IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 37894 of 2003(J) ------------------------------------- PETITIONER(S): ------------------------ SHAJI S/O. PARAMESWARAN, THANNICHOTTIL HOUSE, THAMARAKKATTU KARA, VELIYANNUR VILLAGE. BY ADV. MR.JOMY GEORGE RESPONDENT(S): -------------------------- 1. NIXON PAUL, THAIKKATTIL HOUSE, HOUSE NO.239, WARD NO.IV, PIRAVOM PANCHAYAT, PIRAVOM. 2. BENNY S/O. THOMAS, MUNDAYANIYIL HOUSE, POOVAKKULAM KARA, VELIYANNUR VILLAGE. 3. THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, KOTHAMANGALAM. R2 BY ADVS. MR.P.M.JOSHI, MR.JOJO VARGHESE. R3 BY MR.P.JACOB MATHEW R3 BY MR.MATHEWS JACOB, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37894/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CLAIM PETITION FILED BY THE PETITIONER AS OP. (MV) NO.1293/90 DTD. NIL. P2:- COPY OF THE AFFIDAVIT AND RESTORATION PETITION FILED BY THE PETITION FILED BY THE PETITIONER AS IA. NO.911/92 DTD. 24.3.92. P3:- COPY OF THE ORDER IN IA. 911/92 DTD. 26.11.02 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL , KOTTAYAM. TRUE COPY P.S. TO JUDGE tss V.K.MOHANAN, J. --------------------------------------------- W.P (C).No. 37894 of 2003 - J --------------------------------------------- Dated this the 21st day of August, 2009 J U D G M E N T The petitioner is the claimant in O.P.(MV) No.1293 of 1990, pending before the Motor Accidents Claims Tribunal (for short the 'M.A.C.T.'), Kottayam. He approaches this Court with a prayer to quash Ext.P3 order of the M.A.C.T., Kottayam. It is also prayed to restore O.P.(MV) No.1293/1990 to the file of the said M.A.C.T. The third prayer is to issue a writ of mandamus or any other appropriate writ, order or direction, directing the M.A.C.T., Kottayam to reconstruct the file of O.P.(MV) No.1293/1990 and dispose of the matter on merit. 2. According to the petitioner, on 15.4.1990, at about 10.45 a.m. while he was travelling in an Autorickshaw, due to the over speed and negligent driving of the second respondent, the vehicle lost control and the petitioner was thrown out of the WP(C) NO.37894 of 2003 :-2-: vehicle and met with an accident and he was hospitalised and he had undergone two operations in the Medical College Hospital because of the seven injuries sustained by him during the said accident. Thus, he preferred the above claim petition claiming an amount of Rs.1,62,000/- as compensation. The said claim petition was dismissed on 24.2.1992 as no court fee was paid. But, on 24.3.1992, he had filed a restoration petition as I.A.No.911 of 1992. Ext.P2 is the copy of such petition. It was adjourned for return of notice to 18.8.1992. In the mean while, the third respondent therein filed objection and the same was adjourned for return of notice of R1 and R2 to 14.1.1993. On 14.1.1993, the second respondent was declared as ex parte and the case was adjourned for return of notice of R1 to 10.2.1993. The petition was again adjourned to 1.4.1993 and on that day, it was WP(C) NO.37894 of 2003 :-3-: adjourned to 31.8.1995. After 31.8.1995, there was no posting. 3. According to the petitioner, on enquiry, it was realised that the file was missing from the records of the court. Though the court staff, including the Bench Clerk, assured him to trace out the file, the same was not located and hence, he filed I.A.No.2588 of 1999, a complaint before the Tribunal to trace out the file. It is specifically averred in page 6 of the petition that when the petitioner contacted the Bench Clerk, the petitioner was informed that the learned Presiding Officer of the M.A.C.T. had instructed the claimant to file a copy of the restoration petition since the original was missing from the file. Thus, according to the petitioner, a copy of the restoration petition was filed based upon which steps were ordered and the case was adjourned for return of notice to R1 and WP(C) NO.37894 of 2003 :-4-: R2 to 30.9.1999. According to the petitioner, in the mean while, he paid the full court fee as insisted by the court on 23.2.2002. 4. That being the position, on 26.1.2002, the M.A.C.T. issued Ext.P3 order by which I.A.No.911 of 1992 was dismissed stating, that was a copy of petition filed on 24.3.1992 and appropriate course, which ought to have been adopted by the petitioner, was for reconstruction of the original petition by getting an order from the High Court for permission to reconstruct the original petition and filing a copy of the petition with an antedate and seeking for an order on such petition, is quite unknown. It is the above order challenged in this writ petition. 