National Insurance Co. Ltd vs In The Instant Application
2021 Latest Caselaw 230 j&K

                                                         Sr. No. 1

            HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

                                            Pronounced on : 03.03.2021


                                                  CONC 255/2013
                                                  in
                                                  MA 9900007/2013
                                                  IA(99001/2013[D-
                                                  881/2013])

National Insurance Co. Ltd.


                                                        ....Applicant(s)


                              Through:- Mr. Rajesh Kumar, Advocate
            v/s

Javid Ahmad Malik and others
                                                    .... Non-applicant(s)

                          Through:- Mr. Ajay Chouhan, Advocate


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

1. In the instant application, applicant-company seeks condonation

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

1988 against an award dated 27.05.2013 passed by the Motor Accidents Claim

Tribunal, Ramban ( for brevity" Tribunal), in Claim petition No. 19/2013

titled as „Javid Ahmed Malik vs. Mohd Yaqoob Rather and others‟.

2. The background facts those emerge from the case in hand are that

on 02.05.2004 Non-applicant/respondent No. 1 herein while riding a scooter

met with an accident and received injuries as a result of which he suffered 2 Conc 255/2013

permanent disablement to the extent of 30%. The claimant-respondent No. 1

at the time of accident was 30 years old.

3. The Non-applicant/respondent No. 1 instituted a claim petition

under Sections 166/140 of Motor Vehicle Act and a contesting award came to

be passed by the Tribunal on 27.05.2013 allowing an award of Rs.1,40,000/-.

4. The aforesaid award (supra) is questioned in the appeal

accompanying the instant application.

5. The case set up by the applicant -company in the application

for condonation of delay in filing the appeal is that upon passing of the award

on 27.05.2013 by the Tribunal, the applicant-company‟s counsel defending

the case at Ramban applied for certified copy on 05.08.2013, whereafter

counsel for the applicant-company is stated to have sent the certified copy of

the award to the applicant-company by registered post stated to have been

received on 22.08.2013 and whereupon the legal section of the applicant-

company is stated to have bonafidely considered the impugned award and

obtained opinion of the defending counsel as well. The entire claim file along

with copy of the award is stated to have been sent to the Regional Office at

Chandigarh for their consideration/permission, since as per the norms of the

company, it is only the Regional office which is competent to decide whether

appeal should be filed against the award or not.

6. It is being stated that the entire claim file was bonafidely

considered by the Regional Office of the applicant-company at various levels

for which the file had to move from table to table and from officer to officer,

thereby resulting into ubintentional delay. It is further being stated that the

facts as detailed out in the application, constitute a good and sufficient cause

for condoning the delay of 59 days in filing the appeal.

3 Conc 255/2013

7. Per contra, respondents-non-applicants 2 and 3 have filed

objections in opposition to the instant application and seek dismissal of the

same on the premise that no important question of law is involved in the

appeal accompanying the instant condonation application and that in the

memo of appeal it is wrongly alleged that driving license of respondent No. 3

was fake, as no evidence had been produce by the applicant-company in this

regard. The further stand taken in the objections is that respondent No. 3 was

possessing a valid licence and was authorized to drive heavy passenger motor

vehicle (Bus) at the time of accident. It is further averred in the objections that

no cogent reason has been mentioned by the applicant-company in the

condonation application for not filing appeal within time.

Heard learned counsel for the parties.

8. 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.

09. 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.

10. 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.

4 Conc 255/2013

11. 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.

5 Conc 255/2013

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."

12. 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."

13. 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."

6 Conc 255/2013

14. Keeping in mind the above legal position enunciated by the Apex

Court what emerges from the perusal of the record and pleadings of the

applicant-company is that the applicant-company has failed to give any

plausible reasons for condoning the delay in filing the appeal. The averments

made by the applicant-company in the application for condonation of delay do

not constitute sufficient cause for condonation of delay. The appellant has

made vague averments in the application. In para 2 of the application, it is

stated that the impugned award was passed on 27.05.2013 and the certified

copy was applied for by the applicant‟s counsel on 05.08.2013 which was

delivered to the counsel on 15.08.2013 and received by the applicant-

company on 22.08.2013. No explanation has been given in the application

about the delay on the part of the applicant‟s counsel to apply for the certified

copy on 05.08.2013 and delay in handing over the certified copy to the

applicant-company on 22.08.2013. In para 4 of the application, it is stated that

the entire claim file along with the copy of the award as also with the opinion

of the defending counsel was sent to the Regional office at Chandigarh

through legal section of the applicant-company and considered at various

levels for which the file had to move from table to table and from officer to

officer. Neither any affidavit of the concerned Officer has been filed who had

custody of the claim file for consideration nor any details and dates are

provided in this regard. It is stated that the defending counsel of the applicant-

company delivered the certified copy of the award to the applicant-application

on 22.08.2013, for the reasons best known to him meaning thereby that the

applicant-company is not even aware of the said reasons. This may show

negligence on the part of the counsel for the applicant-appellant, yet the same

negligence seems to be contributed as the applicant-company has not made 7 Conc 255/2013

any effort to ascertain the said reasons from the counsel. Even after

22.08.2013, the applicant has taken more than three months to file the appeal

and there is no sufficient explanation offered for the said period as well.

15. The application in hand seemingly is filed with the impression

that in seeking condonation of delay, the expresses „sufficient cause‟ would

receive as liberal construction in favor of the appellant-applicant being an

agency of the Government. It is however, manifest and without any doubt that

the explanation offered by the appellant /applicant in the application in hand

cannot by any sense of imagination said to be sufficient, plausible, and cogent.

The explanation per se is cryptic and casual.

16. Risking repetition 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-

applicant/respondent No. 1 who suffered 30% disability on account of 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..

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

analyzed hereinabove, the application in hand is found to be without any 8 Conc 255/2013

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

accompanying appeal shall also stand dismissed.

18. Dismissed along with connected IA(s)

(JAVED IQBAL WANI) JUDGE

Jammu 03.03.2021 Bir

Whether the order is speaking: Yes /No Whether the order is reportable: Yes/No

BIR BAHADUR SINGH 2021.03.03 18:03 I attest to the accuracy and integrity of this document