P T JOSE, S/O THOMAKUTTY Vs. BOBY K J , UNITED INDIA INSURANCE COMPANY LTD , M K NARAYANANKUTTY AND THAHSILDAR (RR)

JUDGEMENT

(1.) The Petitioner herein, the first Respondent in O.P.(MV) No. 1713 of 2000 on the file of the Motor Accidents Claims Tribunal, Kottayam, has filed this writ petition challenging Ext.P7 order dated 11.3.2010 passed by the Motor Accidents Claims Tribunal, Kottayam, rejecting I.A. No. 3102 of 2009 filed by him to set aside the ex parte award passed in O.P.(MV) No. 1713 of 2000 and IA. No. 3101 of 2009 to condone the delay of 4 years 6 months and 22 days in filing I.A. No. 3102 of 2009. The brief facts of the case are as follows.

(2.) The first Respondent herein filed O.P.(MV) No. 1713 of 2000 in the Motor Accidents Claims Tribunal, Kottayam claiming compensation for the injuries sustained by him in an accident that took place on 5.7.2000 when the autorickshaw, bearing registration No. KL-5/G-3868, driven by him collided with a motor car bearing registration No. KL-7/V 9747, which admittedly belonged to the Petitioner, but had been sold by him on 2.3.2000 to the third Respondent herein. In the claim petition, the transferee of the car was not made a party but the Petitioner herein, the original owner, was made a party.

(3.) The Petitioner received notice of the claim petition on .2.2001. The date fixed for appearance was 23.2.2001. He states that though after receipt of summons he had made necessary arrangements to engage a counsel to conduct the case on his behalf, shortly thereafter he received a letter from the insurance company to the effect that the insurer will engage an Advocate of their choice for and on his behalf also, that on receipt of the said letter he executed a vakalatnama, filled up the printed proforma enclosed along with the letter and handed them over in the office of the second Respondent at Kottayam and that the officer who received the said documents acknowledged receipt of the same on a copy of the letter sent by the insurer. It is also stated that the Petitioner had even earlier sent Ext.P1 letter dated 17.2.2001 to the office of the insurer at Ernakulam stating that he has sold the vehicle to the third Respondent herein. Since the Petitioner did not appear on 23.2.2001 or thereafter he was set ex-parte. Later an award was passed on 31.12.2004 directing payment of the sum of Rs. 2,24,970/- with interests and costs. The Tribunal, on an analysis of the evidence-oral and documentary, held that the driver of the car did not have a valid driving licence. Therefore, even while directing the insurer to pay the compensation awarded by the Tribunal, the Tribunal observed that it will be open to the insurer, after effecting the payment, to recover the compensation paid by it from the Petitioner. The insurer paid the compensation to the claimant and thereafter filed E.P. No. 272 of 2005. The Petitioner admittedly received notice in the execution petition. The case of the Petitioner is that though thereafter he had engaged a lawyer practising at Kottayam to take steps to file an appropriate application to have the ex parte award set aside after condoning the delay, the lawyer fell ill and was laid up due to multiple organ failure and later passed away. The Petitioner states that while matters stood thus he received Ext.P5 notice under Sections 33 and 7 of the Kerala Revenue Recovery Act, 1968 demanding payment of the sum of Rs. 2,96,411/- with interest, that he had in the meanwhile filed Exts.P3 and P4 applications through another lawyer to set aside the ex parte award and to condone the delay of 4 years 6 months and 22 days in filing the application to set aside the ex parte award. By Ext.P7 order which is impugned in this writ petition, the Tribunal dismissed both the applications. Hence this writ petition.