Delhi High Court
Dayanand vs Sunita & Ors. on 27 February, 2013
Author: Suresh Kait
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 27th February, 2013
+ CM (M) 1120/2012
DAYANAND ..... Petitioner
Through: Mr.Prasoon Kumar and Mr. Deepak
Chander Pal, Advocates.
Versus
SUNITA & ORS. ..... Respondents
Through: Mr. Pradeep Gaur, Advocate.
Mr. Navneet Goyal, Advocate for
Respondent Nos. 1 to 5.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
+ CM (M) 1120/2012
1. The petitioner is aggrieved with the order dated 07.09.2012 passed by
the learned Tribunal, whereby the application seeking review of the award
dated 25.08.2008 has been dismissed by the learned Tribunal on account of
inordinate delay.
2. Against the above said award, the petitioner initially filed an appeal
bearing MAC. Appeal No. 94/2009 before this Court, however, the same has
been dismissed as withdrawn vide order dated 09.02.2009 with liberty to file
review application before the learned Tribunal.
3. Accordingly, while dismissing the aforesaid appeal as withdrawn,
liberty was granted by this Court to the petitioner/appellant to file review
application before the learned Tribunal within two weeks. However, same
could not be filed within the time granted by this Court. There has been
inordinate delay of 203 days in filing the review application before the
learned Tribunal.
4. The petitioner filed an application under Section 5 of the Limitation
Act along with the review application seeking condonation of delay and the
reason stated therein was that the case file was misplaced in the office of the
counsel, due to which, the counsel for the petitioner was unable to file the
review application in time before the learned Tribunal.
5. Mr. Goyal, learned counsel appearing on behalf of the
respondents/claimants has submitted that if the petitioner succeeds either in
the review petition or thereafter in the appeal to be filed by him, maximum
the recovery rights given to the Insurance Company would be reversed.
However, the claimants cannot be dragged either in this petition or in the
review application before the learned Tribunal. Moreover, the claimants
have received the awarded amount.
6. Mr. Gaur, learned counsel appearing on behalf of the respondent
No.6/Insurance Company has submitted that since vide order dated
09.02.2009, this Court granted specific time of two weeks to the petitioner to
file review application before the learned Tribunal, however, the same was
filed by him with inordinate delay of 203 days, therefore, the learned
Tribunal has rightly dismissed the review application on delay.
7. He further submitted that if this Court is inclined to allow the instant
petition, the petitioner may be directed to deposit balance 50% , so that if the
liability comes on the Insurance Company, they should not be unnecessary
burdened with the interest part.
8. Admittedly, the learned Tribunal has dismissed the review application
of the petitioner not on merits but only on delay.
9. The learned Tribunal has observed in the impugned award
dated 25.08.2008 as under:-
"Respondent no.1 has failed to exercise reasonable care
and diligence and is therefore, responsible for payment of
compensation to the petitioners. In view of the above
discussion, respondent no. 1. i.e. the owner of the vehicle
is liable to pay the compensation, as he did not have
valid permit to ply the vehicle in Delhi State at the time of
accident. However, the payment of compensation will be
first made by respondent no.2 i.e. the Insurance
Company, in it in turn is given liberty to recover the
amount of compensation paid by it to the claimant from
respondent no.1."
10. Learned counsel for the petitioner is trying to establish his case that he
had valid permit on the date of accident and the learned Tribunal had
ignored this fact that there is stamp and counter signature of Delhi State on
the said permit.
11. This Court granted the petitioner two weeks time to do the needful,
however, due to the reasons narrated in Para 4 above, the petitioner could
not file the review application before the learned Tribunal in time. The
petitioner should not suffer for any lapses on the part of his Counsel. If the
review application is not decided on merit, there would be irreparable loss to
the petitioner. Therefore, the impugned order dated 07.09.2012 is quashed.
12. Consequently, the learned Tribunal is directed to decide the review
application filed by the petitioner on merits.
13. Pursuant to order dated 10.10.2012, the petitioner has deposited 50%
of the awarded amount along with up-to-date interest with the Registrar
General of this Court, who was directed to keep the said amount in fixed
deposit in UCO Bank, Delhi High Court Branch initially for a period of six
months to be renewed automatically.
14. Since this issue has to be decided by the learned Tribunal, therefore,
the Registrar General of this Court is directed to transfer the amount
deposited by the petitioner to the learned Tribunal, which in turn is directed
to keep the said amount in fixed deposit and the same shall be disbursed
subject to the decision taken by the learned Tribunal.
15. I find force in the submissions of ld. counsel appearing on behalf of
respondents / claimants. Therefore, I am of the opinion, the claimants are
not required at this stage. However, I leave it open to the ld. Tribunal, in
case necessity arises, they may be called to appear by sending notice to
them.
16. The concerned parties are directed to appear before the learned
Tribunal on 15.03.2013 for directions.
17. In view of the above, the instant petition is allowed.
18. The Registry of this Court is directed to send back the TCR alongwith
a copy of this order to the learned Tribunal for compliance.
CM No. 17648/2012 (for stay)
With the disposal of the petition itself, the instant application has
become infructuous. The same is accordingly dismissed.
SURESH KAIT, J.
FEBRUARY 27, 2013
Sb/jg
