Allowed

Gomathiyamma v. Babu Kuriakose

Kerala HC31 Aug 2016OP (MAC)/93/2016

Case brief

AI extract

What is this about?

A CM appeal challenging the MACT's dismissal of an application to set aside a default order and restore a claim petition. The High Court quashed the Tribunal's order for being irrational, noting the commonality of clerical date errors, and restored the petition to the Tribunal with a directive to decide within four months.

What did the court decide?

Quashed the Tribunal's order allowing Ext.P2 application; restored OP(MV)No.828/2007 to the Tribunal's files; directed disposal within four months.

Gomathiyamma Vs Babu Kuriakose — Motor Accident Claims | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938

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OP (MAC).No. 93 of 2016 (O) ----------------------------

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PETITIONER(S):

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GOMATHIYAMMA, W/O. NARAYANAN, AGED 70 YEARS, PULIMOOTTIL HOUSE, IRAVOM P.O., KONNY, PATHANAMTHITTA.

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BY ADVS.SRI.C.S.MANILAL SRI.S.NIDHEESH

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RESPONDENT(S):

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1. BABU KURIAKOSE,IDATHALA VEEDU,

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KALOOR P.O., KOOTHATTUKULAM, MOOVATTUPUZHA-686668.

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2. JAYAKUMAR

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JAYALAKSHMI VILASOM, PAUMPA SOUTH, PAVUMPA P.O.-690574.

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3. THE BRANCH MANAGER

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ORIENTAL INSURANCE CO. LTD., KOCHI-682011.

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4. THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, TRIVANDRUM-695001.

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R3 BY SMT.K.S.SANTHI

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R4 BY ADV. SRI.P.C.CHACKO, SC, B

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THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (MAC).No. 93 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: TRUE COPY OF THE CLAIM PETITION O.P.(MV) NO. 828/2007 FILED BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA. EXHIBIT P2: TRUE COPY OF THE AFFIDAVIT AND APPLICATION I.A.972/2014 FOR SETTING ASIDE THE DISMISSAL FOR DEFAULT IN OP MV 828/007. EXHIBIT P3: TRUE COPY OF THE ORDER DATED 29-2-2016 IN I.A.NO. 972/2014 IN O.P.(MV0NO. 828/2007. RESPONDENT(S)' EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE

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SHAJI P. CHALY, J

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O.P.(MAC)NO.93 OF 2016

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Dated this the 31^st day of August, 2016

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J U D G M E N T

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This original petition is filed under Article 227 of the Constitution of India challenging Ext.P3 order passed by the Motor Accidents Claims Tribunal, Pathanamthitta (hereinafter called the Tribunal) in IA.NO.972/2014 in OP(MV)No.828/2007, whereby the application filed by the petitioner, to set aside the dismissal order, and restoration of the claim petition was declined by the Tribunal. The reasons assigned by the Tribunal to dismiss the IA is that, there should have been sufficient evidence adduced by the petitioner to show that the advocate clerk of the concerned counsel has noted the date as 25.02.2014 instead of 05.02.2014. It is also found by the Tribunal that, in order to establish the case, petitioner ought to have produced at least the docket of the case

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O.P.(MAC)NO.93 OF 2016 2

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bundle to ensure genuineness of the reason put forth by the petitioner. It is also found that the past experience of the Tribunal shows that noting of a mistaken date is a usual reason stated by the advocates while no other reason is available to say. It is in this background challenging Ext.P3 order, petitioner has filed this original petition.

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Heard learned counsel for the petitioner and learned counsel appearing for the respondents 3 and 4. In view of the limited nature of order, I propose to pass notice to respondents 1 and 2 is dispensed with. On a perusal of Ext.P3 order of the Tribunal, I do not think that the Tribunal was justified in stating that, petitioner failed to adduce any evidence to establish the case put forth to restore the claim petition. The Tribunal having noted that the reasons stated in the application is the usual reason, may be correct. But that itself is a reason for the Tribunal to have considered the application without insisting for any evidence to be rendered by the advocate clerk of the

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O.P.(MAC)NO.93 OF 2016 3

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counsel to establish the case that the wrong date was noted by the advocate clerk. Such applications should be considered normally by the Tribunal on merits by taking into account the reasons put forth by the petitioner of the counsel in the respective affidavits. Larger interest of justice requires every matter to be considered on its own merit. Tribunal should have reminded of itself the said legal principle, and ought to have avoid the technical finding in such trivial and peripheral issues. Therefore, I think, petitioner has made out a case warranting interference in Ext.P3 order passed by the Tribunal same being illegal and irrational. Therefore, I allow Ext.P2 application, and OP(MV)No.828/2007 is restored to the files of the Motor Accidents Claims Tribunal, Pathanamthitta. Since the matter is pending before the Tribunal from the year 2007, there will be a direction to the Tribunal to ensure disposal of the same within a period of four months after providing reasonable opportunity to the respective contesting respondents.

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O.P.(MAC)NO.93 OF 2016

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Original petition is allowed accordingly.

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sd/-

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SHAJI P. CHALY, JUDGE

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R.AV

Gomathiyamma v. Babu Kuriakose

Case brief

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Gomathiyamma v. Babu Kuriakose

Case brief

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