Justice Anand Venkatesh, judge of the Madras High Court
Justice Anand Venkatesh, judge of the Madras High Court
Litigation News

In "unusual order", Madras HC allows 23 insurance compromises arrived at during COVID-19 Lockdown on finding requisite "digital consent"

Justice Anand Venkatesh, however, clarified that the order should not be treated as a precedent for the future cases under normal circumstances.

Meera Emmanuel

The Madras High Court on Tuesday allowed the transfer of 23 motor claims from various Motor Accident Claims Tribunals in Tamil Nadu to itself, so that compromises entered into in these cases amid the COVID-19 lockdown between a private insurer and various claimants could be carried out.

"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 the rescue of the litigants and in particular, the innocent motor accidents victims."
Madras High Court

Notably, the Court acted on a memo filed by the insurance company, which included details such as the identities of the claimants, the claim amounts agreed to after negotiation, contact numbers, and affirmations as regards the consent obtained from the insured claimants.

Justice N Anand Venkatesh passed the order after being satisfied that there was sufficient material on record to attest that "digital consent" was obtained for the compromise terms via WhatsApp.

As regards those claimants who do not have access to the internet or technology, the Court recorded that the private insurance company had filed "affirmation that the claimants have been spoken to, and the amounts (were) agreed to by their clients."

In this backdrop, the Court remarked that it was satisfied that the insurer has provided satisfactory material to accept that the consent obtained are real and genuine. Thus, the order states,

"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."

Response of Courts cannot lag behind efforts taken by litigants: Madras HC

The Court was informed that the insurance company had decided to reach out to individual claimants through a panel advocate during the COVID-19 lockdown to see if their disputes could be settled, rather than wait for the pandemic to subside and for normalcy to return.

Recording his appreciation for this proactive approach, Justice Venkatesh remarked,

"I commend the insurer for taking these efforts and all the counsels who have contributed for the positive solution in culmination. Law has never failed to rise up to the situation. It moulds itself. But it requires the stakeholders to play their part too. The court is always willing to listen, adjust and accommodate, for the very purpose of its existence is to serve the Lady of Justice."
Madras High Court

The Court proceeded to emphasise that Lady Justice should always be ready to listen and respond to needs in such circumstances. The judge added,

"The response from this court cannot lag behind the efforts taken by the insurer, their counsel and the counsel for the claimants in Tamil Nadu, not to forget the victims who have lodged their claims. The victims/claimants also need to be warmly congratulated for their readiness and inclination to interact with their counsel and agree for the compromise of the claims. Give and take is inherent in the cause of justice, as this instance demonstrates to us."

Madras High Court

Procedure is the handmaid of justice: Madras HC on why there is no bar on entertaining the unusual memo

"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 it undeniably has in this case?"

Answering this question, the Court remarked that it was well settled now that the High Court will have the power to entertain such a plea for transfer in view of Section 24 of the Code of Civil Procedure, read with Article 227 of the Constitution of India.

All the same, the Court decided to detail in its order how the jurisdiction of the Court in such a case was backed by law, given that "the asinine quality of law of Doubting Thomases also needs to be answered, for the record."

Justice Venkatesh went on to clarify that routine procedure ordinarily mandated would not stand in the way of the residual powers conferred on the Court under Section 24, CPC and Article 227 of the Constitution to meet the ends of justice.

"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."
Madras High Court

The Court went on to explain further that,

"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 note, in the given facts and circumstances, the compelling need for the exercise of such power."

"Law is an art and a science", the Judge further remarked while pointing out that even old laws such as the 1897 Epidemic Diseases Act has been moulded now to be applied during the present pandemic.

"Law is never static and it keeps evolving and adjusts itself to the advances in technology. We cannot continue to live in the caves. We need to readily embrace technology whose growth has been exponential... We cannot keep relying on the past and archaic procedures and practices to deny ourselves, the benefit of technology."

Therefore, it issued directions to carry forward the compromises entered into in the 23 motor claims before it, altogether worth Rs 51,59,000.

"Viewed thus, this court is more than satisfied that the Memo filed by the insurance company would suffice and meet the requirements of today, for ordering the withdrawal of the MCOPs from the files of the respective Claims Tribunals to this court and for recording compromise, as entered into between the parties... The consents from the counsel for claimants meets the requirement of law, as permissible in the present difficult times."

The Court, however, clarified that this order cannot be treated as a precedent for when normalcy returns, when the regular procedure for recording a compromise should be followed.

Before parting with the matter, the Court also added,

"This court feels that the effort of the insurer and the claimants and their counsel can be replicated by other parties and counsel also. That this court was able to achieve this result without the need and benefit of any video conferencing commends itself for replication for other cases also. Where there is a Will, there is a Way. But, it is for us to Will, so that we may go the way in the cause of justice."
Madras High Court
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