M.A.C.A.NO.833 OF 2010 (OP(MV) No.89/2002 of Motor Accident Claims Tribunal, Thalassery)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **&** **THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932** **MACA.No. 833 of 2010()** **--------------------------------OP(MV)NO .89/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** **....................** ## **APPELLANT(S): PETITIONER** **-------------------------------------------** - **T.M.DAMODARAN, S/O.KRISHNAN, AGED 49 YEARS, NO OCCUPATION, THATTUM VEEDU, KARAYIL,(POST), ANNUR, (VIA) PAYYANNUR.( DIED)** - **LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT** ## **2. WIFE: PUTHIYADATH PADMAVATHI, AGED 59 YEARS** ## **CHILDREN** **3. P.RAJESH KUMSR, AGED 38 YEARS, BAKERY WORKER** **4. P. RAJASHEKHARAN, AGED 36 YEARS, BAKERY WORKER.** **5. P.RAMESHAN, AGED 34 YEARS, DRIVER** **6. P. RANJITH, AGED 31 YEARS, TILES WORKER** ## **ALL ARE RESIDING AT THATTUM VEEDU, KARAYIL, (POST) ANNUR, (VIA) PAYYANNUR- 670 307** - **ADDL. APPELLANTS 2 TO 6 IMPLEADED AS THE LRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 11/2/2011 IN I.A.NO.4162011** **BY ADV. SRI.MAHESH V.RAMAKRISHNAN** ## **RESPONDENT(S): RESPONDENTS** **----------------------------------------------------** **1. AVARONTHAN VEETTIL PRAKASHKUMAR, S/O.JANAKI AMMA, AGED 35 YEARS, KAKKUNNAM, THEKKA THRIKARIPUR (PO), KASARAGOD (DIST.).** **sts** **-2-** **M.A.C.A.NO.833/2010** **-2-** **2. M.T.P.MOOSSA, S/O.AHAMMAD, MANAKKAD THEKKE PURAYIL, (POST) PILICODE, CHEMMENI, HOSDURG TALUK, KASARAGOD (DIST.).** **3. UNITED INIDA INSURANCE CO.LTD., REHMATH SHETTY COMPLEX, KOTTACHERRY, KANHANGAD, KASARAGOD (DIST.).** **R3 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **A.K. BASHEER & P.Q. BARKATH ALI,JJ.** ........................................... M.A.C.A.NO.833 OF 2010 ............................................. Dated this the 16[th] day of February, 2011. ## **J U D G M E N T** ## **Basheer, J:** Appellants are stated to be the legal representatives of an injured - victim of a road traffic accident, that occurred in 1993. 2. Initially, the victim claimed compensation from the respondents herein under Section 166 of the Motor Vehicles Act, 1988 for the alleged injuries sustained by him in the accident in OP(MV)No.2014/1993. But the said claim petition was dismissed by the Tribunal on May 15, 1996 on the ground that the claimant had failed to pay process to take out notice to respondent No.2. The claimant filed I.A.No.2175/1996 to restore his claim petition under Order IX Rule 9 of the Code of Civil Procedure. However, the said application was dismissed by the Tribunal by its order dated September 22, 2001 holding that the claimant had failed to prove that he was prevented from furnishing : 2 : M.A.C.A.NO.833 OF 2010 sufficient cause in remitting the process fee. 3. The claimant thereafter filed OP(MV)No.89/2002 seeking compensation from the very same respondents. But the Tribunal has dismissed the claim petition by the impugned award holding that a fresh application on the very same cause would not be maintainable. Hence, this appeal. 4. Shortly after filing this appeal, the victim passed away. His legal representatives are now prosecuting this appeal. 5. As rightly contended by the learned counsel for the appellants, the first claim petition filed by the claimant was not decided on merit. Admittedly it was dismissed because of failure of the claimant to pay process. It is true that the claimant had filed a petition for restoration under Order IX Rule 9 of the Code; but the said application was also dismissed solely on the ground that the claimant had not shown sufficient reason for restoration. 6. Having heard learned counsel for the appellants and learned counsel for respondent No.3, we have no : 3 : M.A.C.A.NO.833 OF 2010 hesitation to hold that the Tribunal was not justified in dismissing the claim petition on the ground that the issue had already been foreclosed on dismissal of the earlier application for default. ## 7. In **N.K.V. Brothers (P). Ltd. v. M. Karumai** **Ammal** (AIR 1980 SC 1354) the apex court has held that The Tribunal constituted under the Act should take due care to ensure that the claim petitions are not dismissed on technical grounds. (The Division Bench had also referred to various provisions under the Act and also the relevant Rules in Kerala Motor Vehicles Rules, 1989 in this context). Their Lordships further reminded that innocent victims should not suffer and drivers and owners are not allowed to escape from liability merely because of some doubt here or some obscurity there. The court further observed thus: “The court should not succumb to niceties, technicalities and mystic maybes”. 8. A Full Bench of this Court in **Jacob Thomas v. Pandian** (2005 (4) KLT 545) has held that the Tribunal can dismiss a claim petition, if the claimant is guilty of : 4 : M.A.C.A.NO.833 OF 2010 contumacious conduct or laches in prosecuting his petition and also if it is evident that the claimant is not interested in prosecuting his case. The Full Bench further held that in such instances the Tribunal can invoke the power under Order IX Rule 8 of the Code. 9. In the case on hand, it is seen from the records that there was no contumacious conduct or laches on the part of the claimant. It is pointed out by the learned counsel that respondent No.2 could not be served because there was some error in the address shown in the process memo. Anyhow the fact remains that immediately after dismissal of the claim petition, the claimant had filed the restoration petition under Order IX Rule 9. This will indicate that the claimant was vigilant enough in prosecuting his case. In any view of the matter we are satisfied that the legal representatives of the deceased claimant have to be given an opportunity to prosecute the case. 10. Therefore, the impugned award is set aside. The Tribunal is directed to restore OP(MV)No.89/2002 on its file and dispose it of in accordance with law after affording : 5 : M.A.C.A.NO.833 OF 2010 sufficient opportunity to the parties to adduce evidence. Parties are directed to appear before the Tribunal on May 23, 2011. The appeal is disposed of in the above terms. **A.K. BASHEER, JUDGE.** **P.Q. BARKATH ALI, JUDGE.** **cl** : 6 : M.A.C.A.NO.833 OF 2010