Delhi High Court

Smt. Brijesh Devi & Ors. vs Union Of India on 4 November, 2009

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

                  FAO. No.228/2008

%     Judgment reserved on:      23rd October, 2009

      Judgment delivered on: 4th November, 2009


1. Smt. Brijesh Devi
   W/o. Late Sh. Parveen Kumar

2. Master Sachin (Minor)
   S/o. Late Sh. Parveen Kumar

3. Master Sagar (Minor)
   S/o. Late Sh. Parveen Kumar

    Appellants No.2 & 3 through their mother & Natural
    Guardian Smt. Brijesh Devi

    R/o. H.No. 186,
    Village Jhandapur,
    P.S. Link Road,
    Ghaziabad, (U.P)                        ....Appellants

                        Through: Mr. N.K. Gupta, Adv.

                  Versus

    Union of India
    Through General Manager
    Northern Railways,
    Baroda House                          ....Respondent.

                        Through: Mr. Sanjay Kr. Pathak
                                 for respondent/UOI.
                                 Mr. Sumeet Batra with
                                 Ms. Zubeda Begum for
                                 respondents.




      FAO No.228/2008                           Page 1 of 11
 Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Yes

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported
   in the Digest?                                       Yes

V.B.Gupta, J.

This appeal has been filed under Section 23 of the

Railway Claims Tribunal Act, 1987 (for short as „Act‟)

by appellants against judgment dated 30th May, 2008

passed by Railway Claims Tribunal, Delhi (for short as

„Tribunal‟). Vide impugned judgment, application for

condonation of delay of the appellants was dismissed.

2. Appellants filed claim petition seeking

compensation on account of death of Parveen Kumar in

an untoward railway accident on 1st June, 2004.

Deceased was husband of appellant No.1 and father of

appellants No.2 and 3. Along with claim petition, an

application for condonation of delay was filed in which

it was stated that appellants were under great sorrow

due to untimely death of deceased. Appellant No.1,

visited G.R.P, P.P. Shahdara number of times to know

about the preparation of inquest report but no

satisfactory answer was given to her. After numerous

visits, police of G.R.P, P.P., Shahdara supplied few

documents on 15th May, 2005.

3. Thereafter, appellant No.1 approached an

advocate at Tis Hazari Court, Delhi and handed over

all the documents which were demanded by him. That

advocate told her that he has prepared the case and

got the signatures of appellant No.1 on various

documents and also told her that he will file the case

within one year from the date of accident. He also told

the appellant that they need not come and he will

inform them about the progress of the case.

4. In the meanwhile, appellant received a letter

dated 18th October, 2005, from one S.S. Shambuti,

Pleader Railway Claims, who again got the signatures

of appellant No.1 on various documents and gave

assurance about filing of the case but he never

informed the appellants about the case. Appellants

tried their best to find out that advocate on the address

given but they failed to trace that advocate.

Thereafter, appellant contacted the present counsel

and got the case prepared. There is a delay of two

years eight months and twenty eight days in filing the

petition. This delay is neither deliberate nor

intentional, rather it is due to the reasons stated

above.

5. In reply, it is stated by respondent that there is a

considerable delay in filing the petition and appellants

cannot take benefit of the wrong if any, committed by

their advocate. Considering the facts that appellants

received documents on 15th May, 2005, they still took

two years and eight months to file present petition,

which shows that there is considerable delay and no

sufficient ground is made out for condonation of delay.

6. It is contended by learned counsel for appellants

that appellants are poor and illiterate villagers and

they did not have the knowledge of filing the claim

petition within one year. They handed over all the

documents to counsel who assured them that he will

file the petition but unfortunately said counsel did not

prepare the case nor did he file the claim petition.

Appellants cannot be punished for the wrong

committed be their advocate. Moreover, appellants

No.2 and 3 are minors and they cannot be punished for

the wrong committed by appellant No.1. Thus, delay

in filing the petition should be condoned.

7. In support, learned counsel for appellants cited

following judgments;

(i) Ram Nath Sao & Others Vs. Gobardhan Sao and Anr; (2002)3 Supreme Court Cases 195;

(ii) M. K.Prasad Vs. P. Arumugam, (2001) 6 Supreme Court Cases 176;

(iii) N. Balakrishnan Vs. M. Krishana Murthy (1998) 7 Supreme Court Cases 123;

(iv) Collector, Land Acquisition, Anantnag &Anr Vs. Mst. Katiji & others; AIR 1987 Supreme Court 1353, and;

(v) Nagarjuna Patnaik Vs. Jayaky construction & Anr; III (2007) ACC 130, Orissa High Court.

8. On the other hand, it is contended by learned

counsel for respondent that appellants have put entire

blame on their earlier counsel but there is nothing on

record to show that they ever took any action against

their advocate. The explanation given for condonation

of delay is neither plausible nor reasonable. In support,

learned counsel for respondent referred a decision of

Supreme Court;

"Lachhman Das Arora vs. Ganeshi Lal and Ors., (1999) 8 Supreme Court Cases 532."

