Bajaj Alliance General Insurance ... vs Smt. Ujjal Kundu & Ors
2023 Latest Caselaw 2783 Cal

20.04.2023

Ct. 2
Sd./13                    FMAT 758 of 2021
                             With
                          CAN 1 of 2023
                              With
                          CAN 2 of 2023

                   Bajaj Alliance General Insurance Co. Ltd.
                                    Vs.
                          Smt. Ujjal Kundu & Ors.



                   Mr. Avik Ghatak
                   Mr. R. Dutta Gupta ..For the appellant.


                   Re: CAN 1 of 2023

                   Affidavit of service filed by the appellant be

             kept with the record.

                   None appears to represent the respondents in

spite of service.

This an application for condonation of delay in

preferring the appeal.

Mr. Dutta Gupta appearing for the appellant/

applicant submits that since, due to Covid-19

pandemic the normal function of the Court was

distracted, there was a delay in preferring this

appeal and he submits that in the interest of justice,

the delay should be condoned.

Heard the learned advocate. Perused the

materials on record. Judgment impugned in the

present appeal was passed on 19.9.2019 and the

appeal has been filed on 9.12.2021 and excluding

the period as per the order of the Hon'ble Supreme

Court of India passed in SMW( C) no. 3 of 2020, the

period of delay stands to 154 days.

It is well settled that the expression 'sufficient

cause' incorporated in S. 5 of the Limitation Act

should receive a liberal construction when no

negligence or inaction or want of bona fide is

imputable to the party.

It must be remembered that in every case of

delay there can be some lapse on the part of the

litigant concerned. That alone is not enough to turn

down his plea and to shut the door against him. If

the explanation does not smack of mala fides or if it

is not found that the person seeking condonation of

delay has resorted to dilatory tactics, court should

lean towards acceptance of explanation.

I do not find any material to infer that the

delay is intentional and the appellant resorted to

dilatory tactics to gain some undue advantage and

accordingly, I am satisfied with the explanation given

by the appellant.

Consequently, the delay is condoned. The

application being CAN 1 of 2023 is thus allowed and

disposed of.

Re: CAN 2 of 2023

This is an application for stay of operation of

the impugned judgment and/or award passed by the

learned Judge, Motor Accident Claim Tribunal, 2nd

Court, Durgapur in M.A.C. Case no. 152 of 2013 ,

whereby the learned Tribunal awarded compensation

to the tune of Rs. 25, 27,824/- along with interest

under S. 166 of Motor Vehicles Act , 1988.

Mr. Dutta Gupta submits that the appellant

has deposited the statutory amount being Rs.

25,000/- as per the legislative mandate incorporated

in S. 173 of Motor Vehicles Act, 1988. He further

submits that the appellant is ready and willing to

deposit the entire awarded amount less the statutory

deposit with the Registrar General, High Court,

Calcutta. He submits that unless the operation of

the judgment impugned is stayed, the appellant shall

suffer substantial loss and the appeal will be

infructuous.

Prima facie, an arguable case has been made

in the present appeal and unless the interim order

as prayed for, is granted, the appellant shall suffer

substantial loss. Considering this aspects and on

close scrutiny of the materials on record placed

before me, I direct that there shall be an

unconditional stay of operation of the judgment

impugned in the present appeal till the disposal of

this application.

The appellant shall ensure the entire awarded

amount less the statutory deposit with the Registrar

General, High Court at Calcutta within a period of

three weeks from date.

In the event, such amount is secured with

Registrar General, High Court, Calcutta, the interim

order of stay shall continue till the disposal of the

application.

In the event, such deposit is not made, the

interim order shall stand automatically vacated

without any further reference of this Court.

Learned Registrar General, High Court,

Calcutta shall ensure that the amount , if deposited

by the appellant/applicant, is invested in a short

term fixed deposit account with any nationalized

bank and the Registrar General shall go on renewing

the same from time to time until further orders.

List the matter for further consideration four

weeks hence.

( Partha Sarathi Chatterjee J. )