The United India Insurance Co. Ltd vs Dilipbhai Ratilal Parmar
2023 Latest Caselaw 3136 Guj

        C/CA/1252/2021                                 ORDER DATED: 21/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CIVIL APPLICATION NO. 1252 of 2021

                          In F/FIRST APPEAL NO. 14889 of 2021

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                         THE UNITED INDIA INSURANCE CO. LTD
                                        Versus
                              DILIPBHAI RATILAL PARMAR
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Appearance:
MR RATHIN P RAVAL(5013) for the Applicant(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1
MR AJAY R MEHTA(453) for the Respondent(s) No. 3
MR H M SHAH(3997) for the Respondent(s) No. 1.1,1.2,1.3
MR YOGEN N PANDYA(5766) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                   Date : 21/04/2023
                                    ORAL ORDER

1. Heard learned Advocate Mr. Rathin P. Raval on behalf of the

applicant, learned Advocate Mr. Tejas Shukla on behalf of the respondents

No.1.1, 1.2 and 1.3, learned Advocate Mr. Yogen N. Pandya on behalf of

the respondent No. 2 and learned Advocate Mr. Ajay R. Mehta on behalf of

the respondent No.3.

2. By way of this application, the applicant seeks for condoning delay of

2055 days caused in preferring first appeal challenging judgment and order

passed by the learned Commissioner under Workmen Compensation Act,

dated 14.08.2015 in Workman Compensation (Non-Fatal) Case No. 6 of

2002.

C/CA/1252/2021 ORDER DATED: 21/04/2023

3. Learned Advocate Mr. Rathin Raval on behalf of the applicant would

contend that undoubtedly the applicant - Insurance Company had not

participated in the proceedings inspite of being joined as a party

respondent, yet the principal issue on which the delay is sought to be

condoned is on a submission that there was never any insurance policy

which was submitted before the learned Commissioner. Learned Advocate

Mr. Raval would submit that as such, the applicant had received copy of a

summons from the Office of the Mamlatdar, Khambhat, calling upon the

applicant to remain present on 22.03.2021 for the purpose of issuance of a

recovery certificate and whereas it is on such date i.e. the date of receipt of

such summons on 18.03.2021 that the applicant-Insurance Company came

to know about the fact of the proceedings being in existence and

immediately thereupon, the applicant had tried to gather the documents and

thereafter preferred the present appeal. Learned Advocate would submit

that though the delay is substantial, the principal contention of the present

applicant would be that the entire judgment of the learned Commissioner

being flawed in absence of the insurance police, the substantial delay also

may be condoned by this Court.

3.1 Learned Advocate Mr. Raval would draw the attention of this Court

to the document list in the impugned decision and would submit that the

said document list does not reflect about any insurance policy having been

C/CA/1252/2021 ORDER DATED: 21/04/2023

produced on record. Learned Advocate would also draw the attention of

this Court to the relevant observations of the learned Commissioner, more

particularly whereby the learned Commissioner inter alia observes at Page

No. 22 of the impugned decision that the respondent No.1 i.e. the employer

vide Exh. 30 had submitted that Insurance Police No. 41/2001/041002/11

for period between 06.06.2001 to 05.06.2001 for insured amount of Rs.

1,68,000/- for which premium of Rs. 5,652/- had been paid. Learned

Advocate would submit that other then the application in question, the

insurance policy, had never been produced and inspite thereof, and without

appreciating the said fact, the Insurance Company had been imposed with a

liability. Furthermore, learned Advocate would emphasis on the policy

number as mentioned hereinabove, and would submit that the policy

number does not contain the first 6 digits of a policy which represents the

office code of the office which issued the policy in question. Learned

Advocate would submit that the applicant having ascertain at the divisional

office, Anand and other 5 offices in an around Anand, had come to a

conclusion that no such police had been issued in the year 2001-2002 and

whereas learned Advocate would submit that a fake policy had been relied

upon, and therefore, learned Advocate would submit that the applicant has

got a good case on merits and therefore also the delay is requested to be

condoned.

C/CA/1252/2021 ORDER DATED: 21/04/2023

3.2 Learned Advocate Mr. Raval would rely upon the decision of the

Hon'ble Apex Court in case of Executive Officer, Antiyur Town Panchayat

Vs. G. Arumugam (D) By Lrs., reported in 2015 (3) SCC 569 and decision in

case of Ummer Vs. Pottengal Subida, reported in 2018 (15) SCC 127 in

support of his contentions.

4. At this stage, it would be relevant to state that learned Advocate Mr.

Raval, upon instructions, would also submit that in case the respondent

No.2 herein who was opponent No.1 before the learned Commissioner and

who had submitted application Exh.30 referred to hereinabove, were to

produce a copy of the original policy, then the appeal of the applicant-

appellant may be dismissed with cost.

