IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 WP(C).No. 882 of 2010(I) ------------------------ AGAINST THE ORDER DATED 13/11/2009 IN IA.2911,2912/2009 IN OPMV.335/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... PETITIONER/ PETITIONER IN I.A: ----------------------------------------------- ABDUL FAIZAL,S/O.ABDULLA KUTTY, PUTHUKKANATTIL HOUSE, TIRUR P.O. TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.A.KRISHNAN RESPONDENTS/ RESPONDENTS IN I.A.: -------------------------------------------------------- 1. AYYUB, S/O. MUHAMMED, NELLERI HOUSE, OVUNGAL, THALAKKADATHUR P.O.,TIRUR TALUK. 2. SAIDALAVI, MANGATTIL HOUSE, KALLINGAL P.O., TIRUR TALUK. 3. THE NEW INDIA ASSURANCE CO. LTD, SHEFEER COMPLEX, OPPOSITE Y.M.C.A., KANNUR ROAD, KOZHIKODE. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 882/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE CLAIM PETITION VIDE O.P.(MV) NO.335 OF 2006 BEFORE THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR EXT.P2 : COPY OF THE I.A.NO.2911 OF 09 IN O.P.(MV) NO.335 OF 2006 BEFORE THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR DATED 23.7.09. EXT.P3 : COPY OF THE I.A. NO.2912 OF 09 IN O.P.(MV) NO.335 OF 2006 BEFORE THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR DATED 23.7.09. EXT.P4 : COPY OF THE OBJECTION DATED 19.10.09 TO EXT.P2 PETITION EXT.P5 : COPY OF THE OBJECTION DATED 19.10.09 TO EXT.P3 PETITION EXT.P6 : COPY OF THE COMMON ORDER DATED 13.11.09 OF THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR, EXT.P2 AND P3 PETITIONS. EXT.P7 : CERTIFIED RULE COPY OF THE ORDER OF THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR DATED 4.12.07 IN O.P.(MV) NO.335 OF 2006 . RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 882 OF 2010 -------------------------- 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.335 of 2006 on the file of the Motor Accidents Claims Tribunal, Tirur. In the said claim petition, which was filed on 27.5.2006 the petitioner claimed the sum of Rs.4,00,000/- as compensation for the injuries sustained by him in a motor accident that took place on 16.11.2004. In the claim petition, the petitioner had stated in column 11 thereof that in the accident he suffered closed fracture of the shaft of the right femur, fracture of the 4th and 5th ribs and the left tibia spiral. The claim petition stood posted for evidence in the Motor Accidents Claims Tribunal on 4.12.2007. The petitioner who was abroad was not present. For that reason and also on the ground that no evidence had been adduced by the petitioner, the claim petition was dismissed for default by order dated 4.12.2007. More than a year later, the petitioner filed I.A. No.2912 of 2009 to set aside the order dismissing the claim petition for default along with I.A. No.2911 of 2009 to condone the delay of 564 days in filing I.A. No.2912 of 2009. He had in the affidavit filed in support of the applications stated that he was employed abroad and therefore he could not be present to tender evidence on 4.12.2007. He had also stated that his failure to appear on 4.12.2007 was not willful or negligent and that it was because of the fact that he was employed WPC No.882/2010 2 abroad that he was not in a position to appear on 4.12.2007 or to take timely steps to file an application to have the order dismissing the claim petition for default set aside. It appears, while I.A. Nos.2911 of 2009 and 2912 of 2009 were pending, he filed yet another application I.A. No.4397 of 2009 wherein also he stated that he is still employed abroad and therefore he is not in a position to adduce evidence. What was the purpose for which such an application was filed is not discernible either from the pleadings or the materials on record. 2. The insurer of the offending vehicle, the third respondent in the claim petition, filed Ext.R5 counter affidavit resisting I.A. No.2912 of 2009. It was contended that the reasons stated by the petitioner to explain the delay in filing I.A. No. 2912 of 2009 do not constitute sufficient cause and therefore the delay is not liable to be condoned. The insurer also opposed the application for restoration of the claim petition. By Ext.P6 order passed on 13.11.2009 the Claims Tribunal dismissed both the applications on the ground that the petitioner has not adduced any evidence and there is no justification for not being present on 4.12.2007. Ext.P6 order is under challenge in this writ petition. 3. I heard Sri.A.Krishnan, learned counsel appearing for the petitioner and Sri.N.S. Mohammed Usman, learned counsel appearing for the third respondent. Though the owner and driver of the vehicle, which is WPC No.882/2010 3 alleged to have caused the accident, have been served, they have not entered appearance so far. In column No.25 of the claim petition the petitioner has stated that he is employed abroad. The claim petition was filed on 27.5.2006. It stood posted for evidence on 4.12.2007. Since the petitioner who was employed abroad was not present on that day to tender evidence, the claim petition was dismissed by Ext.P7 order dated 4.12.2007. On coming to know of the said order, the petitioner filed I.A. No.2912 of 2009 to set aside the order dismissing the claim petition for default along with I.A. No. 2911 of 2009 to condone the delay in filing the former application. In the affidavit filed in support of both the applications it was stated that as he was employed abroad he could not be present on 4.12.2007 or give timely instructions to his counsel to take steps to have the order dismissing the claim petition for default set aside. The insurer resisted the applications contending inter alia that the reasons put forward by the claimant in support of the applications are not tenable. The insurer also contended that even if the claim petition is restored, the insurer cannot be held liable to pay interest for the period during which the claim petition stood dismissed for default. 4. It appears when the applications were taken up for hearing the learned counsel appearing for the petitioner brought the said averment in the counter affidavit filed by the insurer to the notice of the Tribunal and WPC No.882/2010 4 submitted that the interests of the insurer can be protected by directing that interest need not be paid during the period when the claim petition stood dismissed for default. The Tribunal held that the petitioner cannot dictate the terms or conditions which can be imposed by the Tribunal. For that reason and also for the reason that no evidence was adduced in support of his contentions, the Tribunal dismissed both the applications. In view of the admitted fact that the claimant was employed abroad and it was impossible for him to be present on 4.12.2007 the Tribunal ought to have in my opinion allowed the applications and restored the claim petition to file. The fact that the claimant had sustained serious injuries in an accident is not disputed by the insurer. In the objections filed to I.A. Nos.2911 of 2009 or 2912 of 2009, the insurer had also admitted the existence of a valid policy as on the date of the accident. Apart from stating that the claimant is put to strict proof regarding the averments in the applications and also contending that the onus of proof is on the claimant and the compensation claimed is exorbitant, the insurer had no case that no accident as alleged took place. In such circumstances, as the occurrence has not been disputed and the petitioner had admittedly sustained injuries and had produced along with the claim petition documents which are sought to be relied on including medical records, I am of the opinion that the Tribunal ought to have given him an opportunity to prove his case. The Tribunal WPC No.882/2010 5 could have compensated the insurer by directing that in the event of the claim petition being allowed the insurer will not be liable to pay interest during the period from 4.12.2007 when the claim petition was dismissed, till the date on which the claim petition is restored to file. I accordingly allow the writ petition, set aside Ext.P6 and allow I.A. Nos.2911 of 2009 and 2912 of 2009. Consequently OP (MV) No.335 of 2006 shall stand restored to file. The Motor Accidents Claims Tribunal, Tirur shall endeavour to dispose of the claim petition expeditiously and in any event within six months from the date of receipt of a certified copy of this judgment. The parties shall appear before the Motor Accidents Claims Tribunal, Tirur on 19th September, 2011. P.N.RAVINDRAN, (JUDGE) vps