IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 WP(C).No. 28212 of 2010(B) ------------------------------------- [O.P(MV).NO..990/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI] .................... PETITIONER: -------------------- MOHAN DAS, AGED 23 YEARS, S/O.KADUNGUNNI, KUZHICHAKUNNIL HOUSE, KONDOTTY.P.O., MALAPPURAM DISTRICT. BY ADV. SMT.T.V.NEEMA. RESPONDENTS: ----------------------- 1. PAYANI AHAMMEDKUTTY, S/O.KUTTYALIMOLLA, KUZHIPULAKKUNNU, KAVANNUR (DRIVER)-673 644. 2. M.P.KUNHALI, S/O.MOHAMMED, MUKKAMPALLIYALI HOUSE, KOOTAVIL.P.O., PULPATTA, MANJERI, MALAPPURAM DISTRICT-676 121. (OWNER) 3. UNITED INDIA INSURANCE CO.LTD., ARAFA BUILDING, COURT ROAD, MANJERI (INSURER)-676 121. R1 & R2 BY ADV. SRI.BABU S. NAIR, R3 BY ADV. SRI.P.V.JYOTHI PRASAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 28212 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2010 J U D G M E N T The petitioner was a claimant in OP(MV)990/2007 on the file of Motor Accident Claims Tribunal, Manjeri. The said claim petition was dismissed for default as per Ext.P1. A perusal of Ext.P1 would reveal that it was dismissed for two reasons. Firstly for default and secondly for the failure to take steps for serving notice on the second respondent. Subsequently, the petitioner has preferred a petition for restoration of the claim petition under Order 9 Rule 9 of the Code of Civil Procedure. Since there was a delay of 39 days in filing the said petition, a petition to condone the delay of 39 days was also filed under Section 5 of the Limitation Act. The said interlocutory applications viz., I.A No.124/2010 for condonation of delay and I.A No.125/2010 for setting aside the order of dismissal were considered jointly by the Tribunal and after such consideration the said interlocutory applications were dismissed as per a common order viz., Ext.P2. It is in the said circumstances, that this writ petition has been filed challenging Ext.P1 and P2 orders. WPC.28212/2010 : 2 : 2. I have heard the learned counsel for the petitioner and also the learned counsel appearing for the respondents 1 and 2 and also the learned Standing Counsel for the 3rd respondent. 3. Obviously, as per Ext.P1 the claim petition was dismissed for default. At the same time, the failure on the part of the petitioner to take steps as ordered for serving notices on second respondent was also taken note of while dismissing the claim petition. As already noticed, I.A No.124/2010 has been filed for condoning the delay in filing the petition to restore the claim petition. In paragraph 5 of Ext.P2 it has been stated thus:- “Petitioner now says that he was laid up on the hearing date. It may be true” It is thus obvious that the petitioner has filed I.ANo. 124/2010 for condoning the delay in filing the restoration application assigning the reason that he was laid up. The observation 'it may be true' would suggest that the Tribunal did not arrive at any conclusion as to whether the reason assigned was sufficient to condone the delay. When such an application to condone the delay in filing a restoration application in a claim petition is filed in a motor accident's claim a liberal approach which is justice oriented is to be adopted. True that the order WPC.28212/2010 : 3 : would reveal that there is some laches on the part of the petitioner in taking appropriate steps as ordered by the Tribunal for taking out notice to the second respondent. But, that cannot be a reason for dismissing an application for condonation of delay in filing an application for restoration of a claim petition. The Tribunal should have considered whether the petitioner has assigned sufficient reason for condoning the delay. Ext.P2 would reveal that such a consideration was not made by the Tribunal. It is evident from the words extracted above. In short, I am of the view that the I.A No.124/10 and I.A No. 125/10 requires fresh consideration. To enable the Tribunal to consider it afresh, Ext.P2 is set aside. Consequently, there will be a direction to the Tribunal to re-consider I.A Nos. 124/10 and 125/10 and pass fresh orders thereon. This shall be done within a period of one month from the date of receipt of a copy of this judgment. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge