IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 MACA.No. 2356 of 2008() ----------------------- OPMV.107/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER: ------------------------- K.P.PAILY, AGED 70, S/O.K.P.PURAVATH, KUNNASSERIL HOUSE, MADIRAPPILLY KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.LELLULAL T.G.THUNDATHIL SRI.M.R.DHANIL RESPONDENT(S): RESPONDENTS: --------------------------- *1. BINU N.JACOB, MOOLAMKUZHIYIL HOUSE, VAZHAPPILLY KARA, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 1. UNNIKRISHNAN, S/O.KRISHNAN, THURAVACHAL HOUSE, KADATHY KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 3. M/S.ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, MOOVATTUPUZHA. (R1 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 20/1/2009 IN I.A.NO.85/2009) ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.2356 of 2008 ---------------------------------------- Dated this the 17th day of February 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. He had claimed an amount of Rs.4,00,000/- as compensation for personal injuries suffered by him in an accident which took place on 25/5/2002. It is evident that his case was not prosecuted properly before the Tribunal. Once an application was filed for permission to withdraw the original petition with leave to file another petition for the same cause of action. That application was dismissed by Annexure 2 order dated 14/11/2007. Long later, the impugned award was passed dismissing the claim as not pressed in the light of the memo filed by the learned counsel for the petitioner. 2. The learned counsel for the appellant submits that the appellant had not instructed the counsel and evidently without the knowledge and consent of the appellant, the “not pressed” memo has been filed. The counsel impassionately prays for a further opportunity to the appellant to prove his contention and claim compensation which is admissible under law. 3. The respondent insurer has entered appearance. He opposes the application vehemently. The learned counsel for the M.A.C.A.No.2356/08 2 insurance company submits that it is possible to read between the lines and conclude that the appellant has no reasonable claim to be advanced. He has made conflicting assertions about the accident. At any rate, the claim is without any merit and the same does not deserve any indulgence of the court, argues the learned counsel. 4. We shall not, at this stage, express any opinion on the maintainability of the claim or the justice for the claim for compensation made by the appellant. Suffice it to say that, on an anxious consideration of all the relevant circumstances, we deem it appropriate that the appellant must be given an opportunity to prosecute his claim and adduce evidence in support of such claim. We do not intend to express any opinion on the admissibility of the claim; but only state that we are satisfied that subject to appropriate safeguards, the appellant can be given an opportunity to prosecute his petition. We are not going into the question whether the learned counsel for the appellant had filed the memo with due authority of the appellant or not. Suffice it to say that, we deem this to be a fit case where indulgence can be shown to the appellant to prosecute his claim. However, we take note of the anxieties expressed by the learned counsel for the respondent. We are satisfied that appropriate condition can be imposed while granting the request of the appellant. M.A.C.A.No.2356/08 3 5. In the result, a) This M.A.C.A is allowed. b) The impugned award shall stand set aside and the appellant shall be given an opportunity to prosecute his claim on condition that the appellant deposits an amount of Rs.2,000/- (Rupees two thousand only) before the Tribunal as security for costs. While disposing of the O.P that amount shall be reckoned as security for cost of the respondent and appropriate order shall be passed for release of the amount in the discretion of the Tribunal. Such amount shall be deposited before the Tribunal on or before 17/3/2009. Parties shall appear before the Tribunal on 18/3/2009. If the security for cost is not deposited, the Tribunal shall make note of that fact on 18/3/2009 and the impugned award shall revive in that event. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.2356/08 4 M.A.C.A.No.2356/08 5 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009