Mohinder Pal vs Sohan Lal And Another
2021 Latest Caselaw 1210 j&K

                                                                 Sr. No. 97

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                         Reserved on : -       14.09.2021
                                        Pronounced on: -       29.09.2021

                                                    CONC 153/2017
                                                    c/w
                                                    CONC 152/2017
     1. Mohinder Pal
     2. Rajinder Kumar

                                                  .... Applicant/appellant(s)

                            Through:- Mr. Narinder K Attri, Advocate
             v/s

Sohan Lal and another                                     ..... Respondent(s)


                            Through:- Mr. Jugal kishore Gupta, Advocate


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

Since both the applications arise in respect of common award

and invoke similar issues, as such, the same are disposed of together by this

common order.

CONC 153/2017

1. Through the medium of the instant application, condonation of

delay is sought in filing an appeal under Section 173 of Motor Vehicle

Act, 1988 against an award dated 08.12.2015 ( for brevity "impugned

award‟) passed by the Motor Accident Claims Tribunal, Kathua ( for

brevity „Tribunal‟), wherein the claim petition of the applicant/appellant has

been dismissed.

2 Conc 153/2017 & Cond 152/2017

2. The facts those emerge from the pleadings would reveal that

applicant/appellant suffered injuries on account of vehicular accident at G.

T. Road, Punjab. Two claim petitions came to be filed before the Tribunal,

one by the applicant/appellant herein another by one Rajinder Kumar, as the

said claim petitions have arisen out of a single vehicular accident. The

claim petitions came to be decided by a common judgment and an award

came to be passed wherein the claim petitions came to be dismissed,

however providing a liberty to the claimants to seek compensation from

owner, driver and insurer of unknown truck as and when its identity is

established, as the Tribunal had held that the petitioner/applicant herein

failed to prove that the accident was caused due to the negligence of driver

of matador bearing No. JK08B/9064.

3. A delay of 533 days is sought to be condoned through the

medium of the present application in filing the appeal on the premise that

the applicant/ appellant suffered 80% permanent disability and that his left

leg had been amputated on account of the injuries sustained in the vehicular

accident and that the applicant/appellant came to be treated in Civil

Hospital, Jalander, Hardas Hospital, Amritsar and Govt. Medical Collage,

Jammu since 23.06.2012 incurring an expenditure of Rs. 9,02,797/-after

availing loans from relatives/friends.

4. The claim petition filed before the Tribunal is stated to have

been disposed of on 08.12.2015, and a copy of the award is stated to have

been obtained on 12.12.2015, where after the applicant/appellant on

account of his disability/amputation of leg is stated to have been unable to 3 Conc 153/2017 & Cond 152/2017

pursue the matter, as also on account of non-availability of fee required for

filing of appeal, as also for the reasons that there had been communication

gap between the applicant/appellant and his counsel and that the

applicant/appellant obtained papers from the erstwhile counsel and

contacted the present counsel for filing of the appeal and that the appeal

could not be filed within time on account of the applicant/appellant being

bedridden and unable to travel as also of shortage of sources, inasmuch as,

communication gap of the applicant/appellant with the counsel and the

negligence of the counsel thereof.

CONC 152/2017

1. Through the medium of the instant condonation application,

Condonation of delay is sought in filing an appeal under Section 173 of

Motor Vehicle Act, 1988 against an award dated 08.12.2015 ( for brevity

"impugned award‟) passed by the Motor Accident Claims Tribunal, Kathua

( for brevity „Tribunal‟), wherein the claim petition of the

applicant/appellant has been dismissed.

2. The facts those emerge from the pleadings would reveal that

applicant/appellant suffered grievous injuries on account of vehicular

accident at G. T. Road, Punjab. The claim petition filed by the

applicant/appellant came to be decided by a common judgment and an

award came to be passed wherein the claims petition came to be dismissed,

however providing a liberty to the claimants to seek compensation from

owner, driver and insurer of unknown truck as and when its identity is

established, as the Tribunal had held that the petitioners/applicants herein 4 Conc 153/2017 & Cond 152/2017

failed to prove that the accident was caused due to the negligent of driver of

matador bearing No. JK08B/9064.

