Allahabad High Court
New India Assurance Co Ltd vs Mt. Taiyyaba Begum And Another on 24 March, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 2377 of 2005
Appellant :- New India Assurance Co Ltd
Respondent :- Mt. Taiyyaba Begum And Another
Counsel for Appellant :- Brijesh Chandra Naik
Counsel for Respondent :- Mohd. Asim Zulfiquar,Amit Kumar Singh,Hriday Narayan Pandey,Ram Singh,Veer Singh
Hon'ble Vivek Agarwal,J.
1. Heard Sri Brijesh Chandra Naik, learned counsel for appellant and Sri Mohd. Asim Zulfiquar, learned counsel for respondents.
2. Sri Naik fairly submits that case is covered with the law laid down by Hon'ble Supreme Court in case of Mukund Dewangan vs. Oriental Insurance Co. Ltd., 2017 (4) TAC 11 (SC), therefore, there is no ground which subsists to press the appeal. At the same time, he submits that judgment in case of Mukund Dewangan (supra), has already been refereed to Larger Bench in case of M/s Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi and others, pending before Hon'ble Supreme Court.
3. Sri Zulfiquar submits that there is delay of 4820 days in filing of cross-objection. In the grounds, it is mentioned that ignorance of the provisions of the law, caused delay, therefore, delay be condoned. This ground for seeking condonation of delay that claimants were not having a legal knowledge or were not having resources to file appeal, is not made out. In State of U.P., court fees is not payable on pro-rata basis in an appeal filed under Section 173 of the Motor Vehicles Act. There is no justification seeking delay of 4820 days, therefore, this application seeking condonation of delay is gross abuse of process and cannot be sustained and is rejected.
4. At this stage, learned counsel for cross-objectors prays for invoking provisions under Order 41 Rule 33 C.P.C. Once cross-objections have been filed and delay has not been condoned, then it will be frustrating the provisions of law, if at this stage, provisions contained under Order 41 Rule 33 are invoked because application seeking condonation of delay in filing cross-objections under Order 41 Rule 22, has already been rejected.
5. As far as plea of judgment of Mukund Dewangan (supra) being subjudice before the Larger Bench of the Supreme Court is concerned, law is settled in this regard as has been held in case of the Oriental Insurance Company Limited Vs. Sanju Bai and others; 2016 ACJ 1000 (M.P.), wherein it is held that pendency of a reference to a Larger Bench is not an impediment in deciding the cases as per the existing law. Law laid in case of Mukund Dewangan (supra), is still a good law and there is no stay on the judgment passed by Hon'ble Supreme Court in case of Mukund Dewangan (supra), while making reference in case of M/s Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi and others (supra), therefore, law laid down in case of Mukund Dewangan (supra), is still a good and valid law.
6. Therefore, appeal fails and is dismissed.
7. If any amount under Section 173 has been deposited, then that be remitted to the learned claims tribunal to be adjusted against the amount to be disbursed in favour of the claimants or for refund, as the case may be. Lower court record be sent back to the tribunal forthwith.
Order Date :- 24.3.2021
Vikram/-
