Mamtaz Begam & Ors vs The New India Assurance Co. Ltd. & ...
2023 Latest Caselaw 5844 Cal

 Item No. 1


                           In The High Court At Calcutta
                            Civil Appellate Jurisdiction
                                   Appellate Side

01.09.2023
   Ct-32


                                F.M.A.T. 133 of 2021
                                        With
                                   CAN 1 of 2023


                             Mamtaz Begam & Ors.
                                      Vs
                The New India Assurance Co. Ltd. & Anr.


                          Mr. Krishanu Banik
                          Mr. Tattagata Banik
                                          .... For the appellants


                                    CAN 1 of 2023


                    This is an application filed under Section 173(1) of

              the Motor Vehicles Act seeking condonation of delay of

              1358 days in preferring the instant appeal against the

              judgment and order dated 28th day of February, 2017

              passed by Motor Accidents Claims Tribunal, Fast Track,

              1st Court, Burdwan in M.A.C. Case No. 68/2014 (Old

              No. 434 of 2014), thereby awarded a sum of Rs.

              6,09,500/- (Rupees Six Lakh Nine Thousand Five

              Hundred) along with interest @ 7% per annum from the

              date of institution of claim application till realization of

              entire amount within one month from the date of order

              subject to deduction of any amount, if already paid, in
                              2




terms of proceedings U/s 140 of the Motor Vehicles Act,

1988 (hereinafter referred as "the said Act").

      Learned advocate appearing on behalf of the

appellants submitted that the appellants could not file

the instant appeal within the statutory period of

limitation since it was prevented by sufficient cause. He

came to know about the fate of the claim case on 28th

March, 2017 and due to financial problem he could not

apply and obtain the certified copy of the impugned

judgment    and   award.   Financial   condition   of   the

appellants became day to day problem as the sole bread

earner of their family died in the accident. It further

took time to engage learned advocate to file the instant

appeal against the said impugned judgment and award.

In the meantime, Covid-19 pandemic started in all over

the world including India from March 2020 and it

continued till the year 2021. The Hon'ble Supreme

Court also excluded such Covid period for the limitation

counting. Finally, he submitted that the Court can take

liberal approach while considering the condonation of

delay as the Motor Vehicles Act enacted for the benefit

and in support of the claimant, who suffers either from

injury or due to death of his/her family members due to

motor traffic accident. In support of his contention, he

relied a decision of Hon'ble Supreme Court passed in
                                        3




Collector, Land Acquisition, Anantnag and Another

v. Mst. Katiji & Others1.

          None           appears       on          behalf       of      the

respondent/Insurance Company despite of service of

notice even on twice occasions.

Having heard the submission and on perusal of

the application, it appears the impugned judgment and

award has been passed on 28th day of February, 2017

and the instant appeal has been preferred on

15.02.2021 though the appeal should have been filed on

29.05.2017 i.e. within 90 days in view of the Section

173(1) of the Motor Vehicles Act. However, the

appellants had applied for the certified copy on

02.02.2021 and obtained certified copy on 04.02.2021.

The reason cited by the appellants is sufficient because

due to Covid pandemic, the entire world was suffered

immensely and the Hon'ble Supreme Court also

excluded the period of Covid-19 pandemic from the

calculation of limitation period.

In view of the above fact, this Court does not find

any intentional latches or negligence on the part of the

appellants in preferring the appeal beyond the period of

limitation. At the same time, keeping in mind the Act is

beneficial piece of legislation and also observation made

by the Hon'ble Supreme Court in Collector, Land

AIR 1987 S.C. 1353

Acquisition, Anantnag (supra) this Court inclined to

condone the delay as prayed for. Accordingly, the

application for condonation of delay being CAN 1 of

2023 is allowed and, thus, disposed of.

The instant appeal is formally admitted and

registered.

Call for the lower Court Record.

Upon receipt of the lower court records, the office

shall examine the same and if found to be complete and

in order shall serve notice of arrival of lower court

records upon learned advocate for the appellants.

Upon receipt of notice of arrival learned advocate

for appellants-claimants shall prepare and file requisite

numbers of informal paper books incorporating all

relevant papers and documents including pleadings,

both oral and documentary evidence in printed,

cyclostyled or typewritten form within the period of four

weeks from date of service of notice of arrival of lower

court records.

Appellants-claimants are further directed to

deposit Talabana cost along with written up notice

forms for service of notice of appeal upon the

respondent no. 1 /Insurance Company.

It appears from the judgment that the owner of

the offending vehicle, Respondent No. 2 did not contest

the claim application before the learned Tribunal and

the case was decided against the owner of the vehicle ex

parte as such service of notice upon respondent No.2 is

dispensed with.

Parties are given liberty to mention, if the case is

ready in all respects, for early hearing.

(Ajay Kumar Gupta, J.)