Jammu & Kashmir High Court

United India Insurance Co. Ltd vs Non-Applicant/ on 26 March, 2021

                                                          Sr. No.

            HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

                                       Pronounced on: . 26 .03.2021

                                                  Conc No. 89/2017

United India Insurance Co. Ltd.

                                             ....Applicant/Appellant(s)


                            Through: - Mr. Sanjay K. Dhar, Advocate
            v/s


Jagan Nath and others

                                       .... Non-applicant/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 18.03.2016 of the Motor Accident Claims Tribunal,

Doda ( hereinafter „Tribunal‟).

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

claim petition came to be filed by the respondents/non-applicants 1 and 2

herein under Section 166 of the Motor Vehicles Act, claiming compensation

in respect of the death of deceased Sudesh Kumar claiming to have been a

driver by profession earning Rs. 15,000/- per month.

3. The applicant-insurance company being respondent No. 1 in the

claim petition has contested the claim petition and sought its dismissal 2 Cond 89/2017

primarily on the ground that the vehicle involved in the accident was being

plied against the terms and conditions of the insurance policy so much as

respondent No. 3 the driver of the offending vehicle was not possessed of a

valid and effective driving licence.

4. The Tribunal framed as many as five issued. No evidence has

been produced by the respondents in general and applicant-insurance

company in particular. The Tribunal passed an award saddling the applicant-

insurance company with the liability.

5. It is being stated in the application, while seeking condonation of

delay that the applicant/insurance company had no knowledge and

information about the passing of the award in that, the advocate appearing for

the applicant had no point of tie informed about the same and that it was only

on 29.12.2016, upon a notice received from the Tribunal directing the

applicant-insurance company to deposit the awarded amount, the applicant

derived the knowledge of the award. A copy of the award is stated to have

been received on 15.02.201, where after it is being stated that the applicant

upon contacting one Mr. Sumit Thakur, Advocate at Doda applied for a

certified copy of the award on 13.03.2017 which came to be made available to

the applicant on 15.03.2017. Where after upon its receipt on 16.03.2017 the

same was examined at Divisional Office, Jammu and after seeking legal

opinion thereof, the matter was referred to the competent authority at

Chandigarh for approval/permission to file an appeal.

6. It is being stated that on 29.05.2017 the applicant/insurance

company decided to file an appeal and thereafter the appeal was got prepared

and filed.

3 Cond 89/2017

7. On the basis of the aforesaid explanation as contended in the

application supported with an affidavit, a delay of 353 days is sought to be

condoned.

Heard learned counsel for the applicant-insurance company

and perused the record.

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.

9. 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.

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 4 Cond 89/2017

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."

5 Cond 89/2017

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."

14. 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. Even the affidavit accompanying

the application in support thereof is a stereotyped one.

6 Cond 89/2017

15. 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 in respect of death of one Sudesh Kumar. 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

the claimants. 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