Subhash Yadav vs Naresh Kumar & Ors(The New India ...
2015 Latest Caselaw 7127 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

                                      Decided on: 18th September, 2015

+     MAC. A. No.724/2015 & CM 20166-68/2015 (delay)

      SUBHASH YADAV                                  ..... Petitioner
                  Through:            Manoj Kumar, Advocate

                         versus

      NARESH KUMAR & ORS(THE NEW INDIA ASSURANCE
      CO LTD)                          ..... Respondent

                         Through:     Balwant Chaubey, Proxy Counsel
                                      for Mr. Pankaj Seth, Advocate for
                                      R-3.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI J. (ORAL)

1.    The     present   MAC       Appeal   has   been     filed       by   the

petitioner/revisionist with a prayer to set aside the order dated

03.03.2012 passed by the Ld. MACT by virtue of which an award

to the tune of Rs. 4,29,779 along with interest at the rate of 7.5%

per annum from the date of the claim petition till realization was

passed in favor of the claimant/injured and against the appellant

herein with recovery rights to the insurance company who was

directed to release the awarded amount to the claimant/injured

forthwith. Along with the appeal, an application under S.5 of the

Limitations Act 1963 seeking condonation of delay of 1158 days in

filing and a delay of 4 days in refilling of the present appeal.

2. The appellant/applicant in the application seeking condonation of

delay of 1158 days has attributed the same to the wrong legal

advice of his counsel. It is contented that after the filing of the joint

written statement the counsel representing the appellant in the

matter assured him that since the vehicle was insured and that the

driver/respondent no 2 had valid license and permits therefore the

appellant had nothing to worry and his presence was not warranted

in the court. It is stated in the application that it was on account of

this misrepresentation that the appellant chose not to appear before

the court under the bonafide impression that his counsel is

contesting the matter with utmost professional care, unfortunately

which was not so. This lead to an ex-parte order dated 18.12.2008.

It is further averred that the appellant was summoned to depose

before the court for the insurance company/ respondent no. 3 on

06.07.2009 and after recording of the statement was discharged on

the same date and again ill-advised by his counsel to not make any

further appearance before the court as the same was not required.

Consequently the impugned order dated 03.03.2012 was passed in

the absence of the appellant herein. It is stated that the appellant

received a notice from the Honorable Supreme Court in the SLP

bearing No. 3023/2012 filed by the Insurance Company against the

impugned order dated 03.03.2012 but since the same was

dismissed, the appellant under the misconception that since no

adverse order has been passed against him. The appellant did not

opt to file any appeal against the impugned order.

3. It has been averred by the appellant that it was only in the

execution proceedings that the appellant was appraised of the

contents of the order dated 03.03.2012. Subsequently, it is stated

on further advice of the counsel for the appellant a review was filed

on 24.11.14 in the execution court which was dismissed vide order

22.05.15 with an observation that the appellant may challenge the

order in appeal.

4. It has been stated by the appellant that thereafter he applied for the

certified copies of the order dated 22.05.2015 and he got the same

on 30.05.2015 whereas the trial court record could be obtained only

by 11.06.2015. It is further stated that the appellant vide letter

dated 09.06.2015 sought a verification report with respect to the

permit dated 01.05.2006 of the alleged offending vehicle, from the

Transport department GNCT Delhi which was provided so on

04.07.2015. It is averred that after requisitioning all the aforesaid

documents the appellant approached various counsels to seek legal

advice and therefore many days were exhausted for the same as

well.

5. It is the case of the appellant the delay caused in the filing of the

present appeal is neither deliberate nor intentional but is

attributable to the wrong and the poor legal advice from the

counsels engaged in the matter. In the light of the aforesaid it is

prayed that the delay of 1158 days be condoned.

6. I have heard the learned counsel for the appellant and perused the

averments made in the application for condonation of delay. The

reasons offered on account of which the delay has been caused do

not show the bona fides of the appellant in preferring the appeal.

As a matter of fact, the conduct of the appellant is full of gross

negligence. This is on account of the fact that no material

information or evidence has been filed to support the reasons stated

in the said applications.

7. It is true and correct that the counsel is duty bound to prosecute the

matter with responsibility and professionalism but at the same time

the litigant who is the affected party has to be aware of the

developments in his own case. It is unfathomable that a litigant

would not be updated where his interest or life savings are at stake.

8. In the instant case prima facie I am not convinced that any cogent

reason has been given by the appellant in the application which

may constitute 'sufficient cause' in the eyes of law. It is pertinent

to note that the award came in the year 2012 but steps towards

procuring the certified copy were made only after 22.05.2015 that

is after a long delay of almost 3 years and it is finally now in

September, 2015 that an appeal has been filed. Further there is also

a delay of 4 days in re-filing of the present appeal.

9. The appellant has stated that he acted under the wrong advice of

the counsel but the same seems to be a far-fetched theory and is

more like an afterthought, in the absence of any evidence.

10. The act of the appellant clearly shows that there was a lack of

seriousness in pursuing legal remedies that might be available to

him. It clearly flows from the aforesaid that there was gross

negligence on the part of the appellant in prosecuting the matter.

11. Section 5 of the Limitation Act clearly lays down that before the

delay is condoned, it must be shown that there is a 'sufficient

cause' for the same and the 'sufficient cause' which has been

interpreted by the Apex Court in Esha Bhattacharjee vs.

Management Committee of Raghunathpur Nafar Academy and

Others; (2014) 2 SCC (LS) 595 is a cause which is beyond the

human control. The Honourable Supreme Court in the aforesaid

judgment very categorically stated that although the words

"sufficient cause" must be interpreted with a liberal, justice

oriented, pragmatic and non-pedantic approach but at the same

time the bonafides of the applicant seeking condonation of delay

must be made out. It was further held that the increasing tendency

to perceive delay as a non-serious matter and, hence, lackadaisical

propensity can be exhibited in a nonchalant manner and requires to

be curbed.

12. In the instant case prima facie I am not convinced that any cogent

reason has been given by the appellant in the application which

may constitute sufficient cause in the eyes of law as no evidence

has been adduced to substantiate the averments made in the

application.

13. "Vigilantibus Et Non Dormientibus Jura Subveniunt" is a settled

principle of law i.e the law assists those that are vigilant with their

rights, and not those that sleep thereupon. Merely because the

appellant has woken up belatedly to file the present appeal without

showing any sufficient cause does not entitle the appellant to

disturb a finding which has been returned by the Ld. MACT more

than three years back.

14. Further even on merits, it is evident from the perusal of the

impugned order that the appellant miserably failed to establish his

case before the Ld. MACT. It has been recorded in the impugned

order that a notice under Order 12 Rule 8 CPC was issued to the

appellant herein with directions to produce the valid permit to ply

the offending vehicle as on the date of the accident but the said

notice were neither replied to or complied with showing the

negligent attitude of the appellant. It is suspicious as to why the

appellant even after the notice chose not to prosecute the matter.

After getting due notice of the order he could have sought a second

opinion. Even otherwise the reasoning arrived at by the learned

MACT is after a careful and judicious analysis of the facts and

evidence and does not warrant the interference of this court. The

injured was only 25 years of age and due to the accident had lost an

eye and his face has been de-shaped and the quantum of

compensation awarded does not seem exorbitant as the same is

supported by a well reasoned award.

15. Accordingly the application for condonation of delay is dismissed

as no sufficient cause is made out. Resultantly the appeal is

dismissed as barred by limitation.

16. Pending application stands disposed off.

V.K. SHALI, J.

SEPTEMBER 18, 2015 AD