9. As per appellants‟ own case, they received the

documents from police of G.R.P on 15th May, 2005 and

handed over all documents to an advocate at Tis

Hazari Court, Delhi. No name or other particulars of

that advocate has been mentioned at all. Further, case

of appellants is that they received a letter dated 18th

October, 2005 from one Sh. S.S. Shambuti, who

offered his services to appellants. This advocate got

the signatures of appellant No.1 on various documents

and gave assurance to the appellants about filing of

case.

10. Accident in question is alleged to have taken

place on 1st June, 2004. Appellants filed claim for

compensation before Tribunal on 29th February, 2008.

Having regard to the date of accident, appellants ought

to have filed the claim petition before Tribunal on or

before 1st June, 2005. They however, filed the claim

petition before Tribunal on 29th February, 2008. Thus,

there is a delay of two years, eight months and twenty

eight days in filing the claim application.

11. In various judgments referred by learned counsel

for parties, it has been laid down that "Court has to

exercise discretion on the facts of each case keeping in

mind that in construing the expression „sufficient

cause‟, the principle of advancing substantial justice is

of prime importance." The Tribunal dealing with

„sufficient cause‟ has observed;

"The applicants have attempted to explain the delay by stating that after a number of visits, the concerned police

had supplied few documents on 15.5.2005, and, thereafter they had contacted one advocate, who did not file the application in time, though, he had promised, and, thereafter they received a letter dated 18.10.2005 from one S.S.

Shambuti, who, however, could not be contacted and ultimately they contacted the present advocate and filed the application for compensation and in the process there was a delay of more than two years. The respondent railway administration has strongly objected for condoning such an inordinate delay on the ground that the same has not been satisfactorily explained by the applicants. Section 17(2) of the R.C.T Act confers powers on the Railway Claims Tribunal to condone the delay in filing claims after the period specified in sub-Section(1) of Section 17, if the applicant satisfies the Tribunal that they had sufficient cause for not making the application before the Tribunal within the period prescribed in Section 17(1) of the R.C.T. Act. Therefore, it is incumbent or obligatory upon the applicants to show that they had sufficient cause for not making the claim application within the period prescribed. In the instant case, the applicants have filed a photocopy of the letter dated 18.10.2003 alleged to have been written by one S.S. Shambuti and the contents thereof reads as under;

"Apke shok santapt pariwar ko pramantma dukh sehan karne ki shakti de tatha atma

ko shanti de. Apke priyajan ki mrutyu train- accident me ho gai hai uska muawza railway se aap logo ko dilane me pairavi avum kanooni madad karunga. Is hetu apke pas patra/ patravahak ko sambhandit farm ke sath bhej raha hun. Farm ke us sthan per jahan avedak ke hastakshar hetu jagah chuta hai vahan mritak ki patni ya mata/pita apna hastakshar ya bayen anguthe ki nishan bana de."

The above contents of the letter alleged to have been received by the applicants would clearly indicate that the said Sh. S.S. Shambhuti had voluntarily offered his services to the applicants by supplying them with the necessary performa application etc. and does not in any way indicate that the applicants had either earlier approached some other advocate or the said Sh. S.S. Shambuti at any point of time. It would appear as if the necessary initiative was taken by the said S.S. Shambuti and there was no attempt on the part of the applicants to make any efforts to seek for compensation. Therefore, the explanation put forth by the applicants in their application stands diluted by contents of the above said letter. That being so, the explanation put forth by the applicants in their application does not appear to be genuine and bona fide. At any rate, the causes shown for

condonation of such an inordinate delay have no acceptable value in the face of the above contents of the letter alleged to have been written by one S.S.

Shambuti to the applicants. Therefore, on the facts and in the circumstances of the case, it cannot be said that the applicants have shown sufficient and reasonable cause to condone such an inordinate delay in filing the claim application."

12. Letter dated 18.10.2005 shows that

Mr.S.S.Shambuti offered his service as advocate. On

the basis of said letter, it cannot be said that he was

appointed as a lawyer by the appellants. Appellants

thus cannot put blame of negligence on that lawyer

when there is no proof whatsoever to show that said

lawyer was ever engaged by them in the matter.

13. Supreme Court in Ram Lal and Ors. v. Rewa

Coalfields Ltd., (AIR 1962 SC 361) observed;

"The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone"

14. As already stated above, the appellants had

received all relevant papers on 15th May, 2005 and one

S.S. Shambuti offered his services to file the claim

petition as far as back on 18th October, 2005, but

appellants slept over the matter and filed

compensation claim only on 29th February, 2008.

Thus, there is no explanation for this inordinate delay

of two years, eight months and twenty eight days, in

filing the claim petition. Under these circumstances,

there is no reason to disagree with the findings of the

Tribunal.

15. Hence, present appeal is not maintainable and