IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 20330 of 2009(I) -------------------------- OPMV.2133/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... PETITIONER(S): --------------- JOSEPH.A.J.(JOY),AREECKAL HOUSE, ANGAMALY P.O. BY ADV. SRI.WILSON URMESE RESPONDENT(S): --------------- 1. ASHIK BIJU,S/O.MOHAMMED, VALLIYAMMAL HOUSE,THRIKKALANGODE P.O. 2. P.CHANDRAN,(R.C.OWNER),S/O.PONNAYA NADAR 3/466,ASHOK BHAVAN,MARADU,MALAPPURAM DISTRICT. 3. THE NATIONAL INSURANCE CO.LTD., BRANCH OFFICE,MANJERY P.O. BY ADV. SRI.P.JAYASANKAR FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.20330 of 2009 ------------------------------- Dated this the 17th day of March, 2011 J U D G M E N T The petitioner is the claimant in O.P.(M.V.) No.2133 of 2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents are the respondents therein. In this writ petition, the petitioner challenges Ext.P4 order passed by the Motor Accidents Claims Tribunal, Perumbavoor dismissing the application filed by him to set aside the order dismissing the claim petition for default after condoning the delay in filing the said application. The brief facts of the case are as follows. 2. The petitioner who was the pillion rider on a motor bike that met with an accident on 23.6.2004, when the motor car driven by the first respondent, owned by the second respondent and allegedly insured by the third respondent herein hit the motor bike from the rear. The petitioner claims that in the said accident, he sustained serious injuries including fracture of the left ankle and fracture of the right femur. He thereupon filed the claim petition claiming the sum of Rs.5 lakhs as compensation. Though the respondents in the claim petition were served, they did not appear and were set ex parte. The case thereafter stood posted for ex parte evidence on 22.5.2006. On that day, the petitioner/claimant did not appear and therefore the W.P.(C) No.20330 of 2009 2 claim petition was dismissed for default. The petitioner thereupon filed I.A.No.3344 of 2006 to restore the claim petition to file. By order passed on 3.11.2008, the said application was allowed subject to two conditions. The first condition was that the petitioner will not be entitled to interest on the compensation, if any, awarded to him during the period from 22.5.2006 till 3.11.2008. The second condition was that he should produce copies of the documents which he chooses to rely on, on or before 25.11.2008 to which date the claim petition stood posted for trial. It appears the petitioner did not appear or produce documents on 25.11.2008 also. Consequently, by order passed on 25.11.2008, the claim petition was once again dismissed for default. More than two months thereafter, the petitioner filed I.A.No.935 of 2009 to restore the claim petition to file accompanied by I.A.No.936 of 2009, an application filed to condone the delay in filing the former. On that application, notice was ordered to the respondents. The respondents appeared and opposed the prayer for restoration. By Ext.P4 order passed on 29.5.2009, the Motor Accidents Claims Tribunal, Perumbavoor, dismissed both the applications. Hence this writ petition. 3. I heard Sri.Wilson Urmese, learned counsel appearing W.P.(C) No.20330 of 2009 3 for the petitioner and Sri.P.Jayasankar, learned counsel appearing for the third respondent. In view of the fact that respondents 1 and 2 herein who are the driver and owner respectively of the motor car which was involved in the accident had been set ex parte in the proceedings before the Tribunal, and had not entered appearance and contested the claim petition, I am of the opinion that they are not entitled to be put on notice or heard at any stage of the proceedings, after they were initially set as ex parte. I am therefore proceeding to dispose of the writ petition without awaiting service of notice on the said respondents. 4. Ext.P1, a copy of the claim petition discloses that the petitioner had suffered injuries in the accident. The pleadings also disclose that he was hospitalised for a long period of time. Though the owner and driver of the motor car and the insurer were served, they did not appear and were set ex parte. That was the reason why the claim petition was posted for ex parte evidence on 22.5.2006. Since the petitioner or his counsel did not appear on that day, it was dismissed for default. On application filed by the petitioner, it was restored by order passed on 3.11.2008 subject to the condition that he should produce copies of the documents on or before 25.11.2008. W.P.(C) No.20330 of 2009 4 There was a further rider that during the period from 22.5.2006 to 3.11.2008, the petitioner will not be entitled to interest, in the event of compensation being awarded to him. It appears the petitioner did not produce the documents or appear when the case was called on for hearing on 25.11.2008, and therefore, it was again dismissed for default. The explanation offered in the affidavit filed in support of I.A.Nos.935 and 936 of 2009 filed by the learned counsel for the claimant in the Tribunal is that he had noticed the date of posting incorrectly and that was the reason why he or the petitioner did not appear on 25.11.2008. The Motor Accidents Claims Tribunal however dismissed the application to condone the delay on the short ground that the delay of 85 days in filing the petition to set aside the order dismissing the claim petition for default has not been satisfactorily explained. The claim petition was dismissed in the second instance on 25.11.2008. I.A.Nos.935 & 936 of 2009 were filed before the Tribunal on 12.2.2009. The period of limitation prescribed for filing the application for restoration is 30 days from the date of the order, i.e., 25.11.2008. In fact, there is only a delay of 49 days in filing the said applications. In such circumstances, having regard to the contents of the affidavit filed in support of I.A.Nos.935 & 936 of 2009 W.P.(C) No.20330 of 2009 5 by the learned counsel for the claimant before the Tribunal, I am of the opinion that the Tribunal ought to have allowed the application and afforded the petitioner an opportunity to have his case decided on the merits by stipulating that on account of his laches, he will not be entitled to interest from the date on which the claim petition was initially dismissed for default, viz., 22.5.2006 till the date of restoration. I accordingly allow the writ petition and quash Ext.P4 order. I.A.Nos.935 and 936 of 2009 shall stand allowed as prayed for. The Motor Accidents Claims Tribunal shall proceed to dispose of the claim petition expeditiously and in any event within three months from the date of receipt of a copy of this judgment, after affording the petitioner and third respondent insurer an opportunity to adduce evidence. The Tribunal shall also permit the third respondent to file a written statement. It is clarified that in the event of the claim petition being allowed, the petitioner will not be entitled to interest during the period from 22.5.2006 till this date. P.N. RAVINDRAN, JUDGE. nj.