Urmila Chand vs Sonu Chand And 5 Ors
2021 Latest Caselaw 198 Gua

                                                                    Page No.# 1/7

GAHC010063682018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : CRP/65/2018

         URMILA CHAND
         W/O- LATE PRAKASH CHAND, R/O- D-71, 1ST FLOOR, CHATTARPUR
         ENCLAVE, NEW DELHI- 110074



         VERSUS

         SONU CHAND AND 5 ORS.
         C/O- S K SINGH, H NO. 14/469, SECTOR 14, INDIRA NAGAR, LUCKNOW-
         226016

         2:MSTR ADARSH CHAND
          C/O- SK SINGH
          H NO. 14/469
          SECTOR 14
          INDIRA NAGAR
          LUCKNOW- 226016

         3:MSTR UTKARSH CHAND
          C/O- SK SINGH
          H NO. 14/469
          SECTOR 14
          INDIRA NAGAR
          LUCKNOW- 226016 SL NO. 2 AND 3 BEING REP. BY THEIR MOTHER AND
         NATURAL GUARDIAN OPP PARTY NO.1

         4:UNITED INDIA INSURANCE CO. LTD
         A COMPANY REGD UNDER THE COMPANIES ACT AND HAVING ITS HEAD
         OFFICE AT 24 WHITES ROAD
          MADRAS AND REGIONAL OFFICE AT DISPUR
          GUWAHATI- 5

         5:BIMAL KEJRIWAL
                                                                                 Page No.# 2/7

             ADVOCATE
             TINSUKIA DISTRICT COURT
             OBRGURI
             TINSUKIA
             ASSAM
             PIN- 786126

            6:NARESH PRASAD
            ADVOCATE
            TINSUKIA DISTRICT COURT
             BORGURI
            TINSUKIA
            ASSAM- 78612

Advocate for the Petitioner   : MR. S P CHOUDHURY

Advocate for the Respondent : MR. S R GOGOI (R1)

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

Date : 22-01-2021

JUDGMENT AND ORDER (CAV)

Heard Mr. S.P. Choudhury, learned counsel for the petitioner, Mr. S.R. Gogoi, learned counsel for the respondent nos. 1 to 3 and Mr. A.K. Gupta, learned counsel for the respondent no.6. None appears on call for the respondent nos. 4 and 5.

2) The petitioner is the claimant no.1 in MAC Case No. 125/2009, which she had instituted along with respondent nos. 1, 2 and 3 as co-claimants. The petitioner is the mother of the deceased Late Priyank Chand, who had died in a motor accident. The respondent no.1 is the wife of the deceased and the respondent nos. 2 and 3 are stated to be the minor sons of the deceased. The said MAC Case No. 125/2009 was allowed by the learned Member, MACT, Tinsukia against the respondent no.4, i.e. United India Insurance Co.

Page No.# 3/7

Ltd. vide judgment and award dated 11.11.2011, holding the claimants to be entitled to a total compensation of Rs.11,82,000/- with interest @ 4% per annum of the awarded amount from 31.10.2009, the date of filing of the claim petition to 18.12.2009 and from the date of receipt of copy of the judgment and award.

3) The insurer had filed an appeal before this Court, which was numbered as MAC Appeal no. 79/2012, and the said appeal was dismissed by judgment dated 02.09.2014. However, in connection with interlocutory stay application, being MC 1188/2012, which was accompanying the memo of appeal, this Court by an order dated 05.12.2013, had directed the insurer to deposit a sum of Rs.4.00 lakh, and it was provided that on such deposit, the sum of Rs.1.00 lakh each be released in favour of the petitioner and respondent no.1 respectively and that a sum of Rs.1.00 lakh each be invested in fixed deposit account of State Bank of India in favour of the minor sons of the deceased.

