United India Insurance Co. Ltd vs Prakash Chand And Others
2021 Latest Caselaw 644 j&K

                                                                      Serial No. 222

                HIGH COURT OF JAMMU AND KASHMIR
                           AT JAMMU

                                                       CONC No. 140/2016
                                                       IA No. 01/2018


United India Insurance Co. Ltd.                                      ...Applicant(s)
                                     Through:     Mr. Vishnu Gupta, Advocate.

                            v/s


Prakash chand and others                                            .... Respondent(s)
                                     Through: None.


Coram:        HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                          ORDER

1. This order shall dispose of the application seeking condonation of

delay in filing of an appeal under Section 173 of the Motor Vehicle Act, 1988

against the award dated 30.06.2016 (for short „the award‟) of the Motor Accidents

Claims Tribunal, Samba (for short „the Tribunal‟), in claim petition No.139/HM Act

titled as "Prakash Chand and others v. Andhir Singh and others".

2. The facts those emerge from the perusal of the case are that non-

applicants 1 to 3 herein filed a claim petition in the Tribunal on account of death of

one-Anil Kumar, 25 years‟ old (son of non-applicant 1&2 and brother of non-

applicant no.3) in a motor vehicle accident on 05.04.2011 near New Bus Stand,

Samba. The Tribunal passed the award and saddled the applicant/company with

liability and directed it to pay the respondents 1 to 3 Rs.7,00,000/- with interest @7

per cent per annum from the date of filing of the petition.

3. The applicant/company states to have come to know about the award

on 10.08.2016 upon receiving a copy of the same sent by MACT, Samba whereafter

the matteris stated to have been considered at Jammu office of the

applicant/company and forwarded to Regional Office, Chandigarh for seeking

instructions/guidance in the matter. The entire file along with award is stated to have

been sent to Regional Office, Chandigarh vide letter dated 29.08.2016 where the

matter is stated to have been bona-fidely considered and an opinion decided to be

solicited from Advocate Dharam Pal Gupta, Chandigarh, who is stated to have

furnished the opinion on 19.09.2016 recommending for challenging the award in an

appeal. It is being stated that upon receiving of the matter and opinion from Sh. D P

Gupta, Advocate, the matter was again considered by various officer at various

levels at Regional Office, Chandigarh and vide letter dated 07.10.2016 and received

at Jammu Office on 14.10.2016, appeal was decided to be filed for challenging the

award. It is being next stated that the file was handed over immediately to panel

advocate with instructions to prepare and file the appeal whereupon the proposed

memo of appeal along with applications was submitted to the applicant/company on

26.10.2016. The appeal is filed on 28.11.2016 accompanied with the instant

application.

4. It has been stated in the instant application that whatever delay has

been caused in filing of the appeal has been for the aforesaid reasons constituting

sufficient cause and the said reasons had been beyond the control of the appellants.

Primarily and fundamentally on the bedrock of the aforesaid explanation offered, the

applicant/company seek condonation of delay in filing the appeal. The respondents

despite being summoned and served did not choose to appear except respondents 4

and 5 who did not choose to file any objections in opposition to the instant

application.

5. Heard learned counsel for the applicant and perused the record.

6. Before proceeding to analyze the application and grounds urged

therein for condonation of delay it would be appropriate and advantageous to

refer to the legal position enumerated by the Apex Court on the subject of

condonation of delay.

7. The law on the subject of section 5 of the Limitation Act is no

more res integra and there is a long line of decisions rendered and delivered

by the Hon‟ble Apex Court on the subject.

8. It is established that the law of limitation has to be applied with

all its rigor prescribed by a statute. Although Section 5 of J&K Limitation Act

Samvat , 1995 provides for extension of the period of limitation in certain

cases, and appellant/applicant seeking such extension is required to satisfy the

court that there has been a sufficient cause for not preferring the appeal or

making the application within the prescribed period.