5. As against the submissions made by learned Advocate Mr. Raval, the

present application is vehemently objected to by learned Advocate Mr.

Yogen Pandya for the respondent No.2. Learned Advocate Mr. Pandya

would submit that the Insurance Company, had at the relevant point of

time, chosen not to participate in the proceedings, more particularly the

Insurance Company having been joined as respondent No.3 in the

proceedings and notice also having been issued as regards the proceedings

to the Insurance Company before the learned Commissioner, yet the

Insurance Company had chosen not to appear all throughout. Learned

C/CA/1252/2021 ORDER DATED: 21/04/2023

Advocate would submit that the case had been filed by the respondent

workman in the year 2002 and whereas the case had been decided in the

year 2015, and whereas the case remained on file before the learned

Commissioner for around 13 years, during which period, the Insurance

Company had completely abdicated its responsibility and had never

contested the proceedings and whereas even thereafter, the Insurance

Company had not even participated in the miscellaneous proceedings for

issuance of recovery certificate and which also came to be decided in the

year 2017, and whereas now after such a substantial delay, the applicant-

Insurance Company may not be heard to question the decision of the

learned Commissioner, more particularly as regards the liability of the

Insurance Company.

5.1 Learned Advocate Mr. Pandya as regards the offer made by the

learned Advocate for the Insurance Company would submit that it would be

very difficult to even presume that more than 2000 days after the decision

of the learned Commissioner, the party in question would retain any

documents with regard to the said proceedings. Under such circumstances,

more particularly submitting that the applicant has not made out any

sufficient cause for condoning the delay, learned Advocate Mr. Pandy would

request this Court to reject the present application.

C/CA/1252/2021 ORDER DATED: 21/04/2023

6. This application is vehemently contested by learned Advocate Mr.

Ajay R. Mehta appearing for the respondent No.3-ONGC. Learned

Advocate Mr. Mehta would reiterate the submissions made by learned

Advocate for the original employer and would further submit that in

addition to not participating in the main proceedings, as pointed out by

learned Advocate Mr. Pandya, the applicant had also not participated in the

proceedings as regards issuance of the recovery certificate. Learned

Advocate would submit that a perusal of the said order would also reflect

that the respondent No.3 therein i.e. the Insurance Company, had even after

being issued with notice of the recovery proceedings, had chosen not to

contest the said proceedings. Learned Advocate would submit that even the

said proceedings had been concluded vide order dated 23.06.2017. Learned

Advocate would submit that though notice has been issued in both the main

proceedings as well as the proceedings for issuance of recovery certificate,

the Insurance Company choosing not to contest the same, cannot now be

heard to contend that the date of knowledge with regard to the proceedings

was on 18.03.2021 i.e. the date on which the summons had been received

from the Office of the Mamlatdar, Khambhat with regard to issuance of

recovery certificate. Learned Advocate would submit that the Insurance

Company had every opportunity to contest the proceedings and even to

contest the fact of any insurance policy being in existence and yet, for

C/CA/1252/2021 ORDER DATED: 21/04/2023

almost from the year 2002 till the present applicantion had been filed i.e. in

the year 2021 i.e. for a period of 19 years, the Insurance Company had not

questioned the same and whereas learned Advocate would request this

Court that in view of the fact that the proceedings had remained

uncontested all throughout insofar as the Insurance Company is concerned,

the delay being substantial, may not be condoned by this Court.

7. Learned Advocate appearing for the claimants would also rely upon

the submissions made by learned Advocate Mr. Pandya and learned

Advocate Mr. Mehta and would request this Court not to condone the delay

in question.

8. Heard learned Advocates for the respective parties, who have not

submitted anything else.

9. At the outset, it would be required to be stated that while the

applicant in the additional affidavit, seeks to rely upon the summons dated

10.03.2021 received by the Office of the present applicant on 18.03.2021 as

the date when they had came to know about such proceedings, but in the

considered opinion of this Court, such a contention cannot be

countenanced. From a perusal of the order passed by the learned

Commissioner, which is sought to be impugned in the main first appeal

dated 14.08.2015, it would appear that originally the Insurance Company

C/CA/1252/2021 ORDER DATED: 21/04/2023

had not been joined as party respondent and whereas later on, the Insurance

Company was sought to be joined and upon an application preferred by the

respondent No.2-opponent No.1 before the learned Commissioner, a notice

had been issued to the Insurance Company and thereafter since the

Insurance Company had chosen not to remain present or file its reply and

hence the stage of filing reply of the Insurance Company had been closed.

