Jharkhand High Court
Gulshan Bibi @ Gulshan Khatoon vs Shrimati Veena Pandey Wife Of Sri ... on 12 July, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 764 of 2017
----
1. Gulshan Bibi @ Gulshan Khatoon W/o Md. Ashik Mian
2. Md Hasin Minor S/o Md. Ashik Mian
3. Md Afzal Minor S/o Md Ashik Mian
4. Hasina Khatoon minor D/o Md Ashik Mian
5. Md Ashik Mian Son of Late Kamruddin
Appellants Nos.2, 3 and 4 are Minors, hence represented through
their father appellant No.5
All R/o Village Holamgara, P.O. Tapej, P.S. Sadar, Dist : Chatra
(Jharkhand).
... Appellants
-versus-
1. Shrimati Veena Pandey wife of Sri Vijay Kumar Pandey, resident of
Road No.2 Bajrang Bagan Telco, Citi Jamshedpur, PO & PS
Jamshedpur, Dist: Jamshedpur, State Jharkhand.
2. National Insurance Company Ltd., C/o Divisional Manager, National
Insurance Company Ltd., Ranchi-Patna Road, Hazaribagh, PO & PS
Hazaribagh, Dist- Hazaribagh.
... Respondents
WITH
M.A. No. 364 of 2019
----
National Insurance Co. Ltd C/o Divisional Manager, National Insurance
Co. Ltd Ranchi Patna Road, PO PS & District Hazaribag Through Asst.
Manager National Insurance Co. Ltd Kutchery Road, Ranchi P.S.
Kotwali, P.O. & District Ranchi.
... Appellant
-versus-
1. Gulshan Bibi @ Gulshan Khatoon wife of Md. Ashik Mian (Claimant
No.1)
2. Md Hasin son of Md. Ashik Mian (Claimant No.2)
3. Md Afjal son of Md Ashik Mian (Claimant No.3)
4. Hasina Khatoon daughter of Md Ashik Mian (Claimant No.4)
5. Md. Md. Ashik Mian Son of Late Kamruddin (Claimant No.5)
Claimant Nos.2 to 4 are Minors and are being represented through
their father respondent No.5 being natural guardian as their Next
friend.
All R/o Village Holamgara, P.S. Sadar, P.O. Tapej, District Chatra.
2
6. Veena Pandey wife of Vijay Kumar Pandey, Resident of Road No.2,
Bajrang Bagan TELCO, Citi (City) Jamshedpur, P.O. & P.S. TELCO,
District Jamshedpur (Singhbhum East)
... Respondents
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
----
For the Appellants : Mr. Vijay Kumar Sharma, Advocate
[in M.A. No. 764 of 2017]
Mr. Alok Lal, Advocate
[in M.A. No.364 of 2019]
For the Respondents: Mr. Alok Lal, Advocate
[in M.A. No.764 of 2017]
Mr. Vijay Kumar Sharma, Advocate
[in M.A. No.364 of 2019]
----
ORDER
RESERVED ON 07.07.2022 PRONOUNCED ON 12.07.2022
M.A. No.364 of 2019
This appeal has been listed today under the heading "For
Orders" for considering the petition filed under Section 5 of the Limitation Act
praying to condone the delay of 681 days.
2. The appellant Insurance Company has challenged the award
dated 12th day of June, 2017 passed by the Motor Accident Claim Tribunal-
cum-District Judge V, Chatra in Motor Accident Claim Case No.93 of 2014, by
filing this appeal under Section 173(1) of the Motor Vehicles Act, 1988.
3. The Office has reported that since the appeal was filed on
24.07.2019, there is a delay of 681 days in filing this appeal.
I.A. No. 6953 of 2019 in M.A. No.364 of 2019
4. The delay of 681 days in filing this appeal (M.A. No.364 of 2019)
is being sought to be condoned by filing this interlocutory application under
Section 5 of the Limitation Act.
5. Mr. Alok Lal, learned counsel appearing for the appellant submits
that the Insurance Company being a Government Company has to observe
several formalities. Once a judgment/award is passed, the same is to be
considered at different levels and then only it is decided whether an appeal
has to be filed or not. This process consumes some time. He submits that in
this case, movement of the file from different offices of the appellant consumed
some time, which resulted in delay in filing this appeal, thus, the same needs
to be condoned. He submits that the original certified copy, which was sent
earlier to the Office of the appellant, was misplaced as a result of which
another copy was obtained, which consumed further time in filing this appeal.
