Oriental Insurance Company ... vs Purnima Gogoi And 2 Ors
2022 Latest Caselaw 2852 Gua

                                                                     Page No.# 1/9

GAHC010035072021




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

                          Case No. : I.A.(Civil)/453/2021

         ORIENTAL INSURANCE COMPANY LIMITED
         A COMPANY REGD. AND INCORPORATED UNDER THE COMPANIES ACT,
         1956, HAVING ITS REGD. OFFICE AT 3, ORIENTAL HOUSE, A-25/27 ASAF ALI
         ROAD, NEW DELHI-2, WITH ONE OF ITS REGIONAL OFFICE AT G.S. ROAD,
         ULUBARI-7, GUWAHATI, REPRESENTED BY ITS REGIONAL MANAGER,
         GUWAHATI, ASSAM



         VERSUS

         PURNIMA GOGOI AND 2 ORS.
         W/O. LATE KAMAL GOGOI, PERMANENT R/O. VILL. BOKATA
         DIMARUGURI GAON, P.O. AND P.S. BAKHER NMUGURI, DIST. SIVASAGAR,
         ASSAM, PIN 785670 PRESENT R/O. GRIHASHRAM, H/NO. 53, BEHIND
         PRATIKSHA HOSPITAL, P.O. AND P.S. BORBARI, GUWAHATI, DIST.
         KAMRUP(M), ASSAM, PIN- 781036

         2:SRI MONTU BARUAH
          S/O SRI MOTRAM BARUAH
         RESIDENT OF VILLAGE BOKATA DIMARUGURI GAON
          P.O. AND P.S. BAKHER NMUGURI
          DIST. SIVASAGAR
         ASSAM
          PIN 785670

         3:SRI BIPUL NATH
          S/O SRI BEDHU NATH
          RESIDENT OF VILL. MOHKHUTI HOLMARIGAON
          P.O. AND P.S. BOKATA
          DIMARUGURI GAON
          P.O. AND P.S. BAKHER NMUGURI
          DIST. SIVASAGAR
         ASSAM
                                                               Page No.# 2/9

             PIN 78567

Advocate for the Petitioner   : MR. R C PAUL

Advocate for the Respondent : MR. N BORUAH




             Linked Case : I.A.(Civil)/4040/2019

            ORIENTAL INSURANCE COMPANY LIMITED
            A COMPANY REGISTERED AND INCORPORATED UNDER THE COMPANIES
            ACT
            1956
            HAVING ITS REGISTERED OFFICE AT 3
            ORIENTAL HOUSE
            A-25/27 ASAF ALI ROAD
            NEW DELHI-2
            WITH ONE OF ITS REGIONAL OFFICE AT G.S. ROAD
            ULUBARI-7
            GUWAHATI
            REPRESENTED BY ITS REGIONAL MANAGER
            GUWAHATI
            ASSAM


             VERSUS

            SMTI PURNIMA GOGOI AND 2 ORS
            W/O LATE KAMAL GOGOI
            PERMANENT RESIDENT OF VILLAGE BOKATA DIMARUGURI GAON
            P.O. AND P.S. BAKHER NMUGURI
            DIST. SIVASAGAR
            ASSAM
            PIN 785670
            PRESENT RESIDENT OF GRIHASHRAM
            HOUSE NO. 53
            BEHIND PRATIKSHA HOSPITAL
            P.O. AND P.S. BORBARI
            GUWAHATI
            DIST. KAMRUP(M)
            ASSAM
            PIN 781036

            2:SRI MONTU BARUAH
                                                              Page No.# 3/9

S/O SRI MOTRAM BARUAH
RESIDENT OF VILLAGE BOKATA DIMARUGURI GAON
P.O. AND P.S. BAKHER NMUGURI
DIST. SIVASAGAR
ASSAM
PIN 785670
3:SRI BIPUL NATH
S/O SRI BEDHU NATH
RESIDENT OF VILL. MOHKHUTI HOLMARIGAON
P.O. AND P.S. BOKATA
DIMARUGURI GAON
P.O. AND P.S. BAKHER NMUGURI
DIST. SIVASAGAR
ASSAM
PIN 785670
------------

