IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 OP (MACT).No. 123 of 2011(O) ---------------------------- OPMV.2411/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... PETITIONER ------------------------------ O.P.JOHN, S/O.PAILY, OTTARVELIL HOUSE, EDAKKATTUVAYAL, ERNAKULAM DISTRICT. BY ADV. SRI.MANOJ P.KUNJACHAN RESPONDENT(S): --------------- 1. BABU @ FRANCIS M.J., MAINATTUPARAMBU, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 2. NATIONAL INSURANCE COMPANY LTD., MYDILY MANDIRAM, JAMATHA JUNCTION, PALARIVATTOM, KOCHI. 3. NATIONAL INSURANCE COMPANY LTD., DHAMODAR CHAMBER, STATUE JUNCTION, THRIPUNITHURA. ADV. SRI.LAL GEORGE FOR R2-3 THIS OP (MACT) HAVING BEEN FINALLY HEARD ON 18/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(MAC)No.123/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE ORDER IN OP(MV)NO.2411/2004 DATED 3.1.2008 EXT.P2. TRUE COPY OF THE I.A.NO.830/2010 EXT.P3. TRUE COPY OF THE I.A.NO.829/2010 EXT.P4. TRUE COPY OF THE COMMON ORDER DATED 11.8.2010 IN I.A.829 AND 830 OF 2010 IN OP(MV)NO.2411/2004 / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- O.P(MAC).No.123 of 2011 ----------------------------------------- Dated this the 18th day of February, 2011 JUDGMENT The petitioner is the claimant in O.P.(MV)No.2411 of 2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The claim petition was filed seeking payment of Rs.1 lakh as compensation for the injuries sustained by the petitioner in a motor accident. The first respondent herein is the owner and driver of the offending vehicle and respondents 2 and 3 are the insurers of the vehicle which the petitioner was driving and the offending vehicle. Since the first respondent did not enter appearance and file written statement, he was set ex parte on 3.10.2008. Since the learned counsel for the petitioner did not appear and there was no representation, the claim petition was dismissed for default on that day by Ext.P1 order. More than one year thereafter, the petitioner filed Ext.P2 petition (I.A.No.830 of 2010) to set aside the order dismissing the claim petition for default accompanied by Ext.P3 petition (I.A.No.829 of 2010) to condone the delay of 456 days in filing the former application. O.P(MAC).No.123 of 2011 -:2:- Notice on the applications was served on the first respondent, who again did not appear. Respondents 2 and 3 were heard. By Ext.P4 order passed on 11.8.2010 the Motor Accidents Claims Tribunal dismissed both the applications. Hence this writ petition challenging Exts.P1 and P4 orders. 2. I heard Sri.Manoj P.Kunjachan, learned counsel appearing for the petitioner and Sri.Lal George, learned counsel appearing for respondents 2 and 3. The counsel for the petitioner had averred in the affidavit filed by him in support of the applications that due to an inadvertent omission his clerk did not notice the posting of the case to 3.10.2008, that after the posting on 5.5.2008 he had shifted his office from Layam Road to Mullassery Canal Road, that in the process the case escaped his attention, that in January 2009 his clerk left him on securing employment in government service and that he was unaware of the dismissal of the claim petition for default or the posting of the case on 3.10.2008. By the impugned order the Tribunal dismissed the applications holding that the explanation offered for the delay is not acceptable. It was held that the counsel and the party were O.P(MAC).No.123 of 2011 -:3:- not vigilant in prosecuting the case. The fact that the petitioner had sustained injuries in the accident that took place on 3.9.2003 is not in dispute. The insurer does not also dispute the fact that the offending vehicle was covered by a valid policy of insurance. In such circumstances I am of the opinion that the Tribunal ought to have afforded an opportunity to the petitioner to have his claim decided on the merits. The Tribunal could have even while restoring the claim petition to file directed that the petitioner will not be entitled for interest during the period when the claim petition stood dismissed for default. If such a course of action had been adopted it would not have caused any prejudice to the insurer and would have at the same time protected the interests of the petitioner. I am therefore, of the considered opinion that Ext.P4 order cannot be sustained. In the result I allow the writ petition, quash Exts.P1 and P4 orders and restore O.P(M.V)No.2411 of 2004 to file. The Tribunal shall dispose of the claim petition expeditiously and in any event within six months from the date of receipt of a copy of this judgment. It is however, clarified that in the event of the claim O.P(MAC).No.123 of 2011 -:4:- petition being allowed the petitioner will not be entitled to interest on the compensation awarded during the period from 3.10.2008 till today. The parties shall appear before the Motor Accidents Claims Tribunal, Ernakulam on 14.3.2011. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P(MAC).No.123 of 2011 ---------------------------- JUDGMENT 18th February, 2011