He prays that the delay be condoned. In support of his contention, he relies
upon the following judgments:-
I. (2009) 15 SCC 177 [State of J.K. & Others versus
Mohmad Maqbool Sofi & Others]
II. (2010) 14 SCC 419 [Indian Oil Corporation Ltd. &
Another versus Subrata Borah Chowlek etc.]
III. (2013) 11 SCC 341 [S. Ganesharaja (Dead) through
LRs. versus Narasamma (Dead) through LRs]
IV. (2017) 12 SCC 840 [K. Subbarayudu & Others versus
Special Duty Collector (Land Acquisition)]
V. (2021) 6 SCC 512 [Brahampal @ Sammay & Another
versus National Insurance Company]
VI. 2003 (1) JLJR 215 [Lakhan Chandra Paramanik
versus Bihar State Housing Board]
VII. 2014 AIR SCW 3084 [State of Assam & Others versus
Susrita Holdings Pvt. Ltd.]
6. Counsel appearing for the respondents opposes the prayer for
condoning the delay and submits that the grounds taken in the petition under
Section 5 of the Limitation Act is vague and should not be accepted. He
submits that the delay is of 681 days, i.e., approximately two years (less by 49
days), which is a very substantial period and the same needs higher degree of
explanation, which is missing in this interlocutory application.
7. Section 5 of the Limitation Act reads as follows:-
5. Extension of prescribed period in certain cases - Any appeal
or any application, other than an application under any of the
provisions of Order XXI of the Code of Civil Procedure, 1908,
may be admitted after the prescribed period, if the appellant or
the applicant satisfies the Court that he had sufficient cause for
not preferring the appeal or making the application within such
period.
8. Section 173 of the Motor Vehicles Act, 1988 also provides for
condoning delay in filing an appeal. It is necessary to quote the said provision
also, which reads as under: -
173. Appeals.- (1) Subject to the provisions of sub-section (2),
any person aggrieved by an award of a Claims Tribunal may,
within ninety days from the date of the award, prefer an appeal
to the High Court;
Provided that no appeal by the person who is required
to pay any amount in terms of such award shall be entertained
by the High Court, unless he has deposited with it twenty-five
thousand rupees or fifty per cent, of the amount so awarded,
whichever is less, in the manner directed by the High Court.
Provided further that the High Court may entertain the
appeal after the expiry of the said period of ninety days, if it is
satisfied that the appellant was prevented by sufficient cause
from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims
Tribunal if the amount in dispute in the appeal is less than ten
thousand rupees.
9. From the both the provisions, I find that "sufficient cause" has to
be shown for condoning the delay, whatever be the length of delay. What was
the "sufficient cause" should be pleaded in the petition filed by the appellant
praying to condone the delay and the same should be convincing. The period
of delay and the "sufficient cause" must match reasonably. In this case,
when I go through the petition filed under Section 5 of the Limitation Act, I find
that some very casual and vague statement have been made to explain the
delay. It is necessary to quote some of the relevant paragraphs of the said
petition for better appreciation:-
4) That the instant application the petitioner prays for
condoning the delay in filing of the instant appeal which has
been filed on 24.07.19 after a delay of about 681 days whereas
the limitation expired on 4.9.2017.
5) That the appellant states and submit Certified copy of the
Award obtained after the passing the Award was sent to the
office of appellant insurance Company was misplaced and it
could not be traced thereafter the counsel was instructed to
obtain another copy which was made available on 18.1.2018.
6) That on receipt of the certified copy of the impugned order
the counsel conducting the case of the petitioner gave his
opinion to the concerned Branch for filing of the appeal before
this Hon'ble Court on the grounds that the tribunal has not
framed any issue with regard to violation of conditions of
Policy and the tribunal has totally ignored the Exhibits X/3 &
X/4 and has erroneously held that insurer is solely liable to pay
compensation.
7) That the petitioner-company is under the administrative
control of the Regional Office and for filing of any appeal,
sanction from the competent authority is required as per the
procedural norms of the company.
8) That the petitioner states and submits that the entire file
relating to the records of the case were sent to the Regional
office which is the immediate controlling office under whose
jurisdiction the case was being conducted before this Hon'ble
Court.
9) That the Regional Office sent the files for obtaining legal
opinion from one of its Panel Counsel with regard to preferring
an appeal before this Hon'ble Court.
