Mary Shaji v. Santosh, Manoj, and The Branch Manager, National Insurance Company Ltd., Idukki

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 26407 of 2008(R) -------------------------AGAINST THE ORDER DATED 07/04/2008 IN IN UN.OP(MV) IN IA.447 A/2008 of ADDL. DISTRICT COURT-II, MAVELIKKARA .................... PETITIONER(S): --------------- MARY SHAJI,W/O.SHAJI, SINU BHAVAN, DALAVA MADAM PALACE WARD, KRISHNAPURAM VILLAGE, KAYAMKULAM. BY ADV. SRI.VINCENT JOSEPH RESPONDENT(S): --------------- 1. SANTHOSH, S/O.RAMACHANDRAN, KOLLAYIL VEEDU, CHEERAVALLY, KAYAMKULAM. 2. MANOJ, S/O.PURUSHAN, KOLLAKAPEETATHIL, PELA MURI, KANNAMANGALAM VILLAGE, MAVELIKARA. 3. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD, IDUKKI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **W.P.(C) No. 26407/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF THE APPLICATION FOR COMPENSATION FILED BY THE PETITIONER BEFORE THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA DATED 4.3.2008** - **EXT.P2 : COPY OF THE IA NO.447(A)/08 FILED BY THE PETITIONER BEFORE THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA DATED 4.3.2008** - **EXT.P3 : COPY OF THE ORDER IN IA NO.447(A)/08 DATED 7.4.2008 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE** vps ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No. 26407 OF 2008 -------------------------Dated this the 3[rd] day of November, 2011** ## **J U D G M E N T** Ext.P3 order passed by the Motor Accidents Claims Tribunal, Mavelikara on I.A. No.447 (A) of 2008 dismissing the application filed by the petitioner to exempt her from paying the court fee on a claim petition filed by her seeking payment of the sum of Rs.3,00,000/- as compensation for the injuries sustained by her in a motor accident and the consequential order rejecting the claim petition is under challenge in this writ petition. The brief facts of the case are as follows:- 2. The petitioner filed Ext.P1 claim petition dated 4.3.2008 in the Additional Motor Accidents Claims Tribunal, Mavelikara claiming that she was injured in a motor accident. Along with that application, she filed Ext.P2 application which was numbered as I.A. 447 (A) of 2008 for an order exempting her from paying the prescribed court fee of Rs.2,372.50 calculated in terms of rule 397 (1) of the Kerala Motor Vehicles Rules, 1989. In the affidavit filed in support of the application for exemption from payment of court fee, the petitioner had stated that in the WPC No.26407/2008 2 accident both her legs were fractured and consequently the computer centre which she was running was closed and therefore she is not in a position to pay the court fee. In the claim petition, the petitioner had claimed that she was earning a monthly income of Rs.8,000/-. She had also stated in column 4 that she was employed as a computer operator and in column 5 she had stated that she is self-employed. 3. When the application was taken up for consideration on 4.3.2008, the Motor Accidents Claims Tribunal posted the application for further hearing to 17.3.2008. On 17.3.2008, neither the petitioner nor her counsel was present. There was also no representation on her behalf. On that day after finding that the petitioner is having sufficient means to pay the court fee, the Motor Accidents Claims Tribunal passed an order directing payment of the court fee within one week. Since court fee was not paid, the Motor Accidents Claims Tribunal posted the application for orders on 7.4.2008. On 7.4.2008, the impugned order was passed dismissing the application and rejecting the claim petition. Hence this writ petition. The impugned order WPC No.26407/2008 3 ## reads as follows: _“Counsel for the petitioner submitted that he is not paying Court Fee. Office reported that no C.F. is paid till 5.00 p.m. This court on 4.3.2008 ordered that the statement of the petitioner is not sufficient to exempt him from payment of Rs.2,372.50, because in the petition is stated that he is conducting a computer centre and his income is shown as Rs.8,000/- per month, and therefore it cannot be said that he is having no sufficient means to pay the C.F. and therefore this I.A. is posted for hearing on 17.3.2008. But on 17.3.2008 neither the petitioner nor his counsel appeared and there was no representation for the petitioner. So on that day this court found that the petitioner is having sufficient means to pay the Court Fee and therefore the petitioner is directed to pay the C.F. within one week. But the C.F. is not paid as directed and therefore the I.A. is posted today. But no C.F. Is paid. So this I.A. is dismissed and therefore the petition is rejected._ 4. The Motor Accidents Claims Tribunal has in passing the impugned order relied on the claim made by the petitioner in column 6 of the claim petition that she was earning a monthly income of Rs.8,000/-. In that view of the matter, the Motor Accidents Claims Tribunal held that it cannot be said that she is not having sufficient means to pay the court fee. It was in view of that finding that the Motor Accidents Claims Tribunal directed the petitioner to pay court fee on 17.3.2008. Neither the WPC No.26407/2008 4 petitioner nor her counsel was present on 17.3.2008 when such an order was passed. Evidently that was the reason why the court fee was not paid. When the application stood posted for further hearing on 7.4.2008, the learned counsel appearing for the petitioner submitted that he is not paying the court fee. It was for that reason that the application was dismissed and consequently the claim petition was rejected. 5. Though this Court has in **Suma v. Rajesh** (2011 (4) KLT 109) held that the scope of an enquiry sub rule (2) of rule 397 of the Kerala Motor Vehicles Rules is not akin to an enquiry under order XXXIII of the Code of Civil Procedure and had also allowed the application seeking exemption from payment of court fee, such exemption was granted having regard to the fact that the claimants therein were the wife and minor children of the deceased who was the sole bread winner of the family. In the instant case, the petitioner is gainfully employed as a computer operator. She had also stated that her monthly income was Rs.8,000/-. Such being the situation, it cannot be said that even applying the principles laid down by this Court in **Suma v.** WPC No.26407/2008 5 **Rajesh** (Supra) the petitioner has made out a case warranting interference with the impugned order. I am however of the opinion that the petitioner should be granted another opportunity to pay the court fee of Rs.2,372.50 so that she can have the claim petition decided on the merits. I accordingly enlarge the time for payment of the court fee Rs.2,372.50 till 30[th] November, 2011. I accordingly dispose of the writ petition with the direction that in the event of the petitioner paying the court fee of Rs.2,372.50 on or before 30.11.2011, the impugned order shall stand set aside and the claim petition, which was rejected by Ext.P3 order, shall stand restored to file. **P.N.RAVINDRAN,** **(JUDGE)** vps WPC No.26407/2008 6