IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 WP(C).No. 28175 of 2010(V) -------------------------- OPMV.1194/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... PETITIONER(S): --------------- BINEESH, AGED 22 YEARS, S/O.SEKHARAN, KUTTIKKATTIL HOUSE, P.O.OMANNOOR, PONNAD, MALAPPURAM. BY ADV. SMT.T.V.NEEMA RESPONDENT(S): --------------- 1. MUNGODAN ANVAR, S/O.MOIDEEN KUTTY, THADAPARAMBIL HOUSE, P.O.OMANNUR, B.NO.1865/05, MALAPPURAM DISTRICT-673 640. (DRIVER OF KL-03 K.3957 ATORIKSHAW) 2. U.MOHAMMED ALI, S/O.GHAMZA, ULLADAM HOUSE, POOLAKKAL, VETTIPPARA, ARECODE VIA, MALAPPURAM DISTRICT-673 639. (OWNER) 3. NEW INDIA ASSURANCE CO.LTD., FIRST FLOOR, TARRIFF, BAZAR, OPP.TOWN HALL, TIRUR-676 101. (INSURER) BY ADV. SMT.M.HEMALATHA FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No. 28175 of 2010 ------------------------------- Dated this the 6th day of April, 2011 J U D G M E N T The petitioner is the claimant in O.P.(M.V) No.1194 of 2007 on the file of the Motor Accidents Claims Tribunal, Manjeri. The said claim petition was filed claiming the sum of Rs.25,000/- as compensation from the driver, owner and insurer of an autorickshaw being registration No. KL 03/K 3957. It is alleged that the said autorickshaw collided with the motor bike driven by the petitioner as a result of which he sustained severe injuries. The claim petition was filed in the year 2007. It appears notice had not been served on the owner of the autorickshaw. When the claim petition was posted before the Tribunal on 25.4.2009, the petitioner’s counsel was not present. On noticing that the petitioner has not taken steps to serve notice on the second respondent and there was no representation for the petitioner, the claim petition was dismissed for default by Ext.P1 order passed on 25.4.2009. The petitioner thereupon filed I.A.No.1618 of 2009 under Order IX Rule 9 of the Code of Civil Procedure to set aside Ext.P1 order accompanied by I.A.No.1617 of 2009 to condone the delay of 23 days in filing I.A.No.1618 of 2009. By Ext.P3 order passed on 7.8.2010, both the applications were dismissed. Hence this writ petition challenging Exts.P1 and P3 orders. W.P.(C) No.28175 of 2010 2 2. Ext.P3 order passed by the Motor Accidents Claims Tribunal dismissing the application for restoration and the application to condone the delay in filing the said application discloses that the notice issued in the claim petition to the second respondent, the owner of the autorickshaw had not been served on him and was returned with the endorsement “left India”. When the case was called on for hearing on 25.4.2009, on noticing that steps had not been taken to serve notice on the second respondent and in view of the fact that learned counsel for the petitioner was not present, the Motor Accidents Claims Tribunal dismissed the application for default. In other words, the application was dismissed for the reason that the petitioner had not taken steps to effect service of notice on the second respondent and his counsel was not present. From the materials on record, it is evident that even if the petitioner’s counsel had been present on 25.4.2009 as the second respondent has not been served, it would not have been possible for the Tribunal to proceed to dispose of the case on the merits. The Tribunal could have only directed that notice be taken out in the conventional manner on the second respondent or by way of substituted service. In such circumstances, I am of the opinion that the Tribunal ought to have W.P.(C) No.28175 of 2010 3 afforded the petitioner an opportunity to have the claim petition decided on the merits. The interests of the insurer could have been safeguarded by directing that the period during which the claim petition stood dismissed for default, the petitioner will not be entitled to interest on the compensation, if any, awarded to him. I therefore allow the writ petition, quash Exts.P1 and P3 orders and restore O.P.(M.V.) No.1194 of 2007 to the file of the Motor Accidents Claims Tribunal, Manjeri. The petitioner and the third respondent shall appear before the Motor Accidents Claims Tribunal on 27.4.2011 through their counsel. The Motor Accidents Claims Tribunal shall issue notice to respondents 1 and 2 and dispose of the claim petition on the merits. The third respondent shall file written statement, if any, within one month from 27.4.2011. Needless to say, the petitioner will not be entitled to interest on the compensation, if any, awarded to him for the period from 25.4.2009 till today. P.N. RAVINDRAN, JUDGE. nj.