4) An amount of Rs.13,26,000/- was deposited by the insurer towards satisfaction of the award of Rs.11,82,000/- and interest thereon. The petitioner had only been released a sum of Rs.1.00 lakh in terms of order dated 05.12.2013, and alleging that she was deprived of her share in the award, the petitioner, through her legal aid counsel appointed by the District Legal Services Authority, filed a review petition before the Member, MACT, Tinsukia, on 09.12.2015 under Section 114 read with Order XLVII and section 151 CPC, which was accompanied with a separate application for condonation of delay, which was registered as Misc. (J) Case No. 6/2015. In the said petition, the petitioner claiming ignorance of reasons why she did not receive her share of compensation amounting to Rs.3,31,500/-, sought for review of the disbursement order. The petitioner claimed that she was ill and was suffering from rheumatoid arthritis and has undergone three surgical operations for CBD stone and hernia, which caused delay in approaching the Court and the petitioner claimed that the respondent no.1 (claimant no.2) be directed to deposit excess drawn amount of Rs.2,21,500/- to the petitioner. The learned Member, MACT, Tinsukia by order dated 12.01.2018, assigned reasons and held that the petitioner could neither show any document of undergoing three surgeries between the period of 20.05.2015 to 09.12.2015 or that she Page No.# 4/7

had been seeking legal assistance from four learned counsel previously engaged and accordingly, concluded that the reasons shown in the petition was very vague and obscure and not proved by any evidence. Accordingly, the said Misc. (J) Case No. 6/2015 was dismissed.

5) Assailing the said impugned order, the learned counsel for the petitioner has submitted that the learned Tribunal had committed gross error in not considering the explanation tendered by the petitioner in right earnest and failed to take note of the well settled law that a condonation application should be examined with certain amount of leniency and should not be dismissed on the ground that day to day delay had not been explained. It is submitted that there was no dispute that the petitioner was one of the legal heir of her deceased son and had a right to claim motor accident claim compensation. Therefore, the learned Tribunal could not have deprived the petitioner of her rightful share of compensation. It is submitted that the learned Tribunal approached the matter with pedantic approach, which amounted to jurisdictional error and therefore, a case with good merit was thrown out.

6) The learned counsel for the respondent nos. 1, 2 and 3 has submitted that the entire story of the petitioner was built on a false premise because there is an admission on part of the petitioner in para 12(c) of her rejoinder affidavit that she was present before the learned Tribunal on 21.04.2015 accompanied by her son Shishir Chand and that she and respondent no.1 were only allowed to go inside the Tribunal and they had barely spent 30 seconds before the Member, MACT, Tinsukia and that she and the respondent no.1 were handed over their respective cheques. It is submitted by the learned counsel for the petitioner that in the petition filed on 21.04.2015, all the claimants had asked for their share, but the learned tribunal had not provided the petitioner with her due share of compensation.

7) The learned counsel for respondent no.6 had submitted that he was present only to secure the interest of the learned legal aid counsel, who was unnecessarily dragged in Page No.# 5/7

the controversy between the petitioner and the respondent no.1. He submits that the respondent no.6 had submitted his affidavit- in- opposition and had taken a stand that he had acted on instructions received from the petitioner. It is submitted after the review petition and condonation application was drafted, the same was sent by e-mail and the petitioner got the print-out and after swearing affidavit, the same was sent back for filing. It is also submitted that after disposal of Misc. (J) Case No. 6/2015, the certified copy was sent by registered post to the address provided in the claim petition, but the same was returned unserved. It is seen that the respondent no.5, who is also one of the counsel engaged by the petitioner had submitted his affidavit-in- opposition, inter alia, stating that on 21.04.2015, the petitioner was personally present before the Tribunal and filed a joint petition no. 223 with respondent no.1 for release of the compensation. It has been specifically stated that on receipt of the cheque, the petitioner had put her signature on the order-sheet. It has been prayed that he was unnecessary made party and that his name be struck of.