5. When the case is taken up for consideration today, none of the counsel was present to argue the matter. 6. Sections 140 and 166 of the Motor WP(C) NO.37894 of 2003 :-5-: Vehicles Act, 1988 are specifically incorporated with a view to grant relief to the victims of the accident and their dependents. The cause of action for filing the writ petition itself arose due to the dismissal of the claim petition not on merit, but for not paying the court fee. Due to the denial, whatsoever the reason for restoration of the petition, the ultimate result is the denial of the welfare measures contemplated by the above provisions to the claimant if he is otherwise deserved for it. Therefore, even in the absence of counsel for the contesting parties, I am inclined to consider the petition on merit. 7. By order dated 10.2.2009, this Court directed the Registry to obtain a report from the M.A.C.T., Kottayam as to whether the records in O.P (MV) No.1293/1990 including copies of I.A.No.911/1992, are available. In reply to the WP(C) NO.37894 of 2003 :-6-: memo sent from the Registry of this Court, the Presiding Officer of the M.A.C.T., Kottayam, in his letter dated 12.2.2009 informed that the records of O.P(MV) No.1293 of 1990 are traced out and O.P.No.1293/1990 and I.A.No.2588/99 were brought to his notice. But, it is reported that I.A.No.911 of 1992 is not traced out. It is reported that he had also come across with the order passed by his predecessor in respect of I.A.No.911/92 in O.P.(MV) No.1293/90. It is also stated that though a thorough search was undertaken, I.A.No.911 of 1992 is not traced out. But the case records in O.P(MV) No.1293 of 1990 are available. 8. In the light of the averments contained in the writ petition and from the report of the M.A.C.T., Kottayam, it appears that I.A.No.911 of 1992 was mis-placed from the case bundle for no fault of the petitioner/claimant. Though it is stated WP(C) NO.37894 of 2003 :-7-: in the writ petition that copy of I.A.No.911 of 1992 was filed as directed by the Presiding Officer, the said contention or said assertion is not supported by any material or evidence. Therefore, the reason assigned by the M.A.C.T. in Ext.P3 to reject the petition cannot be found as illegal or arbitrary or improper. 9. When this writ petition came up for admission, this Court ordered urgent notice to the respondents. Thus, the service is complete and necessary parties are on record and for deciding the question of restoration of the claim petition, the same need not be remitted back. In fact, the claim petition pertains to the year 1990, connected with an accident taken place on 15.4.1990. Initially, the claim petition was dismissed for not paying the court fee, which has been, subsequently, paid by the petitioner. The case was not finally disposed of on WP(C) NO.37894 of 2003 :-8-: merit for the last 19 years due to the reason that the file, in the above O.P.(MV) including I.A.No.911 of 1992, could not be traced out. As there is no fault on the part of the petitioner, other than the payment of the court fee at appropriate time, for the mis- placement of the file or failure in tracing out of the file, the petitioner shall not be deprived of his right to get compensation, if the same is otherwise proper and in order and allowable on merit. 10. In the light of the above facts and circumstances and the discussion, I am of the view that this writ petition can be disposed of directing the M.A.C.T., Kottayam to restore O.P(MV) No.1293 of 1990 to file and dispose of the same on merit, after hearing all the parties concerned on securing their presence. In the light of the above direction, no further orders are necessary, in terms of the third prayer in the writ petition. As this Court WP(C) NO.37894 of 2003 :-9-: ordered to restore O.P(MV) No.1293 of 1990 to the file of the M.A.C.T., Ext.P3 order stands quashed. The M.A.C.T., Kottayam is directed to see that the matter is disposed of as expeditiously as possible as the same pertains to the year 1990. The writ petition is disposed of as above. V.K.Mohanan, Judge. MBS/ WP(C) NO.37894 of 2003 :-10-: V.K.MOHANAN, J. ----------------------------------------- --- Crl.R.P.NO. OF 200 -------------------------------------- ------ J U D G M E N T WP(C) NO.37894 of 2003 :-11-: DATED: -2-2008