Page No.# 1/6 vs Oriental Insurance Co. Ltd And Anr
2022 Latest Caselaw 3828 Gua

                                                                  Page No.# 1/6

GAHC010014232019




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

                         Case No. : I.A.(Civil)/258/2019

         ROUSHANARA BEGUM AND 3 ORS
         W/O LATE ABU HANIF, R/O VILL. BARUKHATI, P.S. BHURAGAON, DIST.
         MORIGAON, ASSAM, PIN

         2: MD. RAKYBUL HUSSAIN
          S/O LATE ABU HANIF
          R/O VILL. BARUKHATI
          P.S. BHURAGAON
          DIST. MORIGAON
         ASSAM
          PIN

         3: MISS RUMI BEGUM
          D/O LATE ABU HANIF
          R/O VILL. BARUKHATI
          P.S. BHURAGAON
          DIST. MORIGAON
         ASSAM
          PIN

         4: MUSSTT. HANUFA KHATUN
          W/O JAMIRUDDIN
          R/O VILL. BARUKHATI
          P.S. BHURAGAON
          DIST. MORIGAON
          ASSAM
          PIN
         (PETITIONER NOS. 2 AND 3 BEING MINORS ARE REPRESENTED BY THEIR
         MOTHER CUM NATURAL GUARDIAN MUSSTT. ROUSHANARA BEGUM I.E.
         PETITIONER NO. 1

         VERSUS

         ORIENTAL INSURANCE CO. LTD AND ANR
                                                                               Page No.# 2/6

             CHRISTIAN BASTI, AMARAVATI PATH, G.S. ROAD, GUWAHATI 781005,
             DIST. KAMRUP (M), ASSAM



Advocate for the Petitioner   : MR. A BARUAH

Advocate for the Respondent : MR. S K GOSWAMI (R1)



                                        BEFORE
                    HON'BLE MRS. JUSTICE MALASRI NANDI
                                        ORDER

27.09.2022 Heard Mr B J Mukherjee, learned counsel appearing for the applicants/claimants and Mr S K Goswami, learned counsel appearing on behalf of respondent/Insurance Company.

2. By this application filed under Section 5 of the Limitation Act, 1963, read with proviso of section 173 (1) of the Motor Vehicles Act, 1988, the applicants/claimants have prayed for condonation of 191 days' delay in filing the connected appeal against the Judgment and Award, passed by learned Member, MACT, Morigaon, in MAC Case No. 48/2013, which was finally modified by order dated 27.02.2018, passed by the learned Member, MACT, in Misc (J) (MACT) Case No. 24/2017.

3. It is stated in the petition that the MAC Case No. 48/2013, was initially decided vide Judgment and Order dated 30.03.2016. Thereafter, they were expecting that the awarded amount, which was made payable by the Insurance Company would be soon disbursed to them. However, after waiting for a year, they came to know that the Insurance Company has filed a review petition vide M J (MACT) Case No. 24/2017 and they were informed by their Advocate that it may take some time. They kept on inquiring about the final outcome of the said review petition. By that time, there was delay of 191 days to file the appeal. It is also submitted that the delay that has occurred Page No.# 3/6

is unintentional and beyond their control.

4. Learned counsel for the applicant has submitted that out of four applicants, applicant Nos. 2 and 3 are minor and applicant Nos. 1 and 4 are women, residing at Morigaon and it is not very easy on their part to arrange for travel very frequently from Morigaon to Guwahati. As such, there was delay and which may be considered, as the award of the Tribunal was delivered in their favour.

5. It is also the submission of the learned counsel for the applicants that the delay was caused merely due to fault of the engaged lawyer for the applicants, which is not intentional on their part.

6. In support of his submission, learned counsel for the applicants has submitted one case-law in Union of India -Vs- M/s. Harinagar Sugar Mills Ltd., reported in 2008 (5) GLR 24.

7. On the other hand, the learned counsel for the Insurance Company has submitted their objection by stating that though the applicant has preferred the appeal against Judgment and Award, passed by MACT, Morigaon, in MAC Case No. 48/2013, but in the Cause Title of the application, applicant has not reflected whether appeal has been preferred against the main Judgment and Award or against the order dated 27.02.2018, passed in Misc (J) Case No. 24/2017. It is further stated that originally the judgment was passed on 30.03.2016 and the present application for condonation of delay has been filed by the applicant in the year 2018, As such, it is not correct that there is a delay of 191 days in preferring appeal.

