Jammu & Kashmir High Court
Bhagwan Singh vs National Insurance Co. Ltd. And ... on 2 September, 2021
Sr. No. 15
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CONC No. 25/2013
Bhagwan Singh
.... Applicant/appellant(s)
Through:- Mr. Vishnu Gupta, Advocate
v/s
National Insurance Co. Ltd. and others ..... Respondent(s)
Through:- Mr. D. S. Chouhan, Advocate
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. Through the medium of the instant condonation application,
delay of 1671 days in filing an appeal under Section 173 of Motor Vehicle
Act, 1988 is being sought by the applicant/appellant
2. It is being contended that an ex-parte award dated 31.12.2008
( for brevity „impugned award‟) in claim petition titled as Arshad Bibi and
others vs. National Insurance Co. and others came to be passed by the
Motor Accident Claims Tribunal, Jammu ( for brevity „Tribunal‟) of which
applicant/appellant had no knowledge as upon filing of the claim petition,
no notice was served upon the applicant/appellant either by registered post
or by ordinary process and that the applicant/appellant came to know about
the filing of the claim petition and passing of the impugned award upon
receiving warrants of attachment of his property from the Tribunal,
whereupon the applicant/appellant appeared before the Tribunal and
received a copy of the execution petition filed by the Insurance Company
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against him and that the applicant/appellant contacted the Advocate and
came to know that the ex-parte award has been passed against him for an
amount of Rs. 5,90,000/- with interest @ 7.5% P.A from the date of filing
of the petition till the date of payment, with liberty to respondent No.1-
Insuranc Company to recover the said amount from the applicant/appellant
and that the applicant/appellant contacted an Advocate who opined and
instructed him to challenge the award in view of the wrong finding of the
Tribunal in issue No. 3 and that the applicant /appellant, accordingly,
obtained certified copy of the award and also made available Rs. 25,000/-
as pre-deposit and other expenses for filing of the appeal to the Advocate
and that, as such, there has been no deliberate or intentional delay or lapse
on the part of the applicant/appellant in filing the appeal and that the delay,
if any, stands sufficiently explained.
3. The application is being resisted by the respondent No. 1-
Insurance Company in the objections filed thereto, wherein it is being stated
that the applicant/appellant after service of notice by the Tribunal choose
not to cause his appearance and defend the claim petition and that the
Insurance Company filed its response/objections to the claim petition
claiming exemption from indemnifying the insured on the ground that the
vehicle in question was driven by a driver without holding a valid and
effective driving licence on the date of accident. It is being further stated in
the objections that the explanation offered in the application by the
applicant/appellant is malafide, concocted and not trustworthy and that the
applicant/appellant did not count for the delay w.e.f. December 31st 2008
till the filing of the instant application.
3 Conc 25/2013
Heard learned counsel for the parties and perused the record.
4. 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.
5. 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.
7. Further 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."
8. A Reference to the judgment of the Hon‟ble 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,
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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."
9. Further the Apex Court in case titled Office of the Chief Post
Master General and others vs. Living Media India Ltd. and another, 2012
(3) SCC 563 has observed as under:-
" ........... 29. It needs no restatement at our hands
that the object for fixing time-limit for litigation is based on
public policy fixing a lifespan for legal remedy for the
purpose of general welfare. They are meant to see that the
parties do not resort to dilatory tactics but avail their legal
remedies promptly. Salmond in his Jurisprudence states that
the laws come to the assistance of the vigilant and not of the
sleepy.
10. Perusal of the record reveals that the Tribunal upon
entertaining the claim petition issued notice to the respondents including the
applicant/appellant herein and upon non-appearance and non-contest, set
him ex-parte and the respondent No. 1-Insurance Company in the claim
petition contested the claim petition.
11. The contentions thus, raised by the applicant/appellant that no
notice was issued or served upon him or that he had no knowledge about
the pendency of the claim petition is belied by the record. A notice stands
issued by the Tribunal to the applicant/appellant herein through registered
post on 15.03.2004 vide postal receipt No. 3988.
5 Conc 25/2013
12. Record would further reveal that a bailable warrant had been
executed through SSP District Samba pursuant to order on 15.09.2008
against the applicant/appellant for his appearance as the witness in the claim
petition.
13. 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. It is however, manifest 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.
13. 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 against the
applicant/appellant. 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 applicant 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.
6 Conc 25/2013
14. Viewed in the context what has been observed, considered and
analyzed hereinabove, the application in hand thus, entails dismissal and is,
accordingly, dismissed. The accompanying appeal consequently shall also
stand dismissed.
(JAVED IQBAL WANI)
JUDGE
Jammu
02.09.2021
Bir
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No.
