Kajal Paul & Anr vs Oriental Insurance Co. Ltd. & Anr
2023 Latest Caselaw 6814 Cal

            IN THE HIGH COURT AT CALCUTTA
              CIVIL APPELLATE JURISDICTION
                         Appellate Side


Present:

The Hon'ble Justice Ajay Kumar Gupta




                     FMAT (MV) 164 of 2023

                             With

                         CAN 1 of 2023



                       Kajal Paul & Anr.
                            Versus
              Oriental Insurance Co. Ltd. & Anr.




For the appellants        : Mr. Subhankar Mandal, Adv.




For the Respondents       : Ms. Sucharita Paul, Adv.



Heard on                  : 27.09.2023



Judgment on               : 06.10.2023
                                       2




Ajay Kumar Gupta, J.

CAN 1 of 2023

1. This is an application for condonation of delay filed under Section

Section 173(1) of the Motor Vehicles Act, 1988 seeking condonation of

delay in filing the instant appeal.

2. Mr. Mandal, learned counsel appearing on behalf of the

appellants/petitioners moved the said application for condonation of delay

of 1738 days in preferring the instant appeal. Learned Advocate further

submitted that the delay was neither due to latches nor negligence on the

part of the appellants. He referred paragraph Nos. 4, 5 and 6 to show the

reasons, which prevented the petitioners in filing appeal within the period

of limitation as prescribed under Section 173(1) of the Motor Vehicles Act,

1988. He prayed for condonation of delay and further prayed the appeal

may be heard on merit for substantial justice as the Act has been enacted

for the benefit of the society.

3. On the other hand, affidavit-in-opposition filed by Ms. Sucharita

Paul, learned counsel appearing on behalf of the respondent no.

1/Insurance Company is taken on record. The learned counsel appearing

on behalf of the appellants/petitioners did not prefer to file affidavit-in-

reply. Accordingly, the record is taken up for hearing.

4. Ms. Sucharita Paul vehemently argued that the prayer for

condonation of inordinate delay in filing appeal may not be allowed as the

appellants/petitioners failed to show sufficient reasons for filing appeal

after expiry of 1738 days delay. She further pointed out that the

appellants/petitioners have shown the reasons for delay due to financial

crises, absence of proper guidance and outbreak of Covid-19 pandemic.

Those reasons are not sufficient to accept in this case for allowing the

application for condonation of delay.

5. It is further submitted that if there was a financial crises then the

appellants/petitioners could have approached the State Legal Services

Authority or District Legal Services Authority for free legal aid under

Section 13 of the Legal Services Authority Act, 1987. Apart from that, the

Covid-19 pandemic was started in the year 2020 and it continued till

2021. Such periods have already been excluded from the entire delay and

thereafter it comes to 1738 days delay. The appellants/petitioners could

not file the appeal even four years prior to the outbreak of Covid-19 and

even after withdrawal of lockdown due to covid-19. Learned Tribunal

passed the judgment and award on 31st March, 2016, thereby awarded a

compensation to the tune of Rs. 16, 71,708/- in favour of the

appellants/petitioners. Insurance Company has been directed to pay the

said awarded sum along with 8% interest from the date of filing of the

claim case. The compensation amount was required to be paid within 30

days failing which, the appellants/petitioners were made entitle to 9%

interest from the date of impugned judgment and award till realization.

Therefore, the appellants/petitioners did not come with clean hand and

fail to show any sufficient cause or reasons for condoning the inordinate

delay of 1738 days in preferring the instant appeal.

6. It is further submitted that the insurance company has filed an

application for review being Misc. Case No. 77 of 2016 against the said

judgment and award dated 31st March, 2016, which is still pending for

disposal before the learned Tribunal. The pendency of such Misc. Case

does not prevent the appellants/petitioners to file appeal, when the

appellants/petitioners feeling aggrieved and dis-satisfied with the said

judgment and award dated 31st March, 2016 passed by the Learned

Tribunal. Therefore, the application for condonation of delay may be

rejected in limini as well as appeal should be dismissed as barred by

limitation.

7. Having heard the submissions of both sides and on perusal of the

application, it appears that the appellants/petitioners have mentioned the

following reasons for delay in filing appeal in an application as hereunder:-

i. Delay caused due to filing of review application by the Insurance

company along with application for condonation of delay vide Misc. Case

No. 77 of 2016 before the Ld. Tribunal against the Judgment and Award

dated 31.03.2016 and the same is still pending for hearing.

ii. The appellants/petitioners could not contact the learned advocate

for filing appeal before the High Court since the compensation amount

awarded by the learned Judge of the Motor Accidents Claims Tribunal is

inadequate and the Insurance Company has even not paid the said

compensation amount till date. Finally, the appellants/petitioners received

an advice on 4th week of February, 2023 for filing an appeal before the

Hon'ble High Court for enhancement of the compensation amount.

iii. In spite of due diligence, the appellants/petitioners could not file

the appeal within the period of limitation due to outbreak of Covid-19

pandemic.

iv. Due to absence of proper guidance and acute financial crises, the

appellant/petitioners could not file the appeal within time.

