SHAMEER Vs. JOSHY LAVYSON

JUDGEMENT

(1.) The present Original Petition under Article 227 of the Constitution of India is directed against the order dtd. 9/5/2022 passed in I.A.No.2 of 2022 in O.P.(MV) No.155 of 2022 by the Motor Accidents Claims Tribunal, Thodupuzha allowing the application of the claimant by directing the petitioner owner of the offending vehicle to furnish security of Rs.9,91,000.00 purported to be an order under Order 38 Rule 5 of the Code of Civil Procedure.

(2.) In respect of an accident taken place on 16/10/2021 at 7.45 AM whereby the respondent/claimant while riding a scooter bearing registration No.KL-38-J-1292 when reached Urakunnu junction met with an accident of a Goods Van Mahindra and Mahindra bearing registration No.KL-38-B-2142 and sustained injuries ie., appearing deformity left leg, fracture of Tibia Fibula Shaft left have become a disabled and claimed a compensation of Rs.9.00 lakhs vide petition dtd. 18/1/2022. Vide Ext.P2 interim application bearing No.2 of 2022 was also preferred by the claimant on the ground that the offending vehicle had no valid insurance at the time of the accident and the petitioner being the registered owner has an intention to dispose off the assets and it would be very arduous for the petitioner to seek the execution of the award proposed to be passed at an appropriate time and therefore sought the intervention of the Court for passing a conditional order as per provision prescribed under Order 38 Rule 5 of the Code of Civil Procedure.

(3.) Sri.George Mathew, learned counsel appearing on behalf of the petitioner submitted that learned MACT, did not wait for the service of notice on the application upon the petitioner herein, passed the impugned order. He submitted that provisions of Order 38 Rule 5 as per the provisions of Rule 395 of the Kerala Motor Vehicle Rules, 1989 is not applicable much less Rule 391A inserted vide notification dtd. 24/11/2018 as it pertains to only release of the vehicle involved in an accident by a Magistrate whereas the Magistrate is empowered to direct the owner of the vehicle to furnish a security in the absence of any insurance policy and insurance.