IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 OP (MACT).No. 969 of 2010(O) ---------------------------- OPMV.2148/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... PETITIONER: ------------------- SOMAN.P., S/O.POKKAN, AGED 38 YEARS, PAROLLATHIL HOUSE, P.O.INDIRA NAGAR, KALLACHI, KOZHIKODE. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): --------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, AL-MUBARAK BUILDING EDODI, VATAKARA-673 101. BY ADV. SRI.K.C.SANTHOSHKUMAR FOR R THIS OP (MACT) HAVING COME UP FOR ADMISSION ON 01/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- O.P (MAC) No.969 of 2010 ------------------------------- Dated this the 1st day of April, 2011 J U D G M E N T The petitioner is the claimant in OP (M.V) No.2148 of 2005 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was filed on 20.9.2005 seeking payment of the sum of Rs.1 lakh as compensation from the owner and insurer of an autorickshaw in which the petitioner was a passenger. It is alleged that on account of the rash and negligent driving of the autorickshaw, it over turned causing injuries to the petitioner. The petitioner has averred in the claim petition that in the accident he suffered serious injuries including fracture and was under treatment in Medical College Hospital, Calicut for 14 days. The owner of the autorickshaw did not appear notwithstanding service of summons and he was therefore set ex parte on 19.9.2006. The respondent herein, the insurer of the vehicle entered appearance and filed a written statement admitting that the vehicle was covered by a valid policy of insurance. The respondent however disputed the claim of the petitioner for compensation. After notice was served on the respondents, the petitioner filed I.A.No.6680 of 2006 on 7.12.2006 praying that he may be referred to the Medical Board for assessment of the disability. That application was taken up for consideration on 18.2.2007 and on O.P.(MAC) No.969 of 2010 2 that day the Tribunal passed the following order:- “Petitioner is present. He says that Doctor has advised that removal of implant is required and it is fixed next month. Being so, it is not feasible to find out the exact disability. Hence will be considered after completion of treatment.” 2. The application was thereafter considered on 17.10.2007. On that day, the learned counsel for the petitioner represented that treatment is going on. The application was adjourned to 31.12.2007. On 31.12.2007, it was adjourned to 6.2.2009. On 6.2.2009, in view of the submission made by the learned counsel for the petitioner that the treatment is not over, the application was adjourned to 23.6.2009. On that day, it was adjourned to 15.7.2009. On 15.7.2009, the petitioner appeared and on that day orders were passed referring him to the Medical Board. The application thereafter came up for hearing on 27.9.2010. The petitioner states that even without waiting for the report of the Medical Board, by Ext.P4 order passed on 27.9.2010, the Motor Accidents Claims Tribunal closed the application and referred the case to the Lok Adalath held on 21.10.2010. Ext.P4 is under challenge in this writ petition. The main contention raised by the petitioner is that O.P.(MAC) No.969 of 2010 3 as the Motor Accidents Claims Tribunal had by order passed on 15.7.2009 referred him to the Medical Board, it should have awaited the report of the Medical Board. 3. I heard Sri.K.M.Jamaludheen, the learned counsel appearing for the petitioner and Sri.K.C.Santhosh Kumar, the learned counsel appearing for the respondent. When the writ petition came up for hearing on 16.2.2011, since it was felt necessary that the records have to be called for from the Motor Accidents Claims Tribunal, I passed the following order:- “Registry is directed to call for the records in OP (MV) No.2148 of 2005 on the file of the Motor Accidents Claims Tribunal, Kozhikode expeditiously. Post after two weeks.” The records were accordingly made available to me for perusal. The records disclose that the Motor Accidents Claims Tribunal had on 27.9.2010 closed I.A.No.6680 of 2006 on the ground that the petitioner did not appear before the Medical Board in spite of two notices issued by the Medical Board for his appearance. The order passed by the Motor Accidents Claims Tribunal, Kozhikode on 27.9.2010 in I.A.No.6680 of 2006 reads as follows:- "Taken up today. In the light of the Reports of the Medical O.P.