Icici Lombard General Insurance ... vs Rojida Khatun & Ors.
2015 Latest Caselaw 5075 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                Mac. Appeal No.514/2012 & C.M. No.8631/2012

                                                 Decided on : 16th July, 2015

ICICI LOMBARD GENERAL INSURANCE CO. LTD.
                                         ...... Appellant
              Through: Mr. Pankaj Gupta, Advocate.

                          Versus

ROJIDA KHATUN & ORS.                                   ...... Respondents
             Through:                  Mr. Kunwar Pal Singh, Adv. for R-1 to 4.

                                        WITH

+                Mac. Appeal No.1141/2012 & C.M. No.18397/2012


ROJIDA KHATOON & ORS.                  ...... Appellants
             Through: Mr. Kunwar Pal Singh, Advocate.

                          Versus

ICICI LOMBARD GENERAL INSURANCE CO. LTD. & ORS.
                                         ...... Respondents
              Through: Mr. Pankaj Gupta, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. These are two cross connected appeals arising from the same

award. The first appeal bearing Mac. Appeal No.514/2012 titled ICICI

Lombard General Insurance Company Limited vs. Rojida Khatun &

Others is filed by the insurance company and the second appeal bearing

Mac. Appeal No.1141/2012 titled Rojida Khatoon & Ors. Vs. ICICI

Lombard General Insurance Company Limited & Ors. is filed by the

claimants seeking enhancement.

2. Vide award dated 13.9.2011, an amount of Rs.8,09,420/- has been

awarded as compensation to the claimants on account of death of one

Mohd. Akhtar, who was hit by an Eicher container bearing registration

No.DL 1L G 6776 (offending vehicle) which was being driven

negligently at a high speed by its driver Abdul Bariq. The deceased was

a truck driver stated to be employed with M/s. Prakash Ispat Udhyog

having a monthly income of Rs.12,000/-. The compensation which was

sought by his widow, Rojida Khatun and parents was to the tune of Rs.42

lacs. The offending vehicle was duly insured and, therefore, the

insurance company was fastened with the liability of payment of the

awarded compensation amount of Rs.8,09,420/-. Out of the aforesaid

amount, a sum of Rs.2,09,420/- was directed to be released to Rojida

Khatun, widow. Out of the balance amount of Rs.6 lacs, a sum of Rs.1

lac each, amounting to Rs.3 lacs in all, was to be released to the other

three claimants, being married daughter and aged parents and the balance

amount of Rs.3 lacs was to be kept in FDR for a period of five years, to

be released to the widow, Rojida Khatun, periodically in terms of the

award.

3. The insurance company had filed an appeal bearing No.514/2012

challenging the quantum. The appeal is filed along with an application

bearing C.M. No.8631/2012 seeking condonation of 147 days delay in

filing the appeal. The reasons which are given for condoning the delay

are that the award was pronounced on 13.9.2011 and the Legal Manager,

one Ankur Mathur, who was working with the insurance company had

tendered his resignation. It is averred that he had not processed the

present file as a consequence of which, no action was taken. It is stated

that even the copy of the award was received by them in the month of

March, 2012. Thereafter, the matter was processed and permission from

the head office was obtained and the matter was sent to the counsel for

the purpose of filing an appeal on 9.4.2012. It is stated that as the

chamber of the counsel was under renovation, hence, the associate

counsel took the file to his home for the purpose of preparing the draft;

however, inadvertently, he forgot to return the file to the main counsel

timely and it was only on 5.5.2012 that the file was returned and

thereafter, the appeal was filed on 8.5.2012. It is further stated that the

delay was neither intentional nor deliberate and therefore the delay may

be condoned.

