Gujarat High Court
Parsingh Maganbhai Bariya vs Ashokbhai Amarsing Koli on 11 August, 2025
NEUTRAL CITATION
C/CA/308/2025 ORDER DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.
308 of 2025
In F/FIRST APPEAL NO. 590 of 2025
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PARSINGH MAGANBHAI BARIYA
Versus
ASHOKBHAI AMARSING KOLI & ANR.
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Appearance:
MR. SABIR B SAIYYAD(6322) for the Applicant(s) No. 1
MR. ALKESH N SHAH(3749) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 11/08/2025
ORAL ORDER
1. Heard Mr. Khan, learned advocate appearing on behalf
of Mr. Sabir Saiyyad, learned advocate for the applicant. Mr.
Richa Shah, learned advocate has appeared on behalf of Mr.
Shah, learned advocate for the respondent no.2- Insurance
Company. Rule issued by this Court upon the respondent no.1
though reported to have been duly served, however has
chosen not to appear and contest the present application.
Noticing the limited prayers sought for, the present
application is peremptorily taken up for hearing with the
assistance of the learned advocates for the respective parties.
2. The present application is filed under Section 5 of the
Limitation Act read with Section 173(1) of the Motor Vehicles
NEUTRAL CITATION
C/CA/308/2025 ORDER DATED: 11/08/2025
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Act, 1988 praying for condonation of delay of 2128 days
caused in preferring the appeal.
3. Learned advocate appearing on behalf of the applicant-
original claimant, at the outset, has submitted that
unfortunately the claim petition preferred by the present
applicant under Section 163 A of the Act, 1988 has been
dismissed on the ground that the applicant being rider of the
vehicle has entered into the shoes of the owner and therefore,
the claim petition is held not maintainable. He has further
invited my attention to the recent order of the Hon'ble
Supreme Court in the case of Wakia Afrin (Minor) vs. M/s
National Insurance Company, Neutral Citation 2025
INSC 919, wherein the Hon'ble Supreme Court after
considering its earlier decisions in the case of Ningamma v.
United India Insurance Co. Ltd, reported in (2009) 13
SCC 710, Ramkhiladi v. United India Insurance Co.
reported in (2020) 2 SCC 550 and Oriental Insurance Co.
Ltd. v. Rajni Devi reported in (2008) 5 SCC 736 has
referred the issue to the Larger Bench. He has therefore,
submitted that the issue of the maintainability of the claim
petition under Section 163 A of the Act, 1988 is pending
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C/CA/308/2025 ORDER DATED: 11/08/2025
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consideration before the Larger Bench. Having apprised this
Court on the aforesaid issue involved, the learned advocate
has further drawn my attention to the averments made in the
application and has submitted that though the impugned
judgment and award was pronounced on 3.10.2018, the
applicant had immediately applied for certified copy, which
was made available on 31.12.2018 and the applicant was
expected to move in appeal by 03.03.2019. However, the
applicant had been unable to pursue the remedy of appeal
because of injuries sustained by him in the accident. It was
further submitted that because of the disability sustained, the
applicant was unable to effectively pursue the vocation and
earned his livelihood. In absence of the same, the applicant
was facing serious financial constraints to meet with the legal
expenses as well. During the aforesaid period, the Covid
pandemic had led to further hardships. He has therefore,
offered to waive the interest for the interregnum period of
delay, however has urged this Court to accept his case on
merits by extending an opportunity of hearing. He has
therefore, urged this Court to take liberal approach and to
condone the delay.
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4. Learned advocate Ms. Shah appearing on behalf of
respondent no.2- Insurance Company has vehemently
objected to the aforesaid submissions. According to her, the
explanation offered cannot be considered as sufficient cause
which prevented the applicant for pursuing the appeal. She
has therefore, urged not to entertain the present application
and to dispose of the appeal as well.
5. Considering the aforesaid submissions of the learned
advocates for the respective parties, in light of the averments
made in the application which has been stated on oath, in
absence of any contradiction being pointed out by learned
advocate for the respondent no.2, in the peculiar facts and
circumstances of the case, considering the fact that the issue
which arises for consideration in the proposed appeal is at
large pending consideration in the reference raised by the
Hon'ble Supreme Court and noticing the explanation offered,
looking at the benevolent scheme of the Act, this Court is
inclined to accept the aforesaid explanation offered to be
sufficient cause which prevented the applicant for pursuing
the remedy of appeal. Noticing the benevolent scheme of the
Act and the fact that the claim petition itself has been
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dismissed, this Court is inclined to condone the delay caused
in preferring the appeal. Hence, delay of 2128 days caused in
preferring the appeal is hereby condoned on condition that
the applicant - claimant shall not be entitled to interest of the
aforesaid interregnum period of delay caused in preferring
the appeal in case if the applicant is able to successfully
established his case on merits. With these observations,
present application stands allowed.
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
