Toton Ghosh vs United India Insurance Co. Ltd. & ...
2023 Latest Caselaw 6019 Cal

08.09.2023                                   FMAT 576 of 2019
 S.L.-231                                          with
Ct. No.-654                                 IA No. CAN 1 of 2021
   KB
                                             Toton Ghosh
                                                -Versus-
                                    United India Insurance Co. Ltd. & Anr.



                       Mr. Muktakesh Das
                                    ... For the appellant-claimant.

                       Mrs. Sucharita Paul
                                      ... For the respondent no.1-ins. co.

In Re : CAN 1 of 2021

This is an application for condonation of delay in

preferring the appeal.

As per the report of the Additional Stamp Reporter

dated 1st July, 2019, there is delay of 2121 days in

preferring the appeal.

Mr. Muktakesh Das, learned advocate for

appellant-claimant submits that though the award was

passed on 24th of May, 2013, yet due to economic hardship,

the appellant could not file the appeal within the statutory

period of limitation thereby resulting in delay of 2121 days in

preferring the appeal. The award passed by the learned

Tribunal was also not satisfied by the respondent no.1-

insurance company. Due to his financial stringency and

non-receipt of the awarded sum, the petitioner was

prevented by sufficient cause in preferring the appeal within

the statutory period. The showing of 'sufficient cause' is the

only criterion for condoning the delay under Section 5 of the

Limitation Act. Referring to the decision of Hon'ble Supreme

Court in Sabarmati Gas Limited versus Shah Alloys

Limited reported in (2023) 3 SCC 229, he submits that

'sufficient cause' is the cause for which a party could not be

blamed. He further submits that the length of delay is not

material if sufficiency of satisfactory explanation is

established before the Court, which is a decisive factor for

condonation of delay. To buttress his contention he relies on

a decision of Hon'ble Supreme Court in Perumon

Bhagvathy Devaswom, Perinadu Village versus Bhargavi

Amma (Dead) By LRs & Ors. reported in (2008) 8 SCC

321. Further placing reliance on the decision of the Hon'ble

Supreme Court in Dr. Yashwantrao Bhaskarrao

Deshmukh versus Raghunath Kisan Saindane reported

in 2021 SCC OnLine SC 914, he submits that the Hon'ble

Court condoned the delay after considering that a valuable

right has accrued in favour of the petitioner. Thus, the Motor

Vehicle Act being a beneficial legislation and entitlement of

enhanced compensation is a valuable right of the petitioner,

the delay in preferring the appeal requires to be condoned.

In light of his aforesaid submission, he prays that since the

petitioner was prevented from sufficient cause in preferring

the appeal within the statutory period, delay of more than

six years be condoned in the interest of justice.

In reply to the contention raised on behalf of the

petitioner Mrs. Sucharita Paul, learned advocate for

respondent no.1-insurance company submits from four

corners of the application no cogent reason has been cited

by the appellant for preferring the appeal after six years. She

further submits that the ground of financial hardship is a

cooked up story since the materials on record shows that the

victim opted to be treated in a private hospital instead of

government hospital. Since no sufficient cause has been

shown in the application for condonation of delay the prayer

needs to be dismissed in limini.

Having heard the learned advocates for respective

parties, I now proceed to decide the application in the

backdrop of the rival contention raised by the parties.

The petitioner in the application for condonation of

delay has precisely made out following grounds: (i) that since

the passing of the judgment the award has not been

satisfied; (ii) that the petitioner is suffering from financial

problem and mental agony; (iii) that the petitioner did not

have the capacity to move due to injuries.

So far as the first ground relating to award having

not satisfied is concerned, during the course of argument,

learned advocate for the petitioner has informed that no

execution proceeding has been initiated by the claimant for

recovery of the awarded sum granted in his favour by the

learned Tribunal. The award being not satisfied cannot be a

reasonable ground for not filing appeal within the statutory

period.

As far as the second ground is concerned relating

to the financial hardship of the claimant, nothing is placed

on record of his precarious financial status resulting in delay

of more than six years. From the impugned judgment, it is

found that at first the petitioner was treated in a government

hospital but thereafter his parents shifted him to Apollo

Gleneagles Hospital, Kolkata and spent a sum of

Rs.94,000/- towards medical treatment therein. This aspect

probabilises that the financial condition of the petitioner is

not so stringent to prevent him from filing the appeal after

six years. I find substance in the submission of Mrs. Paul,

learned advocate for the respondent no.1-insurance

company in this regard. Hence, such ground is not

acceptable.

Lastly, with regard to the delay occurring due to

difficulty in movement of the petitioner, it is found from the

paragraph no. 2 of the application for condonation of delay

that the petitioner himself met his learned advocate on 2nd

June, 2019. There are no materials to suggest that the

petitioner cannot move after the accident. Accordingly, this

ground also does not stand to reason.

The grounds taken by the petitioner is not tenable

and/or sustainable in the eye of law. There are no sufficient

cause shown to condone delay of 2121 days in preferring the

appeal.

It is a fact that length of delay is immaterial if such

delay is supported by sufficient cause. It is trite law that

once the Court accepts the explanation can exercise its

discretion in the matter of condonation of delay irrespective

of length of delay in preferring the appeal. Further law

relating to limitation does not show that such discretion can

be exercised only when the delay is within a certain limit.

The decisive factor is sufficient cause which lacking in the

present cause.

The decisions of the Hon'ble Supreme Court cited

on behalf of the petitioner are factually distinguishable from

the case at hand and do not apply.

Therefore, in the absence of reasonable explanation

of the delay, the application for condonation of delay is liable

to be dismissed.

Accordingly, the application being CAN 1 of 2021

stands dismissed.

In Re: FMAT 576 of 2019

Since the present appeal is time barred, the same is

also hereby dismissed.

All connected applications, if any, are also disposed

of.

Interim order, if any, stands vacated.

Urgent certified photocopy of this order, if applied

for, be supplied to the parties expeditiously upon compliance

of all necessary legal formalities.

(Bivas Pattanayak, J.)