WITHDRAWAL AND TRANSFER OF MCOPS TO FACILITATE COMPROMISE ARRIVED AT BETWEEN INSURER AND CLAIMANTS DURING COVID-19 LOCKDOWN – PERMISSIBILITY

WITHDRAWAL AND TRANSFER OF MCOPS TO FACILITATE COMPROMISE ARRIVED AT BETWEEN INSURER AND CLAIMANTS DURING COVID-19 LOCKDOWN – PERMISSIBILITY

During lock down period compromise can be done without physical presence of the parties and without following usual strict procedures.

Exercise of power of high court to facilitate compromises arrived at during COVID - 19 lockdown has been discussed in 2020(1) TNMAC 689  cholamandalam MS general insurance co.ltd.,  VS   N.Parthiban and another.

It has been discussed as under:

These are unusual times. This is an unusual order. It is sheer force of circumstances, which the entire world is witnessing, not just Chennai or india alone, that has impelled and compelled this court to take note and come to rescue of the litigants and in particular, the innocent motor accidents victims. The peculiar scenario in which the viral pandemic has placed us in, has necessitated and warranted the exercise of available jurisdiction of this court, to aid the cause of justice.

The consolidated memo, with the list of petitions pending on the file of various claims tribunals in the state of tamilnadu, have been filed by a private sector insurer. The memo have been filed under section 24 of CPC read with article 227 of the constitution of india.

The insurer has submitted that instead of waiting for the pandemic to cease and the lockdown to be lifted and normality to return, they choose to avail the time, to explore the possibility of reaching a compromise, through the services of panel advocates of theirs. The said counsel along with officials of petitioner / insurer reached out across tamilnadu, to various counsel for claimants, and negotiated compromise in 23 MCOPs, the list of which is annexed to the memo.

A reading of the memo along with the list of MCOPs, with the necessary details of the claim numbers, the courts before which they were pending, the claim amounts. The identity of the claimants and the amounts reached in compromise, are provided along with the names of the respective counsel for the claimants, with their mobile numbers. The insurer has affirmed that the details furnished are true and the respective claimants counsel have given their digital consent thro’ whatsapp messages (which also form part of the details furnished with the list) and they have reached out their clients and taken their consent as well. Not all the claimants have the benefit of access to digital media or internet services. Hence the counsel for the claimants have replaced the consent of their clients with their affirmation that the claimants have been spoken to, and the amounts agreed to by their clients. The insurer of course, has agreed for the sums and indicated so in the memo itself and the list is also sent by the insurer.

From the above delineation of facts, it is clear and evident that the 23 MCOPs have been negotiated for compromise and the consenting parties are ad idem on it. This court is satisfied that the insurer has provided satisfactory material to accept that the consent obtained are legal and genuine, and the respective claimants and their counsel are agreeable for the amounts reached in compromise and are ready for recording of compromise decree in terms thereof. There is no cause for any doubt in this regard and the manner and procedure adopted by the parties to provide proof of their consent is satisfactory, given the peculiar circumstances of the case.

What remains is the exercise of powers of the court, to give its assent for the compromise to fructify. The claims are pending before motor accidents claims tribunals in tamilnadu. Harking back to judicialhistory, it would appear that since they were ‘Tribunals” doubts were raised whether they had all the ‘trappings of a civil court’, for exercise of section 24 of CPC for ordering such withdrawal to this court or transfer to any other tribunal within the state.

The debate now stands settled for all practical purposes. It is now admitted and agreed that section 24, CPC in relation to transfer within the state and section 25, CPC for transfer by the hon’ble supreme court, across the states, do apply for withdrawal and transfer of motor accidents claims petitions. Any lingering doubt in this regard was settled unequivocally by the apex court in state of Haryana V. Darshana devi, aiR 1979 SC 855;  Anand kumar jain V. Union of india, AIR 1986 SC 1125; and Bhagwati Devi V. goel, 1983 ACJ 123 (SC)

Even otherwise, this court had ruled that in case of even a semblance of doubt as to the innovation of section 24, CPC, the constitutional power under article 227 – power of superintendence of high court over all subordinate courts, would would come to the rescue to order so. Useful reference can be made to Rajeswari V. United india insurance co.ltd., 1994 (1) MLJ

Thus there is no difficulty now to readily concede that this court has the power and jurisdiction to entertain the memo filed by the petitioner / insurer under section 24, CPC read with article 27 of the constitution. Be that as it may, the asinine quality of law of doubting  Thomases also to be answered, for the record.

Can the memo replace the usual format of an affidavit accompanied by a petition and that too a consolidated memo of this genre for all 23 MCOPs?Is there a mandated procedure that needs to be adhered to, for this court to exercise its jurisdiction, which is undeniably has in this case? The answer is plain and simple and that is “procedure is the handmaid of justice” and it cannot take away the residuary power in judges to act ex debito justitiae, where otherwise it would be wholly inequitable.

A reading of section 24, CPC  makes it clear that the power is not  available for exercise only ‘upon an application’. It can be exercised, upon the court coming to know of the need for such exercise. For invoking the power under section 24, CPC, no notice to the parties would be necessary. This court can, on its own, order such withdrawal or transfer, to meet the ends of justice. There          cannot be a fitter case than the present, for invocation of this power. Failure to exercise such power, at this instance, would be possible abdication of responsiveness. Assumption of jurisdiction is the need of the hour. And this court is unhesitatingly ready and agreeable to do so. There is no prescribed format for the same. There is no bar for the high court to take notice, in the given facts and circumstances, the compelling need for the exercise of this power. The filing of petition in the given format or upon affixing requisite court fees etc or a memo or a consolidated memo in this case, all answer the requirement of law. They do not suffer from any vice or inadequacy in order not to accept the memo filed by the petitioner/insurance company.

The cout cannot be immune or oblivious of the pandemic times. The judiciary is in a virtual lockdown except for access through the virtual frame in its video conferencing avatar. This is not a satisfatory  tool a experience show. The court feels that the effort of the insurer and the claimants and their counsel can be replicated by other parties and counsel also. The court was able to achieve this result without the need and benefit of any video conferencing commends itself for replication for other cases also.