Nyja vs E. Rarichutty

Kerala High Court

Nyja vs E. Rarichutty on 20 May, 2024

Author: Mary Joseph

Bench: Mary Joseph

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
            THE HONOURABLE MRS. JUSTICE MARY JOSEPH
     MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                        MACA NO. 3491 OF 2023
AGAINST THE AWARD DATED 31.12.2007 IN OP(MV) NO.90 OF 2001 OF
IST ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/PETITIONER:

          NYJA,
          AGED 46 YEARS,
          W/O. P. K DANOJ KUMAR, PURAYIDATH KANDY HOUSE,
          ELATHUR (PO), CALICUT., PIN - 673303

          BY ADVS.SMT.A.D.DIVYA
                  SRI.SABIN BABU
                  SMT.NAVYA SONY


RESPONDENTS/RESPONDENTS:

    1     E. RARICHUTTY
          S/O. CHERIYAKKAN, THACHANADATH VEEDU,
          PUTHIYANGADI P.O., PUTHIYANGADI AMSOM,
          DESOM OF KOZHIKODE TALUK, PIN - 673021

    2     K.E HARIDASAN,
          S/O. CHANDU NAMBIAR, PANCHAMI HOUSE, ELATHUR AMSOM,
          DESOM, P.O ERANHIKKAL, KOZHIKODE, PIN - 673303

    3     THE NEW INDIA INSURANCE CO. LTD.,
          REP.BY ITS BRANCH MANAGER, TRIPURI BUILDING,
          NADAKKAVU, CALICUT, PIN - 673011

          R3 BY ADV.SRI.LAL K JOSEPH
                    SRI.SURESH SUKUMAR
                    SRI.ANZIL SALIM


THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 C.M.Application No.1 of 2023
       &
M.A.C.A.No.3491 of 2023
                                    2


                               JUDGMENT

Dated this the 20th day of May, 2024 C.M.Application No.1/2023 is an application seeking to condone delay of 4946 days (excluding the Covid-19 period from 15.03.2020 to 28.02.2022), occurred in filing the appeal on hand.

2. In the affidavit filed in support of the application, it is stated that though the appeal ought to have been filed on or before 30.03.2008 the petitioner could not, in view of the serious injuries sustained by her in the motor accident. She was bedridden on account of total paralysis of her body after the motor accident. Her husband was taking care of her all throughout. According to her, her husband being her sole care taker all throughout, he could not travel to entrust the case files to a counsel at Ernakulam, to file an appeal. She has also stated about misplacement of the case file at the office of the lawyer in Kozhikode. According to her on getting a slight relief, she C.M.Application No.1 of 2023 & M.A.C.A.No.3491 of 2023 3 travelled upto Ernakulam and met a counsel and filed the appeal. The delay was occurred in the above process and she seeks to condone it.

3. Counter affidavit was filed by the 3rd respondent in the CM application. The contentions raised were that delay of almost 13.5 years was occurred in filing the appeal. According to him the certified copy of the award itself was obtained only in the year 2023 despite the factum that the impugned award was passed in the year 2007.

4. The learned counsel has relied on the dictum in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others [2013 (12) SCC 649] where it was held that the increasing tendency to perceive delay as a non-serious matter and hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.

5. True that the petitioner suffered quadriplegia and the Medical Board has certified her permanent disability as 75%. Therefore, there is merit in her contention that she was unable C.M.Application No.1 of 2023 & M.A.C.A.No.3491 of 2023 4 to do things on her own. According to her, her husband was taking care all throughout and therefore he could not travel upto Ernakulam to meet a lawyer and to file the appeal.

6. Petitioner has no case that the passing of the award by the Tribunal was brought to her notice only belatedly. There was delay in obtaining the certified copy of the award. That was obtained only after 15 years of passing of the award. That itself shows that the petitioner was not vigilant in prosecuting the case. Though she has pleaded that the file was misplaced at the office of her counsel at Kozhikode, she did not cause an affidavit to be filed by the counsel or any responsible person attached to the office of the counsel.

7. The delay occurred was inordinate and excluding the period for which Covid-19 pandemic was prevalent, it was reckoned as 4946 days. The explanation stated in the affidavit filed in support of the application seeking condonation of delay are not satisfactory and sufficient to condone the same. The dictum relied on by the learned counsel also restrains this Court to pass an order in favour of the petitioner. Number of days of C.M.Application No.1 of 2023 & M.A.C.A.No.3491 of 2023 5 delay shown in the affidavit is also found incorrect. The application is liable to be dismissed for the reasons.

In the result, application is dismissed and M.A.C.A is also dismissed.

Sd/-

MARY JOSEPH JUDGE MJL