Karnataka High Court
Kasturibai W/O Late Basawanappa vs Santosh B. Sharma And Anr on 4 January, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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NC: 2024:KHC-K:114-DB
MFA No.202507 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO.202507 OF 2019 (ECA)
BETWEEN:
KASTURIBAI W/O LATE BASAWANAPPA
AGE: 64 YRS, OCC: HOUSE HOLD
R/O: RIKKIN ALOOR
TQ: ALAND, DIST: KALABURAGI.
...APPELLANT
(BY SMT. SHARADA PATIL KULGERI, ADVOCATE)
AND:
1. SANTOSH B. SHARMA
Digitally signed by
AGE: 49 YRS,
SWETA KULKARNI
Location: HIGH
OCC: BUSINESS OWNER OF VEHICLE
COURT OF
KARNATAKA
NO.MH-04/AG.1615
R/O: H.NO. 204, AT SARAVALLI
P.O. BOISAR, TQ: PALGHAR
DIST: THANE - 401 404
(MAHARASHTRA STATE).
2. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.,
SANGAMESHWAR COLONY
BESIDE SBH NV BRANCH,
S.B. TEMPLE ROAD,
KALABURAGI - 585 103.
...RESPONDENTS
(BY SRI S.S.ASPALLI, ADVOCATE FOR R2;
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NC: 2024:KHC-K:114-DB
MFA No.202507 of 2019
V/O. DATED 16.06.2023 NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 30(1) OF ECA ACT,
PRAYING TO ALLOW THE ABOVE APPEAL CONDONE THE
DELAY AND CONSEQUENTLY TO FIX THE LIABILITY ON THE
RESPONDENT NO.2, PASSED BY THE
IST ADDL. SENIOR CIVIL JUDGE COMMISSIONER FOR
EMPLOYEE'S COMPENSATION AT KALABURAGI IN E.C.A.NO.
35/2015 DATED 01.08.2019, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL COMING ON FOR FURTHER ORDERS, THIS
DAY B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant, who has lost her only son in an accident
in the course of his employment with the first respondent, is
aggrieved by the judgment and award dated 01.08.2019 in
ECA No.35/2015 on the file of the I-Additional Senior Civil
Judge and Commissioner for Employee's Compensation,
Kalaburagi [for short, 'the Commissioner']. The Commissioner
has rejected the appellant's claim petition under the
Employees Compensation Act, 1923 [for short, 'the E.C. Act']
on the sole ground of delay observing that the claim petition
under the provisions of Section 10(1) of the E.C. Act had to
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be filed within a period of two years from the date of
accident. The Commissioner has also rejected the
appellant's application under Section 5 of the Limitation Act,
1963.
2. The appellant's case is that her son, Sri
Manjunath, was working as a driver with the first
respondent and that as of the date of the accident
[09.08.2004] he was driving the lorry bearing
Reg.No.M.H.04/AG-1615 in the course of his employment.
She has filed a claim petition under Section 166 of the Motor
Vehicles Act, 1988 [for short, 'the M.V. Act'] in MVC
No.612/2008 which is dismissed for non-prosecution on
08.11.2011, and the appellant has filed the present
application on 06.06.2015. The appellant has explained the
delay stating, amongst other, that she is uneducated and
from a rural background; that she is not acquainted with the
due procedure; and that she has gone by the advice that she
has received.
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3. Smt. Sharada Patil Kulageri, the learned counsel
for the appellant, and Sri S.S. Aspalli, the learned counsel
for the first respondent - Insurer, are heard for final disposal
of the appeal. Sri S.S. Aspalli submits that he would not
contest the proposition that an application under Section 5
of the Limitation Act could be filed offering bonafide and
sufficient cause to explain the delay if an application under
the E.C. Act could not be filed in time as contemplated
under Section 10 thereof, but he argues that in the present
case delay of over 9 years and 11 months is unjustified and
a sufficient cause is not shown.
4. Sri S.S. Aspalli submits that the appellant having
filed a claim petition under Section 166 of M.V. Act could
have pursued the same even if dismissed for default, instead
of filing the subsequent application under the E.C. Act and
that it was always open to the appellant to file an application
for restoration of such claim petition. Lastly, Sri S.S. Aspalli
submits that if inordinate delay of over 9 years 11 months is
condoned, without strong reasons, the Insurer could be
visited with great hardship inasmuch as it will have to pay
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interest at the rate of 12% per annum for the delayed period
incurring an additional liability though no fault could be
attributed to the Insurer. Smt. Sharada Patil, in rejoinder,
submits that the question of difficulty to the Insurer could
be moderated by this Court observing that the appellant will
not be entitled for interest for the period between the date of
the accident till such date as may be found appropriate by
this Court.
5. The appellant's cause to explain the delay is
examined in the backdrop of these submissions and the fact
that the Insurer cannot dispute that the appellant was aged
about 60 years when she lost her only son and that she
hails from rural community and is uneducated. It is not as
if the appellant has approached the Commissioner after 9
years 11 months for the first time; the undisputed fact is
that the claimant had filed claim petition under M.V. Act
and has prosecuted the same for a period of over three years
before it is dismissed for default. If after such dismissal, she
has filed the present application because of the advise she
has received, the same must necessarily be considered
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favorably given the object of the law, and this Court is of the
considered view that a hyper technical approach cannot be
taken. At this stage, this Court must also observe that the
Commissioner has rejected the appellant's application
without even considering whether the appellant has shown
sufficient cause to explain the delay. Therefore, the appeal
must be allowed in part and the appellant's application with
the Commissioner restored for re-consideration but on
terms. In the light of the afore, the following:
ORDER
(i) The appeal is allowed in part, and the
Commissioner's impugned judgment and
award dated 01.08.2019 in ECA No.35/2015
is set-aside.
(ii) The appellant's application is restored for re-
consideration on the condition that if
ultimately the appellant succeeds in the
application, she will not be entitled for any
interest for the period between the date of
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accident and the date of first appearance
before the Commissioner after this order.
(iii) The appellant and the Insurer, without
further notice, shall appear before the
Commissioner on 12.02.2024.
Sd/-
JUDGE
Sd/-
JUDGE
SWK
CT:VK