It would further appear that after the decision in the main proceedings, the

workman had preferred an application for issuance of recovery certificate

and whereas even from perusal of the order passed by the learned

Commissioner dated 23.06.2017 in the said proceedings, it would appear

that inspite of notice being served upon the Insurance Company, the

Insurance Company had chosen not to appear. Thus, it would appear that

the Insurance Company had knowledge about the proceedings from the

initiation of the proceedings and whereas the Insurance Company had taken

a conscious decision not to participate in the proceedings and hence, the

contention that it is only upon summons with regard to issuance of

recovery certificate being served upon the applicant that the applicant came

to know about the proceedings, being an incorrect submission, is rejected.

10. It would also be pertinent to mention at this stage that even in the

application for condoning delay or in the additional affidavit filed in support

of the application for condoning delay, it is not the case of the applicant

C/CA/1252/2021 ORDER DATED: 21/04/2023

that they had neither been served with the summons of the main

proceedings or summons with regard to the proceedings for issuance of

recovery certificate. The applicant is trying to make out a case that it is only

upon summons being served as regards issuance of recovery certificate by

the Mamlatdar, Khambhat, that they came to know about the proceedings in

question, which submission being factually incorrect, is rejected. As noticed

hereinabove, it would appear that the applicant - Insurance Company had

been served at the stage of the original proceedings and even at the stage of

execution i.e. the proceedings for issuance of recovery certificate and

whereas the Insurance Company having not contested the proceedings at

that relevant point of time, now cannot be heard to state that it is only upon

the summons being served upon them on 18.03.2021 by the Mamlatdar,

Khambhat that they came to know about the proceedings in question.

11. As regards the submission made by learned Advocate Mr. Raval on

behalf of the Insurance Company that the appeal preferred by the

Insurance Company may be dismissed with cost in case the original

employer is able to produce some proof with regard to the insurance policy,

this Court is inclined to accept the submissions made by learned Advocate

Mr. Yogen Pandya on behalf of the employer that approximately 8 years

after the original order passed by the learned Commissioner dated

14.08.2015, and approximately 6 years after the order passed in the recovery

C/CA/1252/2021 ORDER DATED: 21/04/2023

application, the employer, could not be expected to retain any documents

with regard to such proceedings, more particularly since as far as the

employer was concerned, the matter had attained finality in view of no

appeal being preferred against the orders for a substantially long period of

time.

12. In any case in the considered opinion of this Court, since as noted

hereinabove, it clearly appears that the Insurance Company had been

absolutely careless about contesting the proceedings, and had remained

negligent all throughout, even the submission made by learned Advocate

though on the first blush appearing to be very fair, could not be accepted.

13. Insofar as the decisions relied upon by the learned Advocate for the

applicant, it is required to be noted that while it is true as observed by the

Hon'ble Apex Court in case of Executive Officer, Antiyur Town Panchayat

(supra) that the court must always take a justice-oriented approach while

considering an application for condonation of delay, but at the same time, it

also requires to be noted that the applicant has to come before this Court at

least with some semblance of sufficient cause and whereas in absence any

reason which would constitute sufficient cause, even if justice-oriented

approach is taken, in the facts of this case, this Court would not be able to

condone the huge delay which has occurred.

C/CA/1252/2021 ORDER DATED: 21/04/2023

13.1 Insofar as the decision in case of Ummer (supra) where the Hon'ble

Apex Court as stated that delay of each day is not required to be explained

and that there must be a sufficient cause coming out from the application

within the meaning of Section 5 of the Limitation Act, in the considered

opinion of this Court, a perusal of the application would reveal that except

for stating that the applicant after receiving the notice from the Office of

the Mamlatdar, Khambhat, had tried to search/identify the policy in

question, therefore some time had elapsed, the applicant has failed to

mention any reason as to why the applicant inspite of being served with the

notice of the proceedings had neither appeared or contested in the original

proceedings and even as to why the applicant inspite of being served with

the notice had chosen not to appear or contest the proceedings for issuance

of recovery certificate. A perusal of the application as well as the additional

affidavit would clearly reveal that the explanation for the delay is only post

18.03.2021 i.e. for the period after the notice of the Mamlatdar had been

received and whereas the application as well as the additional affidavit do

not make out any sufficient cause whatsoever as regards the delay which is

caused from the date of the original decision i.e. 14.08.2015.

14. Considering the same, in the thoughtful opinion of this Court, no

cause much less sufficient cause being made out by the present applicant,

C/CA/1252/2021 ORDER DATED: 21/04/2023

the present application for condonation of delay being meritless is hereby

rejected. Consequently, the first appeal also shall stand disposed of.

(NIKHIL S. KARIEL,J) BDSONGARA