IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 MFA.No. 31 of 2004() -------------------- AGAINST THE ORDER DATED 05/09/2003 IN IA 45/2001 IN D. NO.182/2001 IN OA.97/1998 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH .................... APPELLANT(S): PETITIONERS/APPLICANTS ------------------------------------ 1. K.SASIKALA W/O. LATE T.VISWANATHAN, PUTHIYEDATH HOUSE, OLAVANNA VILLAGE, KOLAKKAD, KUNNATHPALAM, KOZHIKODE. 2. V.ANUROOP S/O. LATE T.VISWANATHAN, PUTHIYEDATH HOUSE, OLAVANNA VILLAGE, KOLAKKAD, KUNNATHPALAM, KOZHIKODE. 3. V.ANUSREE D/O. LATE T.VISWANATHAN, PUTHIYEDATH HOUSE, OLAVANNA VILLAGE, KOLAKKAD, KUNNATHPALAM, KOZHIKODE. 4. T.DEVAKI AMMA M/O. LATE T.VISWANATHAN, PUTHIYEDATH HOUSE, OLAVANNA VILLAGE, KOLAKKAD, KUNNATHPALAM, KOZHIKODE. BY ADV. SRI.THOMAS ANTONY RESPONDENT: RESPONDENT/RESPONDENT ------------------------------------ UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGR, SOUTHERN RAILWAYS, CHENNAI. ADV. SRI.VARGHESE P.THOMAS, SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/ 02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A. NO. 31 OF 2004-E ----------------------------------------- Dated 13th February, 2009. JUDGMENT Balakrishnan Nair, J. The appellants were the applicants in O.A.No.97/1998, filed under Section 16 of the Railway Claims Tribunal Act, 1987, before the Railway Claims Tribunal, Ernakulam Bench. The husband of the 1st appellant and father of appellants 2 and 3 late T.Viswanathan met with a fatal accident, while he was entering a passenger train at Calicut Railway Station at 4.10 a.m on 17.10.1997. The case was posted for evidence on 24.8.2001. But, the applicants' counsel Sri.K.K.Krishna Kumar was suffering from renal disorder and was undergoing treatment. Therefore, he could not be present in court on the said date. So, the O.A was dismissed for default. The appellants submit, the Claims Tribunal was irregular in its sittings and the counsel came to know of the dismissal of the O.A only after about three months. So, immediately, he filed a petition to restore the O.A., along with I.A.No.45/2001, to condone the delay of 66 days in filing the restoration MFA 31/2004 2 petition. The Tribunal heard the I.A to condone the delay and dismissed the same, holding that no grounds were made out to condone the delay, by order dated 5.9.2003. Challenging that order, this appeal is filed. 2. The learned counsel for the appellants submitted that Exts.C1 to C3 discharge summary would show that the counsel for the applicants was undergoing treatment at P.V.S. Hospital, Kozhikode and he could not have appeared before the Tribunal on 24.8.2001. But, the Tribunal found fault with the counsel for not making alternative arrangement. The Tribunal also relied on the submission of the respondent that he failed to produce any medical certificate to show his inability to attend the court proceedings. 3. From Exts.C1 to C3, it is clear that the applicants' counsel could not have appeared before the Tribunal on 24.8.2001. Normally, he should have made arrangement for the conduct of the case. Even assuming there are some laches in this regard, we feel that the same should not have been taken as a ground to throw out the application of the appellants/applicants. The delay of 66 days should have, normally, been condoned by the Tribunal, so that the claimants get a fair chance to contest the claim on merits. This view taken by us fully finds support from the decision of the Apex Court in Collector, Land Acquisition, Anantnag v. Katiji [AIR 1987 SC 1353]. Going by the principles laid down by the Apex Court in the MFA 31/2004 3 above decision, the delay was liable to be condoned. We notice that the application to condone the delay stands dismissed on flimsy grounds. When Exts.C1 to C3 were available, it was not necessary to produce a medical certificate, showing the disability of the counsel for the applicants. We find it difficult to support the view taken by the Tribunal. In the result, the impugned order is set aside. I.A.No.45/2001 is allowed and the Tribunal is directed to consider the petition for restoration D No.182/2001 in accordance with law. The M.F.A is allowed as above with costs. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/