3. A delay of 530 days is sought to be condoned through the

medium of the present application in filing the appeal on the premise that

the applicant/ appellant suffered 80% permanent disability and that his left

leg had been amputated on account of the injuries sustained in the vehicular

accident in question and that the applicant/appellant came to be treated in

Civil Hospital, Jalander and Govt. Medical Collage, Jammu since

23.06.2012 incurring an expenditure of Rs. 2,50,000/-after availing loans

from relatives/friends.

4. The claim petition filed before the Tribunal is stated to have

been disposed of on 08.12.2015, a copy of the impugned award is stated to

have been obtained on 09.01.2016, where after the applicant/appellant on

account of his disability/amputation of leg is stated to have been unable to

pursue the matter, as also on account of non-availability of fee, appeal

could not be filed, as also for the reasons that there had been

communication gap between the applicant/appellant and his counsel, the

applicant/appellant obtained papers from the erstwhile counsel and

contacted the present counsel for filing of the appeal and that the appeal

could not be filed within time on account of the applicant/appellant being

bedridden and unable to travel as also of shortage of sources, inasmuch as,

communication gap of the applicant/appellant with the counsel and the

negligence of the counsel thereof.

5 Conc 153/2017 & Cond 152/2017

4. Non-applicant No. 2 has filed objections in opposition to the

application, wherein it is being contended that the applicant/appellant has

been contesting the claim petition before the Tribunal after sustaining

injuries/amputation of his leg and that the claim petition came to be

dismissed rightly by the Tribunal on the basis of law laid down by the Apex

Court in cases titled Oriental Insurance Co. Ltd. Vs. Premlata, 2007 (13)

SCC 476 and National Insurance Co. Ltd. vs. Rattani and others, 2009 (2)

SCC 75, and that there has been willful negligence on the part of the

applicant/appellant in not filing the appeal within time and that the

applicant/appellant is trying to carve out false and frivolous grounds in

getting the delay condoned.

Heard learned counsel for the parties and perused the record.

5. 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.

6. 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.

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:-

6 Conc 153/2017 & Cond 152/2017

"(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation."

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, 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."

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 7 Conc 153/2017 & Cond 152/2017

the laws come to the assistance of the vigilant and not of the sleepy.

7. Admittedly, claim petition came to be filed by the

applicant/appellant on 25.09.2012 and same came to be dismissed on

08.12.2015, after the applicant/appellant sustained injuries in the vehicular

accident. The applicant/appellant has been pursuing the said claim petition

ever since its institution in the year 2012 till its disposal in 2015. The

certified copy annexed with the appeal accompanying the instant

application reveals that the same has been applied for and obtained on

10.12.2015 and 12.12.2015 respectively. No explanation worth the name

whatsoever is offered in the instant application as to what prevented the

applicant/appellant from filing the appeal immediately after obtaining the

copy of the award. Even otherwise, seemingly there is no merit in the

appeal accompanying to the instant application, in that, the Tribunal has

rightly rejected the claim petition of the applicant/appellant having regard o

the facts and circumstances of the case, evidence on record and the law

occupying the field and the law laid down by the various Courts including

the Apex Court on the subject.

8. The applications in hand seemingly are 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 appellants /applicants 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 applications in support thereof is a stereotyped one.

8 Conc 153/2017 & Cond 152/2017

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

analyzed hereinabove, the applications in hand thus, entails dismissal and

are, accordingly, dismissed. The accompanying appeals consequently, shall

also stand dismissed.

10. Registry to place a copy of this order on the file of

Cond.152/2017.

(JAVED IQBAL WANI) JUDGE

Jammu 29.09.2021 Bir

Whether the order is speaking: Yes Whether the order is reportable: Yes

BIR BAHADUR SINGH 2021.09.29 17:53 I am the author of this document