IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37894 of 2003(J)
1. SHAJI S/O. PARAMESWARAN,
... Petitioner
Vs
2. BENNY S/O. THOMAS, MUNDAYANIYIL HOUSE,
... Respondent
1. NIXON PAUL, THAIKKATTIL HOUSE,
3. THE ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.JOMY GEORGE
For Respondent :SRI.P.M.JOSHI
The Hon'ble MR. Justice V.K.MOHANAN
Dated :21/08/2009
O R D E R
V.K.MOHANAN, J.
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W.P (C).No. 37894 of 2003 - J
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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
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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
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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
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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
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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
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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
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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
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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
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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/
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V.K.MOHANAN, J.
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Crl.R.P.NO. OF 200
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J U D G M E N T
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DATED: -2-2008