Gujarat High Court
Hinaben Chandrakan Patel vs Mahendrabhai Mahijibhai Patel on 11 January, 2021
Bench: N.V.Anjaria, A.S. Supehia
C/CA/4001/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 4001 of 2019
In F/FIRST APPEAL NO. 36606 of 2019
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HINABEN CHANDRAKAN PATEL
Versus
MAHENDRABHAI MAHIJIBHAI PATEL
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Appearance:
MR J H PATEL(10195) for the Applicant(s) No. 1,2,3
MR DAKSHESH MEHTA(2430) for the Respondent(s) No. 2
MR. RUSHANG D MEHTA(6989) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 11/01/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr. Jay Patel for the applicants and learned
advocate Ms. Mousami Nanavati for learned advocate Mr. Dakshesh
Mehta for the respondent No.2 insurance company.
1.1 Respondent No.1 is already served with the Rule, but has not
chosen not to appear.
2. It is to condone the delay of 836 days which has taken place in
preferring the First Appeal that the present application is filed.
3. The appellants-the applicants are the original claimants who have
sought to prefer the First Appeal for enhancement in the compensation
C/CA/4001/2019 ORDER
against the judgment and award dated 29th April, 2017 passed by Motor
Accident Claims Tribunal (Main) Vadodara in Motor Accident Claim
Petition No. 949 of 2014.
4. Explaining the delay, it was stated that after deliverance of the
judgment and award of the Claims Tribunal, the papers were handed over
to advocate to prefer the appeal. The applicants had visited the office of
the advocate instructing him to prefer the appeal. It is further stated that
the applicants were under the impression that the appeal would be
prepared and filed. However, learned advocate did not act. It is thereafter
submitted that the applicants knew in the month of May, 2019 that the
appeal was not filed by the advocate. Thereafter, another advocate was
required to be engaged to prefer the appeal.
4.1 It was submitted that it was due to inaction and fault on part of the
advocate to whom the papers were firstly handed over that the time
elapsed to result into delay of 836 days.
5. It is trite that the litigant should not be made to suffer for the fault
on part of the advocate. In the facts of the present case, it could not be
said that the delay was deliberate or was attributable to any conduct on
part of the applicants. The applicants deserves to be allowed to contest
their case on merits.
5.1 At the same time, as was rightly submitted by learned advocate for
the respondent insurance company that looking to the extent of delay
which is 836 days, the rights of the parties deserves to be balanced.
When this aspect was put to learned advocate for the applicants, he
submitted that the applicants are ready to be subjected to any condition
for condoning the delay.
C/CA/4001/2019 ORDER
5.2 The court is of view that the interest of the parties would be
balanced if the applicants are made to forgo interest for the delayed
period while condoning the delay.
6. In the aforesaid view, delay is condoned but by providing that the
applicants shall not claim any interest for the said delayed period.
7. The application is allowed accordingly. Rule is made absolute in
the said terms.
(N.V.ANJARIA, J)
(A. S. SUPEHIA, J)
C.M. JOSHI
