IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 6656 of 2009(B) ------------------------------------- OPMV.1871/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... PETITIONER(S): ----------------------- P.V. PREMA, PREMA NIVAS, PERUMBADAVU, P.O.KARIPPAL VIA, CHAPPARAPPADAVU, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN, SRI.V.VENUGOPAL. RESPONDENT(S): ------------------------- 1. T.AJITH KUMAR, S/O.RAGHAN, JANAKI NIVAS, P.O.CHENGALAYI, SREEKANDAPURAM. 2. V.J. SEBASTIAN, IMPERIAL MOTOR SERVICE, TALIPARAMBA. 3. THE UNITED INDIA INSURANCE COMPANY LTD., PAYYANNUR. 4. K. KARUNAKARAN, AGED 39 YEARS, S/O.MARATHAI, P.O.MALAPPURAM, SREEKANDAPURA VIA. 5. A.C. KUNHIKANNAN, S/O.CHATHUKKUTTY, SARASALAYAM, VILAYANCODE, PAYYANNUR. 6. THE NEW INDIA INSURANCE COMPANY LIMITED, PAYYANNUR. R1 BY ADV. SRI.V.A.SATHEESH, SRI.V.T.MADHAVANUNNI. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL. R6 BY ADV. SMT.A.SREEKALA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 6656/2009-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION O.P.(MV) NO.1871/1995. EXT.P2: COPY OF THE PETITION FOR RESTORATION. EXT.P3: COPY OF THE DISMISSAL ORDER DATED 20/12/2002. EXT.P4: COPY OF THE JUDGMENT DATED 29/06/2006 IN O.P. NO. 27358/2002. EXT.P5: COPY OF THE AFFIDAVIT SWORN TO BY THE COUNSEL FOR THE PETITIONER NAMELY M.C. RAMACHANDRAN. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 6656 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 17th day of September, 2010 JUDGMENT The petitioner, who was a claimant before the MACT, Thalasserry, is stated as aggrieved of the dismissal of the I.A for restoration of OP(MV) filed by the petitioner. The cause of action originates from the 'head-on collision' between two buses and the petitioner was a passenger in one of the two buses, who sustained some injuries in the accident occurred on 10.08.1995, which was sought to be compensated, by filing the above claim petition before the Tribunal against all the parties in respect of both the vehicles (drivers, owners and insurers). After completing the preliminary steps, the matter was ordered to be listed for evidence. On that particular day, the petitioner could not turn up as she did not obtain 'leave' and here counsel also could not appear due to an inadvertent omission of the advocate's clerk to note down the correct posting date. In the above circumstances, the OP (MV) happened to be dismissed for default, which however was sought to be restored by filing Ext. P2 Interlocutory Application. After considering the matter, the Tribunal dismissed the same for default, as per Ext. P3 order dated 20.12.2001. In fact, this W.P. (C) No. 6656 of 2009 : 2 : Writ Petition has been filed about 8 years after the dismissal of the said I.A. for restoration. 2. During the course of hearing, it was brought to the notice of this Court by the learned counsel for the petitioner that, the default on the part of the petitioner, who was the claimant before the Tribunal, was not wilful, nor was there any callous indifference on the part of the claimant. It was also submitted that, absolutely no prejudice would be caused to the opposite side. In fact, the petitioner did not get leave on that particular day, by virtue of her employment as a clerk in a Bank and hence she could not appear before the Tribunal to adduce evidence to and to get compensation. The restoration application filed by the petitioner was not properly appreciated by the Tribunal but for simply simply dismissing the same, which is sought to be interfered. 3. It was also brought to the notice of this Court that, in respect of the very same accident, there was yet another claim, which was also being tried along with petitioner's case, by the very same Tribunal. The restoration application filed by the said claimant, on dismissal of the claim for default, was also dismissed and it was challenged by filing W.P.(C) 27358 of 2002, which was disposed of as per Ext.P4 judgment, directing the matter to be restored to the file. The petitioner seeks for similar relief. 4. Heard the learned counsel appearing for the respondents 3 W.P. (C) No. 6656 of 2009 : 3 : and 6 and the learned Government Pleader as well. 5. It is seen that the impugned order was passed by the Tribunal way back on 2nd December, 2001 and the Writ Petition has been filed only after 8 years. The delay has been sought to be explained by the petitioner by filing an affidavit stating that, it was mainly due to the mistake at the hands of the counsel engaged by the petitioner and also as to the mistaken information that was being furnished to the petitioner, referring to the proceedings pending before this Court in O.P. 27358 of 2002. An affidavit sworn to, by the learned counsel appearing for the petitioner in the Tribunal has also been produced along with I.A. No. 3499 of 2009, in respect of the said contention, which has been sought to be marked as Ext. P5. 6. Considering the particular facts and circumstances, this Court finds that the explanation offered from the part of the petitioner for the absence on the relevant date by virtue of her employment in the Bank is liable to be accepted and that the matter requires to be considered on merit. More so, for the reason that the petitioner was none other than the claimant who sustained the injuries, who need not be non- suited on that score. 7. In the above circumstances, Ext. P3 is hereby set aside and Ext. P1 claim petition preferred by the petitioner will stand restored to the file and it shall be finalized on merits, giving an opportunity to W.P. (C) No. 6656 of 2009 : 4 : adduce the evidence, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. Petitioner shall produce a copy of this verdict before the Tribunal forthwith. 8. However, this Court finds that the similar case in respect of the very same accident, which was the subject matter of O.P. 27358 of 2002, was directed to be finalized as per the Ext. P4 judgment passed in the said original petition way back on 29.06.2006. Since the petitioner chose to approach this Court only after 3 years of passing the said verdict, the explanation offered from the part of the petitioner or by the counsel who appeared before the Tribunal cannot be fully accepted, so as to shift the entire liability to pay the compensation, if any, to the shoulders of the concerned respondents such as Driver/owner/insurer of the vehicle. Hence it is made clear that, if the Tribunal finds that if any compensation is liable to be paid to the petitioner, she will not be entitled to get 'interest' on such compensation in respect of the 'default period' i.e. from the date of dismissal of the claim petitioner till this date. The Writ Petition is allowed to above extent. No cost. P. R. RAMACHANDRA MENON, JUDGE kmd