Vaijayantabai Namdeo Patil And ... vs The New India Insurance Co. Ltd. ...
2021 Latest Caselaw 4019 Bom

                                                                   C.A. No.745/2017
                                         :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                  CIVIL APPLICATION NO.745 OF 2017 IN
                 FIRST APPEAL STAMP NO.36623 OF 2016



 Smt. Vaijayantabai Namdeo Patil
 and others                                             ... APPLICANTS

          VERSUS

 The New India Insurance Company Ltd.
 and others                           ... RESPONDENTS

                                   .......
 Shri    M.M. Bhokarikar, Advocate for applicants
 Shri    A.S. Usmanpurkar, Advocate for respondent No.1
 Shri    Shantanu A. Deshpande, Advocate holding for
 Shri    P.R. Patil, Advocate for respondent No.2-B
                                   .......

                                  CORAM :          R. G. AVACHAT, J.

                                  DATE :           4th MARCH, 2021.

 ORDER:

Heard learned counsel for the parties. This is an

application for condonation of delay of 2266 days in preferring

First Appeal against the judgment and award dated

24/6/2010, passed by the Member, Motor Accident Claims

Tribunal (MACT), Jalgaon in Motor Accident Claim Petition

No.53/2005.

2. The applicants are legal representatives/ Class-I

C.A. No.745/2017 :: 2 ::

heirs of deceased Rajendra Patil, who died in the accident

involving motor vehicle on 27/9/2000. The applicants

preferred claim for compensation. The same was allowed.

The claim was quantified at Rs.4,17,500/-. The Tribunal

found the deceased Rajendra Patil, an employee of original

respondent No.2. It found that the liability cannot exceed the

liability of the employer under Workmen's Compensation Act.

The Tribunal, therefore, directed the Insurance Company and

the owner of the vehicle to pay the applicants (appellants) a

sum of Rs.3,05,775/- with interest thereon @ 7.5% p.a. The

Tribunal further directed that the remaining amount of the

award with 7.5% interest may be recovered from the legal

representatives of the original respondent No.2.

3. Shri Bhokarikar, learned counsel for the applicants

would submit that the applicants are poor. They did not have

sufficient income to pay the expenses of the appeal. They,

therefore, could not arrange money in time. The applicants

are mother, widow and minor children of the deceased. They

are illiterate and rustic. The delay in preferring the appeal is

not intentional. The deceased was the sole bread winner of

the family. The applicants could not contact an Advocate to

prefer the appeal within time. The learned counsel relied on a

number of authorities to ultimately urge for grant of the

C.A. No.745/2017 :: 3 ::

application.

4. The learned counsel for respondent - Insurance

Company and learned counsel for legal representatives of the

original respondent No.2 would, on the other hand, submit

that the applicants have suppressed very many facts from this

Court. After the award was passed, the applicants put the

same to execution. The respondent Insurance Company paid

the amount of compensation under the award, which it had

been directed to pay. During execution proceedings, the

applicants and legal representatives of respondent No.2

arrived at a compromise. The applicants received

Rs.1,50,000/- towards full and final settlement of the liability

of the original respondent No.2. the same would falsify the

grounds offered in the application for condonation of delay.

They, therefore, urged for rejection of the application.

5. The authorities relied on by learned counsel for

the applicant are :-

(1) Bishundeo Narain & anr. Vs. Seogeni Rai & ors.

[ AIR 1951 SC 280 ]

(2) Kaushalaya Devi & ors. Vs. Baijnath Sayal, Deceased) & ors. [ AIR 1951 SC 790 ]

(3) Dhirendra Kumar Garg & ors. Vs. Smt. Sugandhi Bai Jain & ors. [ AIR 1989 SC 147 ]

C.A. No.745/2017 :: 4 ::

(4) Union Bank of India Vs. Byram Pestonji Gariwala & ors.

[ AIR 1991 Bombay 185 ]

(5) R. Rajanna Vs. S.R. Venkataswamy & ors.

[ 2015 AIR SCW 531 ]

(6) Royal Sundaram alliance Insurance Company Ltd. Vs. Smt. Manisha Suyog Jagdale & ors.

[ 2016 (2) an. W.R. 155 ]

(7) Ramla & ors. Vs. National Insurance Co. Ltd. & ors.

[ AIR 2019 SC 404 ]

6. The gist of the authorities relied on is that there

should be a liberal pigmatic justice oriented approach while

dealing with an application for condoantion of delay. The

Courts are not supposed to legalise injustice. The term

'sufficient cause' should be understood in its proper spirit,

philosophy and purpose. Substantial justice being paramount

and pivotal, the technical concession should not be given

undue and uncalled for emphasis.

7. Non-compliance of Order 32 Rule 7 of the Code of

Civil Procedure renders a decree or order to be voidable.

Interest of the minor should be of utmost importance. The

compromise has to be for the benefit of minors.

8. There cannot be two views over what has been

submitted by learned counsel for the applicant. Relying on

C.A. No.745/2017 :: 5 ::

the aforesaid authorities, this Court would have been

sympathetic and liberal in granting the application, but for the

application being silent to mention the facts of compromise

arrived at in the execution proceedings. The said facts falsify

the grounds on which the delay is sought to be condoned.

9. The deceased Rajendra Patil was working as a

Cleaner on a Dumper owned by the original respondent No.2.

The Dumper met with an accident. No other vehicle was

involved. Rajendra Patil was in the Cabin of the Dumper when

it met with the accident on 29/7/2000. He died as a result of

the said accident. The Tribunal, considering the age of the

deceased and notional income of Rs.3000/- per month,

awarded the compensation of Rs.4,17,500/-. The applicants

had claimed compensation of Rs.6,00,000/-. The Tribunal

passed the award as stated above. The applicants put the

award to the execution. The respondent Insurance Company

paid the amount of compensation it was liable to pay. The

remaining amount that was directed to be paid by legal

representatives of the original respondent No.2 appeared to

have been not more than Rs.2,00,000/-. In the execution

proceedings, the applicants and the legal representatives of

the original respondent No.2 arrived at a compromise. They

accepted Rs.1,50,000/- towards full and final settlement of

C.A. No.745/2017 :: 6 ::

the claim as against legal representatives of respondent No.2.

One may not find the said compromise to be unconscionable

or against the interest of the minor children of the deceased.

All the facts relating to the compromise entered into in

execution proceedings have not been averred in the

application for condonation of delay. These facts falsify the

claim of the applicants that they did not have money to file

appeal against the award within period of limitation. The

delay in preferring the appeal is of 2266 days. No reliable and

convincing reason has been offered for condonation of the

delay. In this factual backdrop, I am not inclined to allow the

application. The Civil Application, thus, fails. The same is

dismissed.

( R. G. AVACHAT ) JUDGE

fmp/-