IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 OP (MACT).No. 691 of 2011(O) ---------------------------- OPMV.381/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... PETITIONER/CLAIM PETITIONER: -------------------------------------------------- HAMZA, S/O.SAIDALI, CHENNIKKAPARAMBIL HOUSE, KUTTIPPURAM AMSOM, PAINKANNOOR DESOM, REPRESENTED BY POWER OF ATTORNEY HOLDE SMT. KHADEEJA DO..DO... BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENTS/ RESPONDENTS: ---------------------------------------------- 1. ARUN KUMAR, S/O.AYYAPPAN, KOLAVAN KUNNU HOUSE, PALAPRASSERY, CHENKANDU PO ALUVA 683 101. 2. THE MANAGING DIRECTOR THE KERALA AGRO INDUSTRIES CORPORATION KISAN JYOTHI, FORT PO, THIRUVANANTHAPURAM 695001. 3. THE ORIENTAL INSURANCE CO LTD PATTAMANA BUILDING, PUMP JUNCTION, RAILWAY STATION, ALUVA 683 101. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS OP (MACT) HAVING BEEN FINALLY HEARD ON 08/08/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.(MAC) No. 691/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE CLAIM PETITION IN OP(MV) NO.381/2007 OF MACT, TIRUR EXT.P2 : COPY OF THE I.A. NO.2604/2010 EXT.P3 : COPY OF THE I.A. NO.2605/2010 EXT.P4 : COPY OF THE COMMON ORDER DATED 13.1.2011 EXT.P5 : COPY OF THE POWER OF ATTORNEY RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- O.P.(MAC) No. 691 OF 2011 -------------------------- Dated this the 8th day of August, 2011 J U D G M E N T The petitioner is the claimant in OP(MV) No.381 of 2007 on the file of the Motor Accidents Claims Tribunal, Tirur. The said claim petition was filed seeking compensation for the damage caused to the petitioner’s residence by a motor vehicle on 6.3.2007. The claim petition was filed on 5.6.2007. It stood posted for evidence on 19.8.2008. On that day the petitioner who was employed abroad was not present. On that short ground, the claim petition was dismissed for default. Later, he filed I.A. No.2605 of 2010 to set aside the order dismissing the claim petition for default along with I.A No.2604 of 2010 to condone the delay in filing the former application. The respondents in the claim petition did not oppose the said application. In that application, the petitioner’s wife was examined as PW1. It appears she deposed during examination that her husband has been abroad for the past 4 years and had not come over to India till the date of filing of the application for restoration. The Tribunal held that as the claim petition was OP(Mac) No.691/2011 2 filed only on 5.6.2007, her version that her husband has not been to India for the past four years is false and therefore there is no justification to condone the delay of 635 days in filing I.A. No.2605 of 2010. Both the applications were accordingly dismissed by Ext.P4 order dated 13.1.2011. In this original petition, the petitioner challenges Ext.P4 order. 2. The petitioner had in Ext.P1 claim petition stated that as a result of the negligent driving of a lorry belonging to the second respondent by the first respondent, his house was extensively damaged and that the total cost of reconstruction will come to Rs.50,000/-. He had in all he claimed the sum of Rs.1,00,000/- as compensation. The said claim petition was dismissed for default on 19.8.2008 for the reason that the claimant who was employed abroad was not present to tender evidence. Nearly two years thereafter the claimant filed I.A. No.2605 of 2010 to set aside the order dismissing the claim petition for default along with I.A No.2604 of 2010 to condone the delay in filing the former application. The respondents in the claim petition did not oppose the application. However relying on the statement made OP(Mac) No.691/2011 3 by the claimant’s wife, when examined as PW1, that her husband has not been to India for the past four years, the Tribunal dismissed the application. The claimant’s wife had deposed before the Tribunal that her husband came to know of the dismissal of the claim petition only in April, 2010. It is evident from the pleadings and the materials on record that it was acting on petitioner’s instructions that his wife tendered evidence in support of his case. During the course of her testimony she stated that her husband was abroad for the last 4 years and that he has not visited India till the filing of the application. The Tribunal was of the opinion that since the claim petition was filed on 5.6.2007 the version of PW1 that her husband who was employed abroad has not been to India for the past four years is absolutely false. In my opinion, the crucial question to be considered was whether the claimant was prevented by sufficient cause from appearing on 19.8.2008 when the claim petition was dismissed for default and whether he has satisfactorily explained the reason for not taking steps in time to have the order dismissing the claim petition for default set aside. OP(Mac) No.691/2011 4 The Tribunal has not while passing the impugned order considered any of these aspects. I am therefore of the opinion that the Tribunal should reconsider the applications submitted by the petitioner having regard to the averments in the affidavit filed in support of the said applications. I accordingly allow Original Petition, set aside Ext.P4 and direct the Motor Accidents Claims Tribunal, Tirur to pass fresh orders in I.A. Nos. 2604 of 2010 and 2605 of 2010 in O.P.(MV) No.381 of 2007 having regard to the averments in the affidavit filed in support of the applications and the testimony tendered by the claimant's wife who was examined as PW1 expeditiously and in any event within two months from the date of receipt of a certified copy of this judgment. P.N.RAVINDRAN, (JUDGE) vps