8. Learned counsel for the Insurance Company has argued that if the delay is to be counted from the date of original judgment and award, then delay will be more than 900 days. Delay in preferring appeal is intentional and deliberate. As such, present petition is liable to be dismissed.

By referring a case-law, reported in (2022) 5 SCC 736; learned counsel for the Page No.# 4/6

Insurance Company has submitted that if any review has been filed with the consent of the other side, no appeal lies.

9. I have considered the submissions of learned counsel for both the parties.

10. It is an admitted fact that out of four applicants, applicant Nos. 2 and 3 are minor and applicant Nos. 1 and 4 are women, residing at Morigaon around 70 kilometres away from Guwahati. Normally, a liberal approach is required in a delay condonation application. However, if the interest of other side is jeopardized because of delay, then the Court must have to consider, whether the satisfactory explanation for delay is given or not.

10. In the case of V K Thukral & Others -Vs- Lalit; reported in 2006 ACJ 2440, owner has filed an application for condonation of 416 days delay in preferring appeal. His condonation application has been considered by the Apex Court and relevant observations are made as follows:-

"Learned counsel for the applicants, relied upon Naubat Ram Sharma -Vs- Additional

District Judge-II, Moradabad, AIR 1987 SC 1352, to urge that counsel's fault should not visit the client with penal consequences. Learned counsel also relied upon Collector, Land Acquisition, Anantnag -Vs- Katigi, AIR 1987 SC 1353, to urge that sufficient cause should be construed liberally. Reliance was also placed on the decisions in Chhabi Kulavi -Vs- Ganesh Chandra Mondal, JT 2001 (1) SC 267, State of Bihar -Vs- Nilamani Jha, JT 2000 (Suppl.1) SC 209, BT Rai -Vs- Ramanna Gowda, JT 2000 (Suppl.1) SC 211 and Rafiq -vs- Munshilal, AIR 1981 SC 1400, to urge that counsel's inaction should not result in the litigant suffering.

It is true that in an adversial litigation, client repose faith in their Advocate and having paid the fee and given requisite instructions to the lawyer, party would be fully justified in being confident that his lawyer would discharge his professional obligations. Therefore, where it is brought on record that a party has done everything in its power to Page No.# 5/6

effectively participate in a proceedings, Court should be liberal in construing sufficient cause and should lean in favour of such party. A litigant does not stand to benefit by lodging appeals at a belated stage. Whenever substantial justice and technical consideration are opposed to each other, cause of substantial justice has to be preferred. Justice oriented approach has to be taken by the Court However, this does not mean that the litigant has a free licence to approach the Court at its will."

Similarly, in case of Oriental Insurance Company Limited -Vs- S D Sahare & Others, reported in 2008 ACJ 1327, which reads as follows:

Expiry on the period of limitation prescribed for filing appeal in a contested matter, particularly in those cases, where claims are allowed under the Motor Vehicles Act, in favour of the injured and those who are left behind to suffer because of the death of their breadwinner, vests a valuable right in the claimant, which cannot be taken away, on mere ipsi dixit of the party, losing the litigation. Strong reasons are, therefore, required to be spelled out by such appellant seeking condonation of delay in filing the appeal. It is further required to indicate the steps taken by it, to ensure filing the appeal within the prescribed time and the circumstance which had prevented it to file from filing the appeal within the prescribed period of limitation."

11. In view of the aforesaid legal propositions as well as the background of the present case, it is observed that the Tribunal has delivered the Judgment in favour of the present applicants as claimants. It is true that there was some delay in filing appeal, either of 191 or 900 days. But it was explained by the applicant to some extent, which cannot be ignored that the counsel for the applicant is responsible for such delay. As I have already mentioned that both the applicants, i.e., applicant Nos. 1 and 4 are women and the applicant Nos. 2 and 3 are the minor children of the deceased, residing around 70 kilometres away from Guwahati, where the appeal is to be filed, which deserves liberal consideration for condoning delay in filing the appeal.

12. It also appears that the applicants have spelled out the requisite details regarding Page No.# 6/6

delay in preferring the connected appeal.

13. In the result, the prayer of the applicants is allowed by condoning the delay.

14. Registry is directed to register the appeal and list the same in the admission column.

15. Interlocutory Application stands disposed of.

JUDGE

Comparing Assistant