(MAC) No.969 of 2010 4 Board that inspite of two notices for his appearance before the Medical Board, the petitioner did not appear there, I close the petition under rule 387 Motor Vehicles Rules. No cost. The reports of the Medical Board will be appended to this order. 4. In the reports sent by the Superintendent of Medical College on 20.9.2009 and 3.10.2009 it is stated that the petitioner did not appear before the Medical Board, though notices had been issued to him by post in the address furnished by the Tribunal. Besides the case of the petitioner, the letters also refer to the failure of claimants in other cases to appear before the Medical Board. From the order passed by the Motor Accidents Claims Tribunal on 27.9.2010, it is clear that the reason for referring the case to the Lok Adalath is not as stated by the petitioner in the writ petition or as set out in Ext.P4. The petitioner is however right in stating that after I.A.No.6680 of 2006 was closed, the case was referred to the Lok Adalath. The records also disclose that as no settlement was arrived at at the Lok Adalath, the case was reposted on various dates. 5. When the writ petition came up for hearing today, the learned counsel for the petitioner submitted that the petitioner is residing in a different address than the one shown in the cause title of O.P.(MAC) No.969 of 2010 5 the claim petition. The learned counsel submitted that there was an inadvertent omission on the part of the petitioner to take steps to amend the cause title or to bring the change in residence to the notice of the Tribunal. It was submitted that evidently because of that fact the petitioner did not receive the notices issued by the Medical Board. 6. The address of the petitioner as shown in the claim petition is as follows:- Soman.P., S/o.Pokkan, aged 32 years Parollathil House, P.O.Indira Nagar, Kallachi Kozhikode (Now residing at Keezhvanapadam, P.O.Nallalam, Calicut) The address given in I.A.No.6680 of 2006 is as follows:- Soman.P. S/o.Pokkan, aged 33 years Parollathil House, Indira Nagar P.O., Kallachi Kozhikode District. 7. The letter dated 28.12.2009 sent by the Motor Accidents Claims Tribunal, Kozhikode to the Superintendent of Medical College Hospital, Kozhikode discloses that the address of the petitioner as given in the claim petition was mentioned therein. By that letter, the Superintendent of Medical College Hospital, Kozhikode was requested to constitute a Medical Board to examine the O.P.(MAC) No.969 of 2010 6 petitioner. It is thus evident from the records available in the case that the letter sent by the Medical Board on two occasions calling upon the petitioner to appear before the Medical Board initially on 19.11.2009 and later on 29.4.2010 would have been sent only in the address given in the claim petition and not to the residential address of the claimant as set out in I.A.No.6680 of 2006. The petitioner alone can be blamed for his failure to bring to the attention of the Tribunal that after the claim petition was filed, he had shifted residence to another place. The Tribunal has by order passed on 27.9.2010 closed I.A.No.6680 of 2006 on the short ground that the petitioner did not report before the Medical Board on two occasions. In the light of the facts stated above, it is evident that the petitioner was not at fault for not appearing before the Medical Board, for the reason that he did not receive the letters sent by the Medical Board. In such circumstances, I am of the opinion that he should be afforded another opportunity to be examined by the Medical Board. 8. I accordingly allow the writ petition, set aside the order passed by the Motor Accidents Claims Tribunal, Kozhikode on I.A.No.6680 of 2006 in O.P.(M.V.) No.2148 of 2005 and direct the Motor Accidents Claims Tribunal to pass fresh orders thereon referring O.P.(MAC) No.969 of 2010 7 the petitioner to the Medical Board. The petitioner shall appear before the Motor Accidents Claims Tribunal on 10.5.2011 and shall on that day file an affidavit in the Motor Accidents Claims Tribunal setting out his present address. The Tribunal shall pass fresh orders on I.A.No.6680 of 2006 within two weeks thereafter. Registry is directed to communicate a copy of this judgment to the Motor Accidents Claims Tribunal, Kozhikode and to transmit the records back to the Tribunal. P.N. RAVINDRAN, JUDGE. nj.