Advocate for : MR. R C PAUL Advocate for : MR. N BORUAH appearing for SMTI PURNIMA GOGOI AND 2 ORS

Linked Case :

ORIENTAL INSURANCE COMPANY LIMITED

VERSUS

SMTI PURNIMA GOGOI AND 2 ORS

------------

Advocate for :

Advocate for : appearing for SMTI PURNIMA GOGOI AND 2 ORS Page No.# 4/9

BEFORE HON'BLE MRS. JUSTICE MALASRI NANDI

08.08.2022

1. Heard Mr. A. K. Purakayastha, learned counsel appearing for the applicant/petitioner as well as Mr. S. Khound, learned counsel appearing for the respondents/claimants.

2. This interlocutory application has been preferred by the applicant insurance company u/s 5 of the Limitation Act, 1963 for condoning the delay of 461 days in preferring the connected appeal against the Judgment and award dated 02/05/2018 passed by the learned member MACT No 3, Kamrup(M) in MAC case no 1460 of 2015.

3. It is stated in the petition that the copy of the Judgment and award was received by the regional office at Guwahati on 18/06/2018 and after the discussion between the offices of the different ranks of the applicant company, they have decided to prefer an appeal and the file was allotted to the present advocate for filing appeal on 17/08/2018 and ultimately the appeal was filed on 30/08/2018 before this court. It is also stated in the petition that due to oversight the learned counsel for the applicant was under the impression that the appeal was not time barred and they filed the appeal within the stipulated time of appeal as such there was no any prayer to condone the delay of filing the connected appeal. Subsequently, when the advocate for the applicant made an endeavor to get the appeal listed for admission, it was found that the filing section of the registry had made an endorsement on the body of the appeal that the appeal was filed after 24 days from the date of expiry of the statutory period of limitation. Accordingly learned advocate for the applicant filed an interlocutory application being no IA(C) 4040 of 2019 praying for condonation of delay of 24 days in preferring the connected MAC appeal. On receipt of the notice the respondent No. 1 entered appearance and filed objection stating that there was delay of 461 days in preferring the appeal and Page No.# 5/9

no grounds has been shown for such delay and as such the prayer of the applicant is liable to be dismissed. Thereafter, the applicant has preferred the instant interlocutory application being no IA(C) 453/ 2021 for condoning the delay of 461 days in preferring the connected MAC appeal.

4. It was urged by the learned counsel for the applicant that the applicant along with his counsel all along acted upon bonafide belief and understanding that the delay in preferring the appeal was 24 days as detected and endorsed by the registry and they were obliged and explained the delay for the said period and with that bonafide impression they filed condonation application and explained the delay of 24 days.

5. It is also the submission of the learned counsel for the applicant that neither the applicant nor its counsel could appreciate that during the period from the filing of the MAC appeal on 30/08/2018 till to the date of filing of condonation application on 15/11/2019, the period of limitation had continuously run out and the delay accrued during the intermediate period shall also be required to be explained by them. There was no any intentional or deliberate laches, negligence and inaction on the part of the applicant as well as the conducting counsel of the applicant and non explanation of delay for such period may not be treated as accepted to be deliberate or intentional and prayed to condone the delay in preferring the connected MAC appeal.

In support of his submission learned counsel for the applicant has placed reliance on a case law -

(2002) 10 SCC 176 (National Insurance Company Ltd vs. Giga Ram and others).

6. On the other hand, learned counsel for the respondent no 1/claimant has argued that the additional delay of condonation application so filed by the applicant is a mere afterthought as the same does not indicate any sufficient cause as to why the applicant failed to approach earlier before this court in preferring the accompanying appeal. It is also submitted that there was deliberate laches and Page No.# 6/9

negligence on the part of the applicant in preferring the appeal. The applicant has not explained the delay for the period from 30/08/2018 to 15/11/2019. It is the classic case of lethargy on the part of the applicant in pursuing of filing the appeal and in that view of the matter the prayer for delay of condonation application may be rejected.

