IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 73 of 1998(B)
1. THANKAMANI
... Petitioner
Vs
1. P.MADHAVAN NAIR
... Respondent
For Petitioner :SRI.P.K.ASHOKAN
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :09/10/2007
O R D E R
K.PADMANABHAN NAIR, J.
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M.F.A. NO. 73 OF 1998
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Dated this the 9thday of October, 2007
J U D G M E N T
Petitioners in O.P(MV) 75/87 on the file of Motor Accidents
Claims Tribunal, Thrissur, are the appellants. The 1st appellant is the
widow and other appellants are the children of one Narayanan
Chettiar, who died on 6.6.76 in a motor vehicle accident. The
deceased was aged 26 years. The appellants initially filed an original
petition as O.P. 2 of 1977 before the Motor Accidents Claim Tribunal,
Thrissur, which was transferred to MACT Ernakulam camp and
renumbered as O.P. No.122/1980. That petition happened to be
dismissed for default on 15.10.80. Thereafter the appellants filed
O.P(MV) 75/87 from which the present appeal arises.
2. The appellants alleged that the accident occurred due to the
negligence on the part of the 3rd respondent, who was the driver of
the vehicle. The 1st respondent filed a written statement contending
that there was no negligence on the part of the driver. He contended
that even if the appellants were entitled to get any compensation, the
same is to be paid by the 2nd respondent insurer, as the vehicle was
covered with a valid policy of insurance. The 2nd respondent
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admitted the existence of a valid policy. But it was contended that
their liability was limited to Rs.30,000/- towards third party injury and
death liability of Rs.5,000/- to the passengers who were traveling in
the vehicle. The driver did not appear and contest the matter. The
Tribunal found that the accident occurred due to the negligence of
the driver. Tribunal also found that there was delay in filing the
original petition but the same was condoned. The original petition
was dismissed on the sole ground that it is barred by res judicata.
3. Ext.B2 judgment shows that the earlier application was
dismissed for default and there was no adjudication in the claim on
merits. So the Tribunal went wrong in holding that the decision in the
earlier petition will operate as res judicata. The claim is not barred
by Order II Rule 2 also as it is an original petition and not a suit. So
the finding of the Tribunal that the appellants are not entitled to any
compensation is illegal and liable to be set aside.
4. The next question that arises for consideration is what
exactly is the quantum of compensation to which the appellants are
entitled. It is to be noted that the accident occurred as early as on
6.6.76 and more than 21 years have elapsed since the date of the
accident. So I do not think it just and proper to remand the matter
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again for adjudication for the quantum of compensation due to the
appellants.
5. Since the accident occurred prior to the amendment, the
appellants are not entitled to get compensation under no fault liability.
But in any event the quantum of compensation will not be less than
Rs.25,000/-. So, only for the sake of giving a finality to the matter, I
am holding that the appellants are entitled to a lump sum amount of
Rs.25,000/- as an ex gratia payment. That amount will carry an
interest at the rate of 7% from the date of petition till the date of
deposit.
In the result, MFA is allowed. The award passed by the
Tribunal dismissing the O.P(MV) 75/1987 is hereby set aside. An
award is passed in favour of the appellants allowing them to recover
an amount of Rs.25,000/- with interest at the rate of 7% from the
date of original petition till the date of deposit. The insurer is directed
to deposit the amount. On deposit, the appellants are entitled to
withdraw the entire amount.
K.PADMANABHAN NAIR, JUDGE
vps
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