IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 WP(C).No. 5887 of 2005(A) ------------------------------------- PETITIONER: ------------------- N.AJAYAKUMAR,SREENIKETHAN HOUSE, CHERIANADU VILLAGE,RANNI, REPRESENTED BY POWER OF ATTORNEY HOLDER K.C.JOSEPH,AGED 46 YEARS, S/O.K.I.CHERIAN KANNAMKUZHAM, KILIROOR KARA, THIRUVARPU VILLAGE,KOTTAYAM TALUK. BY ADV. SRI.P.SREEKUMAR, SRI.K.S.MANU (PUNUKKONNOOR). RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY CHIEF SECRETARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA. 3. THE ORIENTAL INSURANCE CO.LTD., CHANGANASSERY. BY SR. GOVERNMENT PLEADER SMT. SUDHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5887/2005-A: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE AWARD IN O.P. (MV) 787/95 DTD. 07/12/1996. EXT.P.2: COPY OF THE PETITION. EXT.P.3: COPY OF THE ORDER DTD. 05/01/04 IN I.A. 2915/03 IN O.P. (MV) 787/95. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 5887 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of January, 2008 JUDGMENT Case of the petitioner is as follows: Petitioner is the claimant in O.P.(MV) 787 OF 1995. He sustained injuries in a road accident. He filed a claim application. Ext.P1 is the award dated 7.12.1996. He was awarded Rs.40,000/- with 12% interest and other costs. The direction was to deposit the award amount with interest and the petitioner was allowed to withdraw Rs.12,000/-. The balance was directed to be kept in a Nationalised Bank. Petitioner filed an application dated 6.8.2003 for withdrawing the amount deposited. On 18.8.2003 it was dismissed on the ground that no such deposit has been made. Petitioner made enquiries and he understood that because of the lapses and irresponsibility of the office staff of the second respondent that the amount is not deposited. Only after the petitioner filed application for the release of the deposited amount did the second respondent take steps for depositing the amount. The cheque became invalid by that time and it had to be sent for revalidation and the amount was deposited for five years from 18.9.2003. Petitioner sustained injuries in the accident and had to undergo continuous treatment for sometime. He is facing financial crisis. He filed WPC. 5887/2005. 2 Ext.P2 application for release of the Fixed Deposit amount. Petitioner was allowed to withdraw the deposit, but kept in abeyance the decision on the other reliefs sought. The other reliefs sought was for realising interest due to him for the period during which the amount was kept second respondent's office. Ext.P3 is the order. Petitioner has approached this court seeking mandamus directing the first respondent (State of Kerala) to pay the petitioner interest due on the amount deposited. He seeks a direction to consider Ext.P2 application and to declare that the first respondent is liable to compensate the petitioner for the losses suffered by him because of the lapses committed by the officers of the second respondent. 2. A counter affidavit is filed. I heard learned counsel for the petitioner and the learned Government Pleader. 3. Learned counsel for the petitioner reiterated his contentions and submitted that the first respondent is liable to pay interest. He also submits that at any rate there may be a direction to the second respondent to grant the reliefs sought for in Ext.P2 petition, which was kept pending, considering the fact that the writ petition is filed in 2005. 4. A writ of mandamus can be sought for to enforce a legal right with the petitioner for that the petitioner has to make a demand for the WPC. 5887/2005. 3 performance of the said duty. It is not in dispute that the petitioner has not made any demand before the first respondent claiming interest as sought for in the writ petition. In such circumstances, I cannot consider the claim for mandamus against the first respondent. 5. As far as the direction to the second respondent is concerned, I notice that the second respondent has only said that in regard to the second prayer, it is to be kept in abeyance till the decision on the departmental enquiry, which was already initiated, explanation called for and matter reported to District Judge. The order is dated 5.1.2004. Certainly it is for the petitioner to request to the second respondent to adjudicate the matter. In all probability the departmental enquiry would have been over by now. 6. Regarding the third prayer, namely, declaration that the first respondent is liable to compensate the petitioner for the losses suffered, in the light of the fact that the petitioner has not even made a demand, I would think that the declaratory relief, which is a discretionary relief, need not be granted in this case. I need not consider the said relief at this stage. I leave open the other relief, so that it can be considered if the petitioner makes a demand and seeks consideration at the hands of the Government. WPC. 5887/2005. 4 7. In the facts of this case, if the petitioner moves a representation claiming interest before the first respondent within a period of one month from today, a decision thereon will be taken by the first respondent within a period of six weeks from the date of receipt of the representation. The writ petition is disposed of as above. (K.M. JOSEPH, JUDGE) sb