In support of his contentions learned counsel for the respondent/claimant cited the following case laws

a. (2018) 1 GLT 584 (ICICI Bank Ltd vs. Bimla Devi Jajodia)

b. (2012) 3 SCC 563 (Post Master General and others vs. Living Media India Ltd and another)

7. I have considered the submissions of the leaned counsel for the parties.

8. At the outset it may be noted that the condonation petition has been preferred by the insurance company and it has sought condonation of delay on the ground that after the Judgment was pronounced the files were proceeded before the different ranks of officers of the insurance company for getting an opinion on the point of filing of an appeal against the impugned Judgment and order and it was finally approved.

9. While there is no dispute with the proposition that in order to succeed in an application filed u/s 5 of the Limitation Act, an applicant must satisfy the court that he was prevented by sufficient cause in filing the appeal within the period of limitation. Delay in filing appeals has been a subject matter of decision before the Hon'ble Apex court in a large number of cases. It has been interalia held by the apex court that section 5 of the Limitation Act is to be construed liberally so as to do substantial justice to the party. It would be useful to refer to the decisions of the Apex court in the case of state (NCT of Delhi) vs. Ahmed Jaan reported in (2008) 14 SCC 582. Relevant portion of the Judgment reads as under -

"...... the proof by sufficient cause is a condition precedent for Page No.# 7/9

exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause and the shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan vs. M. Krishnamurthy (AIR 1998 SC 3222) it was held by the Apex court that section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concern and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the government which in similar circumstances is not shown to an individual suitor, one cannot but take a practical view of the working of the government without being unduly indulgent to the slow motion of its wheels".

10. What constitutes sufficient cause cannot be let down by hard and fast rules. In the case of New India Assurance Company Ltd. Shanti Mishra (1975) 2 SCC 84, it was held by the Hon'ble Supreme Court that the discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In the case of Shakuntala Devi Jain vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three judges had held that unless want of bonafides of such inaction or negligence as would deprive a party of the protection of the section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condone.

11. In the case of Concord of India Insurance Company Ltd. vs. Nirmala Devi (1979) 4 SCC 365 which is a case of negligence of the counsel which misled a litigant into delayed pursued of his remedy, the default in delay was condoned. In the case of Lala Mata Din vs. A. Narayanan reported in (1969) 2 SCC 770 it was held that there is no general proposition that mistake of counsel by itself is always sufficient cause for Page No.# 8/9

condonation of delay. It is always a question of whether the mistake was bonafide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bonafide and it was not tainted by any malafide motive.

12. In the case of G. Ramegowda vs. Special Land acquisition officer reported in (1988) 2 SCC 142, it was held that no general principle saving the party from all mistakes of its counsel should be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condone in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay. In litigation to which government is a party there is yet another aspect which perhaps cannot be ignored. If appeals brought by government are lost for such defaults, no person is individually affected but what in the ultimate analysis suffers is public interest. The law of limitation is no doubt the same for a private citizen as for governmental authorities but somewhat different complexion is imparted to the matter where government makes out a case where public interest was shown to have suffered. It is axiomatic that decisions are taken by the officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise is a routine. Considerable delay of procedural red- tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible.

13. The above position was highlighted in the case of State of Nagaland vs. Lipok AO and others (2005) 3 SCC 752, it was noted that adoption of strict standard of proof sometimes fail to protract public justice and it would result in public mischief by skilful management of delay in the process of filing an appeal.

14. Applying the law laid down by the Apex court to the facts of the present case, this court is satisfied that the applicant insurance company has been able to render a satisfactory explanation for condonation of delay for 461 days in filing the Page No.# 9/9

connected appeal. The respondent has been unable to show that this application lacks bonafide or that there is negligence on the part of the applicant insurance company. Apart from that it is a settled position of law that the negligence or bonafide mistake of the counsel is sufficient to condone the delay.

15. In the result, the petition of condonation filed by the applicant is allowed. Delay of 461 days is condoned. Registry is directed to register the connected MAC appeal and place the matter for admission.

16. The interlocutory application stands disposed of.

JUDGE

Comparing Assistant