Diamond Copy House vs M/S Oriental Insurance Company ...
2010 Latest Caselaw 2880 Del

     *        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Reserve: 13th May, 2010
                                        Date of Order: June 01, 2010

+        MAC APP 234/2009 & C.M. APPL. Nos. 6980-6981/2009

%                                                       01.06.2010

         DIAMOND COPY HOUSE                            ...Appellant
                         Through:           Mr.  S.K.    Rungta     and
                                            Ms.    Pratiti     Rungta,
                                            Advocates.
                    Versus

         M/S ORIENTAL INSURANCE
         COMPANY LTD. & ORS.                            ...Respondents
                           Through:         Mr. A.K. Soni, Advocate for
                                            R-1.
         CORAM :

         JUSTICE SHIV NARAYAN DHINGRA

         1.    Whether reporters of local papers may be allowed to see
               the judgment?
         2.    To be referred to the reporter or not?
         3.    Whether judgment should be reported in Digest?

                               JUDGMENT

1. This application has been moved by the appellant for

condonation of 685 days delay in filing the appeal. The Award

was passed on 23rd March, 2007. The appeal against the

Award has been filed on 11th May, 2009. While stating the

grounds of condonation of delay, it was stated that appellant

was residing and working for gain in Chandigarh. He had

entrusted the work of defending his interest through a counsel

Mr. H.S. Pahwa, Advocate. Mr. Pahwa, Advocate did not inform

the appellant about the passing of the Award and as such the

appellant could not prefer appeal within time. The appellant

got the knowledge of passing of the Award in the year 2008.

The appellant tried to contact Mr. Pahwa, Advocate but could

not ascertain the position. He got back the file of the case

from Mr. Pahwa, Advocate in the month of February, 2009.

Then he entrusted the case to Mr. Parveen Kumar, Advocate

who advised him to file a review petition and accordingly, the

review application was filed by him which got dismissed in

default on 5th March, 2009. Thereafter, the appellant engaged

the present counsel namely Mr. S.K. Rungta, Advocate and

filed the present appeal.

2. It is submitted that delay in filing the appeal was not

intentional and, therefore, it should be condoned. The

appellant learnt about the passing of the Award when

appellant received summons of the execution proceedings

initiated by respondent No. 1.

3. The grounds stated in the application itself show that

the appellant was negligent in prosecuting the case. A

perusal of trial court record shows that appellant had

appeared before the Tribunal during the trial of the case

throughout through his Advocate but he did not bother to

appear in the witness box to prove his case. It was the

responsibility of the appellant to prosecute his case and to

find out what Award has been passed. Making allegations

against the Advocate is the easiest way of escaping the

responsibility. It is to be noted that the appellant had not filed

any complaint in the Bar Council against Mr. Pahwa, Advocate

against whom he alleged that he did not inform the appellant

about the passing of the Award.

4. The law of limitation was enacted by Parliament to bring

end to litigation after certain period. It is expected that

everybody has to be vigilant about his rights and one who

sleeps over his rights cannot suddenly approach the Court

after a long time to disturb the lower courts orders. Right to

appeal is a statutory right and the appellant was supposed to

be aware of his right to appeal. His deliberately not appearing

as a witness and then not finding out as to what was the

Award passed, cannot be a ground for condonation of delay.

5. Even otherwise, I find that the appeal preferred by the

appellant has no merits. At the time when accident took

place, the cleaner of the truck was driving the truck and

caused death of the deceased. The cleaner of the truck had

no license. The driver had allowed the cleaner to drive the

truck. The appellant, who is the owner of the truck, would be

vicariously liable for the act of his employee, whether the act

is of negligent driving or the act is of handing over the truck to

the cleaner who had no driving license. The appellant has

preferred this appeal on the ground that the Tribunal wrongly

allowed the insurance company to recover the amount of

compensation from the owner. I consider that the appeal

should otherwise fail.

In view of the above discussions, the applications and

the appeal are dismissed.

      June 01,     2010              SHIV NARAYAN DHINGRA J.
      AK