8) Perused the materials on record including the revision petition, affidavit- in- opposition filed by the respondent nos. 1, 5 and 6, rejoinder affidavit filed by the petitioner against the affidavit-in- opposition filed by the respondent nos. 1 and 5. It is seen that not only the respondent nos.1 and 5 had taken a specific stand that the petitioner was present and on acceptance of cheque, had put her signature on the order-sheet of the learned Tribunal, but the said stand is affirmed by the petitioner. Therefore, it is apparent that at the time of receiving the cheque for Rs.1.00 lakh on 21.04.2015, the petitioner did not raise any grievance. Assuming that the petitioner did not understand the implication of receiving cheque for Rs.1.00 lakh, but there is no denying that as on 21.05.2015, the final award had already been deposited before the learned Tribunal and that this Court had already dismissed MAC Appeal no. 79/2012 by judgment dated 02.09.2014. Therefore, the only conclusion that can be reached is that the petitioner having consciously and voluntarily accepted the cheque for Rs.1.00 lakh, having successfully encashed it without any demur, had made claim for more money as her share of compensation. The petitioner has not made any attempt to explain why on 21.04.2015, when she was present before the learned Tribunal with her son, she did not apply for certified copy of the order-sheet of 21.04.2015 despite putting her signature on Page No.# 6/7

the order-sheet. Therefore, the petitioner had personal knowledge of the proceeding of 21.04.2015, as such, the projection that she had spent time to call for information under RTI Act appears to be merely a ploy to create a story to cover up for the laches and delay in applying for review.

9) It is seen that in the present revision, the petitioner had not disclosed that she had put her signature in the order sheet while receiving the cheque for Rs.1.00 lakh and it has also not been disclosed that on the said date, she was accompanied with her son, namely, Shishir Chand. In fact the disbursement order passed by the learned Tribunal on 21.04.2015 has not been annexed to this revision petition. However, the respondent no.1 has annexed the copy of the joint petition no.223/15 dated 21.04.2015 and a copy of the order dated 21.04.2015 alongwith her affidavit-in-opposition. On a perusal of the same, the petitioner and the respondent no.1 are found to have jointly signed the verification and the said petition contained a prayer to allow the claimants to withdraw the amount of compensation, without indicating the share of the parties. The said petition specifically contains averment in paragraph-1 that the insurer had deposited a sum of Rs.13,07,913 in the Tribunal. The order dated 21.04.2015 discloses the payment of Rs.1.00 lakh given to the petitioner, release of a sum of Rs.3.00 lakh each to be kept in fixed deposits in the name of claimant nos.3 and 4 till their attaining majority and releasing of an amount of Rs.6,07,913/- to the respondent no.1. It was further indicated in the order that till date a sum of Rs.18,311/- is accumulated as interest on the deposited amount which was to be disbursed in favour of the claimant and direction was issued for the issuance of cheque in their S/B account no.325513828 of Central Bank of India, Indira Nagar, Lucknow and 0084-93700- 000250 of Yes Bank Limited, Chattarpur, New Delhi respectively after proper identification through their learned advocate. Therefore, when the petitioner had signed the order sheet dated 21.04.2015 and when she has received a cheque for Rs.1.00 lakh, she is deemed to know of the contents of the said order. Thus, having accepted the order dated 21.04.2015 by which the award was apportioned, the plea that the petitioner was not aware of the proceedings or the contents of order dated 21.04.2015, falls through as unacceptable. The order dated 21.04.2015 cannot be said to be vitiated by fraud.

Page No.# 7/7

10) Therefore, for the aforesaid reasons and in light of discussions above, the Court does not find that the impugned order dated 12.01.2018, thereby dismissing Misc. (J) Case No.6/2015 is vitiated by any jurisdictional error or that in passing the said order, the learned Tribunal had committed any perversity of not considering any relevant materials having bearing in the case. This Court is inclined to concur with the finding held by the learned Tribunal that the reasons shown for the delay are vague and obscure and not supported by any document. Moreover, no medical documents of the petitioner has been annexed in the present revision petition to show that the petitioner had undergone three surgeries as projected in the condonation application filed before the learned Tribunal.

11) Therefore, as the impugned order does not suffer from any jurisdictional error, this is not a fit and proper case to exercise extra ordinary superintending jurisdiction under Article 227 of the Constitution of India to interfere with the impugned order dated 12.01.2018 passed by the learned Member, MACT, Tinsukia in Misc. (J) Case No.6/2015. This revision stands dismissed, leaving the parties to bear their own cost.

JUDGE

Comparing Assistant