10) That the petitioner states and submits that after obtaining
opinion from it's counsel the Regional Office gave sanction for
filing the appeal before this Hon'ble Court and the same was
filed on 24.07.2019. The period of limitation for filing the appeal
expired on 4.9.2017 and as such there is a delay of about 681
days in filing the appeal.
11) That it is stated and submitted that the counsel during the
course of preparation of Memo of appeal found that the case
record favoured to him does not contain Demand Draft of
statutory amount has not been sent by the appellant; the
counsel requested the insurance Company to prepare and send
demand draft of Rs.25,000/- in favour of Registrar General
Jharkhand High Court to be deposit as statutory deposit as a
condition precedent to filing of appeal and also arrange to send
certified copy of judgment/ award which is required to be filed
along with the memorandum of appeal.
10. These are the only statements given to explain the delay. To
explain this delay of 681 days, only one date has been mentioned in this
petition, i.e., 18.01.2018, i.e. the date when the second certified copy was
obtained. The statements made in paragraphs 7, 8 and 9 are absolutely vague
as when the file was sent to whom and which authority made what noting and
when it was decided to file an appeal challenging the award has not even been
mentioned.
11. The Hon'ble Supreme Court in the case of Postmaster General
and Others versus Living Media India Limited and Another reported in
(2012) 3 SCC 563, was dealing with an application where there was a delay of
427 days in filing the Special Leave Petition. In the said case at paragraph 20,
the Hon'ble Supreme Court noted the dates, which were mentioned in that
application by the appellants to justify the delay in filing the appeal. The
Hon'ble Supreme Court considered all the judgments governing the issue and
also taking into consideration the list of dates of movement of the file,
dismissed the application filed for condoning the delay on the ground of huge
delay. The Hon'ble Supreme Court at paragraph 28 of the said judgment has
held that even the Government is bound by limitation. It has been further held
that the claim, on account of impersonal machinery and inherited bureaucratic
methodology of making notes cannot be accepted in these modern days of
technology. It is necessary to quote paragraph 28 of the said judgment, which
reads as under:-
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 bona fides, 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.
12. In the aforesaid case, which was before the Hon'ble Supreme
Court, even though some dates of movement of files were mentioned, the
Hon'ble Supreme Court held that the said explanation was not proper. In this
instant case, the delay is of 681 days and not even the dates have been
mentioned, thus, on the facts also the instant case cannot be placed in a better
footing than that of the case, which the Hon'ble Supreme Court was dealing
with.
13. The aforesaid judgment in the case of Post Master General
(supra) was heavily relied upon by the Hon'ble Supreme Court in the case of
State of U.P. Through Executive Engineer & Another versus Amar Nath
Yadav reported in (2014) 2 SCC 422, wherein the Hon'ble Supreme Court has
held as follows:-
"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 bona fide effort, there is no need to accept the usual
explanation that the file was kept pending for 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 the Government
Departments. The law shelters everyone under the same light
and should not be swirled for the benefit of a few."
14. The Hon'ble Supreme Court, thereafter held that the explanation,
which the department offered for delay is not a proper explanation save and
except mentioning of various dates. Delay in the aforesaid case, which the
Hon'ble Supreme Court was dealing with, was of 481 days, which is much less
than the delay caused in filing this instant appeal. Be it noted in this instant
case not even the dates are mentioned.
15. The aforesaid two judgments of the Hon'ble Supreme Court is
relied by this Court. Explanation of the delay in the instant case is absolutely
not satisfactory and no sufficient cause has been shown to condone the delay.
The fact that cannot be lost sight of is that the appellants have in-house legal
department, who is well aware that an appeal has to be filed within a
prescribed period. Condonation of delay is an exception and cannot be used
as benefit for the Government Departments including that of the appellants.
16. In view of what has been held above, I find that there is absence
of sufficient cause to condone the huge delay of 681 days. Thus, this
interlocutory application (I.A. No. 6953 of 2019) filed under Section 5 of the
Limitation Act is dismissed.
M.A. No. 364 of 2019
17. As a consequence of dismissal of limitation petition (I.A. No.6953
of 2019) filed under Section 5 of the Limitation Act, this appeal (M.A. No.364
of 2019) also stands dismissed as barred by time.
M.A. No.764 of 2017
18. This appeal is delinked from M.A. No.364 of 2019. Let this appeal
(M.A. No.764 of 2017) be listed under the appropriate heading.
(Ananda Sen, J.)
Kumar/Cp-02
