Suraj Chand vs Bajaj Allianz Insurance Co. Ltd. ...
2023 Latest Caselaw 989 j&K

                                                                          Sr.No. 08


                HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT JAMMU

                                                   CONC No. 212/2018


Suraj Chand                                            .... Appellant(s)/ Petitioner(s)

                   Through :- Mr. A K Shan, Advocate

         V/s

Bajaj Allianz Insurance Co. Ltd. and                                ....Respondent(s)
Others
                   Through :- Mr. Sunny Mahajan, Advocate for R-1
                              None for R-2 & 3
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                            ORDER

17.05.2023 (ORAL)

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

1538 days delay in filing the appeal against award dated 30.04.2014

passed by Motor Accidents Claims Tribunal Udhampur (herein, for short

'tribunal') in case titled "Bansi Lal vs. Ashok Kumar & Ors."

2. The facts giving rise to the filing of the instant application emerging from

the record would reveal that the Respondent No. 2 herein filed a claim

petition under Motor Vehicles Act 1988 against the applicant herein for

the injuries sustained by him on account of vehicular accident dated

30.10.2008. The applicant herein having been impleaded as Respondent in

the said claim petition, being the owner of the vehicle came to be

summoned by the tribunal upon entertaining the claim petition on

03.06.2010 and again afresh on 31.07.2010.

3. It is stated in the application that the applicant upon receipt of notice(s)

from the tribunal in the claim petition, engaged a counsel for contesting

the claim petition, who is stated to have promised the applicant herein to

represent him before the tribunal and inform him about the progress of the

case and that on account of such promise and assurance, the applicant

remained satisfied and waited for the information from his engaged

counsel in the matter, who however, did not provide any information to

the applicant about the case.

4. It is stated that it was only in the month of July 2018, the applicant

received a notice from the tribunal whereupon, he engaged one Ms. Shallu

Khajuria, Advocate, who appeared before the tribunal on 10.08.2018 and

upon receipt of the copy of the execution application instructed the

applicant to file objections to the application and that being not satisfied

with the advice of the said counsel, the applicant herein engaged a senior

counsel and upon his advice, the applicant obtained the copies of the

award and interim orders passed in the execution application, whereupon,

the applicant came to know that the counsel engaged earlier in the matter

had failed to appear before the tribunal, resulting into passing of an

exparte award, whereby, the Insurance Company/Non Applicant 1 herein

had been saddled with the liability with a liberty to recover the awarded

amount from the owner of the vehicle/applicant herein and that the

applicant intended to challenge the said exparte award in an appeal before

this Court and that since, it was time barred, as such, has filed the instant

application for condonation of delay.

5. The grounds urged in the application for seeking condonation of delay in

the instant application is that, the applicant was not informed by his

counsel about the progress of his case as promised by him and that it was

only upon receipt of a notice from the execution court, that the applicant

came to know about the passing of exparte award. It is also urged in the

application that only after obtaining the copy of the award, the applicant

came to know about the delay having occasioned in the matter, and as

such, filed the instant application accompanied with the appeal against the

impugned award. It is being also urged in the application that the delay in

filing the appeal is required to be condoned as a substantial right of the

applicant to pay compensation to the claimant is involved on the ground

that the applicant allegedly violated the route permit of the offending

vehicle.

6. Objections to the application have been filed by non applicant 1 whereas,

other non applicants have chosen not to appear or else to file objections to

the application.

In the objections, it is being stated that the applicant has not approached

this Court with clean hands and that in fact that the applicant did appear

before the tribunal and had been represented by a counsel and also had

been aware about the passing of the award and despite that, applicant did

not make any serious efforts to file appeal, well within time and that the

appeal is filed in the year 2018, when the award have had been passed in

2014, without there being any plausible explanation in the application. It is

being further stated that the grounds raised in the application therein, are

vague and based on surmises and conjectures.

Heard learned counsel for the parties and perused the record.

7. It is established that the law of limitation has to be applied with all its rigor

prescribed by a statute and although Section 5 of the J & K Limitation Act

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

cases, however, 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.

The Apex Court in case titled as 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."

A reference to a judgment of the Apex Court reported in AIR 1998 SC

2276, titled as P.K Ramachadran vs. 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 rigor 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 bared by time. No costs."

8. Keeping in mind the provision of law (supra) and the principles laid down

by the Apex Court (supra) and reverting back to the application, the same

fundamentally is based on the ground that there has been negligence of the

counsel engaged by the applicant in defending the claim petition filed by

the Non Applicant 2 herein, and as such, the applicant on account of such

negligence of the counsel cannot be made to suffer.

Perusal of the record of the tribunal, however, would reveal and suggests

that the counsel engaged by the applicant before the tribunal have had

been appearing in the matter and contested the claim petition. It is

nowhere coming forth from the instant application as to whether the

applicant herein made any efforts or attempts to contact his counsel

engaged in the tribunal, as the negligence attributed to the counsel for the

applicant cannot be taken to be as gospel truth unless, the applicant would

have shown that he made any serious efforts to have some information

from the counsel contesting the case on his behalf before the tribunal and

that no such information was furnished to him by the counsel.

Seemingly, there is no plausible reason constituting sufficient cause

warranting condonation of delay in the application for filing the appeal

accompanying the application in hand and the application appears to have

been filed with an impression that in seeking condonation of delay

expression "sufficient cause" would receive a liberal construction in

favour of the applicant, however, as has been noticed in the preceding

paras, the explanation offered in the application by the applicant is cryptic

and casual and cannot by any sense of imagination said to be

sufficient/plausible or cogent. Furthermore, in so far as, the ground urged

in the application that the delay in filing the appeal is required to be

condoned as the applicant has substantial right involved in the matter

cannot be accepted in view of the fact that in filing of an appeal under the

provisions of Motor Vehicles Act against an award in law is aimed at or

providing a cheap and speedy remedy and justice by way of compensation

to a claimant. A justice-oriented approach thus, is 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

Apex Court. The said principle of sufficient cause, however, as noticed

above is missing in the instant application.

9. Viewed thus, the application is accordingly dismissed, as a consequence

whereof, the accompanying appeal shall also stand dismissed along

with connected application(s), if any.

(Javed Iqbal Wani) Judge

Jammu:

 17.05.2023
 Manan


                  Whether the order is speaking     :   Yes

                  Whether the order is reportable   :   Yes