8. Before deciding the application, this Court would like to refer the

Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the

said Act").

Section.173. Appeals.-- (1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court:

Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2.) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than [one lakh] rupees.

9. In view of the aforesaid provision, the appeal is to be filed within

the period of limitation described under Section 173(1) of the Said Act

within 90 days from the date of judgment and award. It further provides

the High Court may entertain the appeal even if the expiry of the period of

90 days but it should be on satisfaction by the Court that the appellant

was prevented by sufficient cause for preferring the appeal beyond the

statutory period of limitation.

10. There must be sufficient and cogent ground for delay and that

must be explained by the appellant in an application why such enormous

delay was caused in filing the instant appeal. It is apparent from the

Section itself that there is a power to condone the delay but condonation

of delay can never be a mechanical and routine manner when the law

provides limitation for preferring an appeal.

11. That proviso contemplates the power of discretion of the Court for

condonation of delay. Even then, the discretionary power exercised

judicially by recording the reasons. When there is an enormous delay of

1738 days a Court is bound to ascertain the sufficient cause and/or

genuine reasons for acceptance of such sufficient cause while considering

the application for condonation of delay.

12. So far as the first reason is concerned, the filing of Misc. Case by

the Insurance Company for review does not prevent, in any way, to file

appeal before this High Court, when the appellants/petitioners are not

satisfied with the compensation amount awarded by the learned Tribunal.

The appellants/petitioners are also the parties in the Misc. Case No. 77 of

2016 and it is a separate proceeding. Thus, filing of Misc. Case is no way

connected or precluded the appellants to file appeal within limitation

period. It could have filed at earliest.

13. So far as the second reason is concerned, no sufficient explanation

has been made in an application, why the appellants/petitioners could not

contact the learned advocate for more than four years prior to outbreak of

pandemic Covid-19 or even after over of such pandemic as the judgment

and award passed by the Tribunal on 31st March, 2016.

14. With regard to third reason, this Court does not find any sufficient

cause for not filing appeal because the outbreak of Covid-19 pandemic

started in the year 2020 and it continued till 2021. Those periods have

already been excluded from the total period of delay. Apart from that, the

appellants/petitioners could not file appeal prior to 2020 or after 2021.

Appeal filed on 20.03.2023. Hence, such huge delay of 1738 days cannot

be allowed on the pretext that the act is beneficial piece of legislation.

15. With respect to the last reason, it is rightly pointed out by the

learned counsel appearing on behalf of the insurance company that when

there was a financial crises, the petitioners could have approached the

State Legal Services Authority or District Legal Services Authority for

providing free legal aid for preferring an appeal under Section 13 of the

Legal Services Authority Act, 1987 but they failed. The petitioners could

not keep silence for about five years in filing appeal when they were feeling

aggrieved and dissatisfied with the impugned judgment and award.

Petitioners could have approached High Court Legal Service Committee,

State legal service Authority or District legal service Authority. Reasons

shown by the petitioners with regard to proper guidance or advice and due

to financial crisis are frivolous and without justification.

Appellants/petitioners are found not due diligent in conducting their case.

Accordingly, the grounds for reason of delay set forth in the application

are not at all satisfactory in the eye of law.

16. In the light of the above discussions, this Court does not find any

sufficient reason or sufficient cause to support the contention of the

appellants/petitioners that they have prevented by sufficient cause to file

appeal within the prescribed period of limitation. Furthermore, huge delay

of 1738 days cannot be allowed only on the ground that the act is

beneficial piece of legislation. The petitioners ought to have more cautious

and due diligence while approaching or seeking relief from the Court.

Relief cannot be granted to those who are not prompt and diligent for their

own grievances.

17. Accordingly, in absence of sufficient explanation or cause of delay,

the application for condonation of delay is liable to be rejected.

18. In the light of the above observations, application being CAN 1 of

2023 stands rejected.

19. Consequently, Appeal being FMAT (MV) No. 164 of 2023 also

stands dismissed as barred by limitation. No order as to costs. Interim

order, if any, stand vacated.

20. Let a copy of this Judgment and order along with Lower Court

records, if received, be sent back to the learned Tribunal forthwith for

information.

21. All parties shall act on a server copy of the judgment and order

uploaded from the official website of High Court at Calcutta.

22. Urgent Photostat copy of this Judgment and Order be given to the

parties upon compliance of all legal formalities.

(Ajay Kumar Gupta, J) P. Adak (P.A.)