9. Apex Court in State of Madhya Pradesh and others and

Bherulal, 2020 (10) SSC 654, at paras 3 and 5 has observed as under: -

"3. No doubt, some leeway is given for the Government inefficiencies but

the sad part is that the authorities keep on relying on judicial

pronouncements for a period of time when technology had not advanced

and a greater leeway was given to the Government [LAOv.Katiji]. This

position is more than elucidated by the judgment of this Court in Post

Master General v. Living Media India Ltd. (2012) 3 SCC 563 where the

Court observed as under:-

"27) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be

condoned mechanically merely because the Government or a wing of the Government is a party before us.

28) Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red- tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30) Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded!

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay."

10. The Hon‟ble Apex Court in Perumon Bhagvathy Devaswam vs.

Bhargavi Amma, 2008 (8) SCC 321, at para 13 (iii) enunciated besides others

the following principle qua an application under Section 5 of the Limitation

Act:-

"(iii) The decisive factor in condonation of delay, is not the length of

delay, but sufficiency of a satisfactory explanation."

11. A Reference to a judgment of the Hon‟blr Apex Court reported in

AIR 1998 SC 2276, titled as P. K. Ramachadran v. State of Kerala would also

be appropriate and advantageous, wherein at para 6 following is noticed.

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

12. Perusal of the record tends to show that the award has been

passed by the Tribunal after conducting a full dressed trial and upon contest

by the appearing counsel for the parties on either side including the applicant

herein. Record further tends to show that after passing of the award in

presence of appearing counsel for the parties including the applicant herein on

30.06.2016, an application for certified copy appended with the memo of

appeal has been made on 12.07.2016 and issued on 23.07.2016. No mention

about the same is made in the application but instead the copy of the award is

stated to have been come to the knowledge of the applicant on 10.08.2016

upon receiving the same from MACT Samba. Perusal of the application does

not spell out as to when the matter was being bona-fidely considered by

Jammu Office at various levels and when did it decide to seek instruction

/guidance from the Regional Office, Chandigarh. Furthermore, nothing is

being stated in the application as to who considered the entire case at Regional

Office, Chandigarh and how much time did it consume or else how much time

was consumed at Jammu Office after receiving the file from Regional Office,

Chandigarh on 14.10.2016. The application is also silent about the date the file

was sent to Sh. D. P. Gupta, Advocate for seeking his opinion. No explanation

worth the name is offered in the application as to how much time the said

advocate consumed in furnishing his opinion in the matter.

13. Keeping in mind the aforesaid legal position and law laid down

by the Apex Court, what emerges from the record and the application in hand

that the explanation offered by the applicant in the application for seeking

condonation of delay is cryptic and casual and cannot by any sense of

imagination said to be sufficient, plausible, credible and cogent. The

application in hand seemingly is filed with the impression that seeking

condonation of delay, the expression „sufficient cause‟ would receive a liberal

construction in favour of the applicant being the government owned company

and custodian of public money. Even the affidavit accompanying the

application in support thereof prima facie is stereotyped one.

14. It is worth mentioning herein that the instant application relates to

condonation of delay in filing an appeal under Section 173 of the Motor

Vehicles Act, against an award passed in favour of the non-applicants on

account of death of son of non-applicants 1 and 2, and brother of non-

applicant no.3 in a vehicular accident. A claim lodged before the Tribunal and

an award passed thereon in such cases aims at providing cheap and speedy

remedy and justice by way of compensation to a victim. A justice oriented

approach thus, in such matters is possible if the courts lean against the casual

and non-diligent approach and unbecoming conduct of the applicants seeking

condonation of delay in filing the appeals against such awards, unless, a

sufficient cause is shown in tune and line with the principles and propositions

laid down by the Hon‟ble Apex Court. The said principle of sufficient cause,

however, as noticed above is missing in the instant case.

15. Viewed in the context what has been observed, considered and

analyzed hereinabove, the application in hand is found to be without any merit

and is, accordingly, dismissed, as a consequence whereof the accompanying

appeal shall also stand dismissed.

16. CONC No.140/2016 is dismissed.

(JAVED IQBAL WANI) JUDGE Jammu 02.07.2021 Raj kumar Whether the order is speaking? : Yes/No.

                         Whether the order is reportable? :    Yes/No.




RAJ KUMAR
2021.07.07 15:47