IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 OP (MACT).No. 2465 of 2011(O) --------------------------------------------- I.A.NO.6840/10 IN OP(MV) NO.1739/06 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE. ...... PETITIONER: ---------------------- N.T.MUHAMMED, S/O. LATE ABDURAHIMAN HAJI, NADUTHODUKAYIL HOUSE, AVILORA P.O., KODUVALLY (VIA), KOZHIKODE DISTRICT. BY ADV. SMT.K.V.RASHMI RESPONDENT(S): --------------------------- 1. K.P.MUHAMMED, KALARANGAL POYIL HOUSE, THAMARASSERY P.O., KOZHIKODE-673 573. 2. N.P.NOUSHAD, S/O. ABDURAHIMAN, MUTTAKADAVIL HOUSE, THAMARASSERY, KOZHIKODE DISTRICT-673 573. 3. NATIONAL INSURANCE CO. LTD., OFFICE: NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE DISTRICT-673 661. THIS OP (MACT) HAVING COME UP FOR ADMISSION ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(MAC) NO.2465/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PETITION WITH AFFIDAVIT FILED BY THE PETITIONER BEFORE THE PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE IN OP(MV) NO.1739/2006 DTD.22/11/2010. P2: COPY OF THE COMMUNICATION DTD. 18/11/2010 RECEIVED FROM THE AVILORA SERVICE CO-OPERATIVE BANK LTD., KODUVALLY. P3: COPY OF THE ORDER IN I.A.NO.6840 OF 2010 IN OP(MV) NO.1739 OF 2006 DTD. 14/01/2011 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss P.N. RAVINDRAN, J. ------------------------------- O.P. (MACT) No.2465 of 2011 ------------------------------- Dated this the 29th day of July, 2011 J U D G M E N T The petitioner is the claimant in O.P.(MV) No.1739 of 2006 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The said case was settled in the Lok Adalath held on 26.9.2010. As per the terms of the settlement, the petitioner was entitled to receive the sum of Rs.3,20,000/- as compensation. Out of the said amount, the sum of Rs.1 lakh was paid to him directly and the balance amount of Rs.2,20,000/- was deposited in fixed deposit for a period of three years. Shortly after receiving payment of the sum of Rs.1 lakh, the petitioner filed I.A.No.6840 of 2010 on 22.11.2010 for an order directing release of the sum of Rs.2,20,000/- lying in fixed deposit. In the affidavit filed in support of that application, he had stated that he had availed a loan from Avilora Service Co-operative Bank Ltd., that on account of the injury sustained by him in the accident he was laid up and therefore could not repay the loan and that he is in urgent need of funds to repay the loan. Along with that application, he also produced a communication dated 18.11.2010 issued by the Secretary, Avilora Service Co-operative Bank Ltd. to the effect that in the loan account of the petitioner, the sum of Rs.79,869/- is due and that the OP (MACT) No.2465 of 2011 2 petitioner is liable to pay the said amount with future interest. It appears, on the application filed by the petitioner for pre-mature release of the money lying in fixed deposit, the Tribunal passed an order directing the petitioner to take steps to summon the Secretary of the Avilora Service Co-operative Bank Ltd. for examining him as a witness to ascertain the facts. The petitioner did not take steps as directed. By Ext.P3 order passed on 14.1.2011, the Tribunal dismissed I.A.No.6840 of 2010 on that short ground. Ext.P3 is under challenge in this writ petition. 2. The petitioner had suffered a serious head injury in the motor accident and he was hospitalised for more than a month. The claim for compensation was settled out of court and out of the total compensation of Rs.3,20,000/-, the sum of Rs.1 lakh was paid. The petitioner sought pre-mature release of the balance amount lying in fixed deposit for the purpose of clearing a loan availed by him. Though the petitiner had produced Ext.P2 letter from the Secretary, Avilora Service Co-operative Bank Ltd. before the Tribunal, the Tribunal was of the opinion that the Secretary should be examined for the purpose of ascertaining the veracity of the petitioner's claim. Accordingly, the petitioner was directed to take steps to summon the Secretary. He failed and therefore the impugned order was passed OP (MACT) No.2465 of 2011 3 dismissing the said application. In my opinion, having regard to the fact that the petitioner had sought pre-mature release for the purpose of clearing a loan, the Tribunal ought to have afforded the petitioner another opportunity to take steps to examine the Secretary of the society for the purpose of substantiating his claim. The Tribunal ought not have, in my opinion, dismissed the application for default. Ext.P3 is therefore liable to be set aside. I accordingly allow the writ petition, set aside Ext.P3 order and restore I.A.No.6840 of 2011 to the file of Motor Accidents Claims Tribunal, Kozhikode. The Motor Accidents Claims Tribunal shall pass revised orders on the application after affording the petitioner an opportunity to examine the Secretary of the Avilora Service Co- operative Bank Ltd. The petitioner shall appear before the Motor Accidents Claims Tribunal along with a certified copy of this judgment on 10.8.2011. P.N. RAVINDRAN, JUDGE. nj.