paid the award amount to the claimants, the claimants need not be dragged back to the Tribunal and the insurer, the petitioner and the registered owner alone need be heard in deciding the matter. The ex-parte award shall be set aside only to the extent of the liability being fixed on the petitioner herein, which issue alone shall be considered afresh.
Writ petition is disposed of with the above observations.
jma //true copy// Sd/-
(K. VINOD CHANDRAN, JUDGE) P.A to Judge