IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 446 of 2009(B)
1. MATHEW.K.JOSEPH, KUDAKKACHIRA HOUSE
... Petitioner
Vs
1. VARADARAJAN, OCHIRA HOUSE, KOOTHUPARAMBU
... Respondent
2. SASIDHARAN, THAIKANDY KOTTAI HOUSE
3. NEW INDIA INSURANCE COMPANY LTD.,
For Petitioner :SRI.SEBASTIAN DAVIS
For Respondent :SMT.M.HEMALATHA
The Hon'ble MR. Justice V.RAMKUMAR
Dated :09/07/2009
O R D E R
V. RAMKUMAR, J.
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M.A.C.A.Nos.205,206,446,517
and 1131 of 2009
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Dated this the 9th day of July, 2009
JUDGMENT
All these appeals are filed by the claimants in a road traffic
accident involving a jeep and lorry which took place in
23.1.1992. The claimants are the passengers in the jeep.
M.A.C.A.Nos.206,446 and 1131 of 2009 are arising out of O.P.
(M.V) Nos.618, 621 and 619 of 1993 on the file of the M.A.C.T,
Irinjalakuda. The Tribunal had dismissed for default the
aforesaid O.P.(M.V)s on 1.11.2001. Applications for restoration
of O.P.(M.V)s, which were dismissed for default, were filed by
the appellants. Those restoration applications were also
dismissed for default on 29.4.2003. Thereupon the claimants
filed applications to restore the restoration petitions which had
been dismissed for default. The second set of restoration
petitions were filed along with petitions to condone the delay in
filing the said restoration petitions. On 16.2.2009, the Tribunal
allowed the delay petitions as well as the 2nd restoration petitions
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on costs. The cost was paid on 21.5.2007. Thereafter, the
Tribunal took up the petitions to restore the O.P(M.V)s dismissed
for default and as per the impugned orders dated 9.9.2008
dismissed the restoration petitions. Hence M.A.C.A Nos.206,446
and 1131 of 2009.
2. In M.A.C.A.Nos.205 and 517 of 2009 arising out of O.P.
(M.V)Nos.620 and 622 of 1993, the Tribunal had dismissed the
O.P(M.V)s for default on 3.12.2004. Applications for restoring
the O.P.(M.V)s back to file were filed along with petitions to
condone the delay. As per the impugned orders dated 9.9.2008,
the Tribunal dismissed the applications to condone the delay and
consequently the restoration petitions. These are the orders
challenged in two M.A.C.As referred to above.
3. In M.A.C.A.No.206 of 2009, this Court had ordered
notice only to the 3rd respondent, insurer of the lorry in question.
In the other appeals eventhough this Court had ordered notice
to all the three respondents, the 3rd respondent insurer alone has
been duly served. The owner and driver of the lorry in question
are either not served or the acknowledgment of service has not
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returned after service. Having regard to the fact that none of
the O.P.(M.V)s has been disposed of on merits, I do not think that
there is any point in keeping these appeals pending before this
Court any longer. Hence, notice to those respondents who have
not been not served so far, is dispensed with. Even with regard
to those appeals in which all the respondents have been served,
there is no appearance for any of them except the Insurance
Company which is the common 3rd respondent in all these
appeals. Even the insurer has entered appearance only in 3 of
the appeals.
4. I heard the learned counsel appearing for the appellants
in all these appeals as well as the learned counsel appearing for
the Insurance Company.
5. The long and short of the case is that not withstanding
the fact that the accident took place on 23.1.1992 and
applications for compensation by the injured persons were filed
in the year 1993, there has been no disposal of these
applications on the merits even after 16 years. It may be true
that the appellants or their counsel appearing before the
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Tribunal have been guilty of laches. . But that is no reason to
visit the appellants (who cannot be said to be grossly negligent)
with an order of dismissal for default without consideration of
their case on merits. Since the 3rd respondent Insurance
Company alone has entered appearance, I propose to dispose of
these appeals without taking a technical view of confirming the
orders dismissing the restoration petitions. However, the
appellants will have to be put on terms for all that has happened.
Accordingly, these appeals will stand allowed and the impugned
order will stand set aside on condition that the appellants, in
M.A.C.A Nos.205,206 and 446 of 2009 pay to the 3rd respondent
-Insurance Company a sum of Rs.500/-(Rupees five hundred only)
in each of the three appeals by way of costs. The cost shall be
paid to the counsel appearing for the Insurance Company within
seven days from today. In case the cost as ordered above is not
paid , these appeals will stand dismissed confirming the orders
passed by the Tribunal.
6. Immediately after pronouncing the order, the learned
counsel appearing for the appellants in I.A.No.205,206 and 446
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of 2009 paid the costs to the different counsel appearing for the
3rd respondent, Insurance Company namely Adv.Sri.Mohammed
Usman, Adv.Sri.P.K.Babu and Adv.Smt.Hemalatha, all of whom
orally acknowledged receipt of the costs.
Accordingly, the impugned orders will stand set aside and
O.P.(M.V) Nos. 618,619,620,621 and 622 of 1993 shall stand
restored to file before the MACT, Irinjalakuda with a direction to
dispose of the same on the merits. There shall be no order as to
costs.
Dated this the 9th day of July, 2009.
V. RAMKUMAR, JUDGE
sj