4. Section 5 of the Limitation Act lays down that before the delay is

condoned, the applicant must be able to show to the court that he was

prevented by 'sufficient cause' from filing the appeal. The 'sufficient

cause' has been interpreted as a cause by the courts which is beyond

human control. While interpreting the word 'sufficient cause', the Apex

Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur

Nafar Academy & Ors.; (2013) 12 SCC 649 has observed that the length

of the delay is not material but the bona fides of the person in prosecuting

the matter are to be seen. In the instant case, details as to when the file

was taken by the associate counsel, when it was returned, what was his

name and what was the action taken against him and such other relevant

details have not been given by the appellant. This appears to be only a

concocted story to overcome the delay. In my considered view, the

reason given by the insurance company does not constitute 'sufficient

cause' for condoning the delay of 147 days in filing the appeal, which

stands unexplained. Consequently, the delay is not condoned. Since the

delay is not condoned, therefore, the appeal of the insurance company

becomes time barred.

5. So far as the appeal bearing No.1141/2012 filed by the claimants is

concerned, that is also accompanied by an application bearing C.M.

No.18397/2012 seeking condonation of 300 days delay in filing the

appeal. The reason for delay given by Rojida Khatun is that after the

award was passed, the appellant No.2, Samina Khatoon, daughter of the

deceased Mohd. Akhtar, was in family way and therefore, she had to go

to her native village in Bihar. So far as other claimants, namely, the

parents of the deceased, Mohd. Akhtar, and his widow are concerned,

they were already living in the village. It has been stated that all of them

are illiterate and all of them tried to contact their counsel in Delhi;

however, they were unable to do so and consequently it is for the first

time, after 13 months, that is, on 5.10.2012 that they came to contact the

counsel through Mohd. Shakeel, husband of Samina Khatoon, daughter of

the deceased. It is at this stage that the counsel asked all the appellants to

go to Delhi for the purpose of signing papers and consequently, this

resulted in delay of 300 days in filing the appeal and since the delay was

not intentional or wilful or due to the aforesaid bona fide reason,

therefore, the delay may be condoned.

6. I have heard the learned counsel for the parties and have also gone

through the record. I have hereinabove already observed that delay of

147 days which has been caused by the appellant/insurance company has

not been condoned as 'sufficient cause' has not been shown by them. By

the same yardstick, if one looks into the explanation of the present

appellants in the cross appeal, that also does not show bona fide on the

part of the appellants in pursuing the matter. The award has been passed

on 13.9.2011. It is very unlikely that the counsel who was representing

the appellants/claimants before the MACT would not make them aware

that they could file an appeal against the award but despite this, the plea

which has been taken is that appellant No.2, the daughter of the deceased,

Mohd. Akhtar, was in family way and she had gone to her native town

where all the three other claimants, namely, the widow and the parents of

the deceased were living and all of them were busy in looking after the

daughter, Samina Khatoon, daughter of the deceased till the time she

delivered the child and it is only after that, her husband Mohd. Shakeel

almost after 13 months from the date of passing the award, chose to

contact the counsel. If Mohd. Shakeel could contact the counsel on

5.10.2012, he could have as well done the same thing much earlier than

that. No explanation has been given on that score.

7. In my considered view, it is a death case and the learned MACT

had passed an award for a sum of Rs.8,09,420/- and the entire award

amount having been received by the appellants from the insurance

company, they thought that they could get the amount enhanced from the

appellate court by filing an appeal as a counter blast had already been

initiated by the insurance company for reduction of the compensation

amount. It is with this idea that the appellants have chosen to file the

present appeal not only to counter the appeal of the insurance company

but also to get the amount enhanced after having accepted the award.

This cannot be permitted to be done, that filing appeals under MACT Act

become speculative exercise of getting the amount of compensation

enhanced. I feel that the explanation which has been given by the

appellant Rojida Khatun and others in the cross appeal bearing

No.1141/2012 is not bona fide or plausible and therefore, it cannot be

deemed to constitute a 'sufficient cause' within the definition of Section 5

of the Limitation Act. Accordingly, the delay of 300 days is also not

condoned and since the delay is not condoned, therefore, the appeal of the

claimants has also become time barred.

8. In view of the aforesaid facts, both the appeals, that is, the appeal

of the insurance company as well as that of the claimants are dismissed as

barred by time.

V.K. SHALI, J.

JULY 16, 2015 'AA'