Madras High Court
Saraswathi vs Sekar on 8 February, 2021
C.M.P.(MD).No.6798 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.02.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.P(MD)No.6798 of 2020
in
C.M.A(MD).SR.No.9071 of 2018
1. Saraswathi
2. Minor.Shajana
3. Minor.Dhanuskumar
4. Parvathy
(Minor appellants rep. by its
guardian and next friend
1st appellant herein)
... Petitioners/Appellants
Vs.
1. Sekar
2. The Reliance General Insurance Co. Ltd.,
Rep. by its Branch Manager,
Sree Lakshmi Complex,
1st floor, Bharathi Street,
Omalur Main Road, Swarnapuri,
Salem-636 004.
....Respondents/Respondents
Prayer in C.M.P(MD).No.6798 of 2020: This petition is filed under
Order IV Rule 9(4) of A.S.Rules, to condone the delay of 712 days in
representing the above Civil Miscellaneous Appeal in C.M.A(MD)
SR.No.9071 of 2018.
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C.M.P.(MD).No.6798 of 2020
Prayer in C.M.A(MD).SR.No.9071 of 2018: This Civil Miscellaneous
Appeal is filed under Section 173 of the Motor Vehicles Act, 1988,
pleased to allow this appeal, and enhance the award amount in
MCOP.No.966 of 2013 dated 11.01.2016 on the file of the Motor
Accident Claims Tribunal/1st Additional District Court, Tirunelveli.
For Petitioners : Mr.T.Selvakumaran
For Respondents : Mr.V.Sakthivel for R2
ORDER
This Civil Miscellaneous Petition has been filed to condone the
delay of 712 days in representing the above appeal.
2. Learned counsel for the petitioners/claimants would submit that
the Tribunal passed the award on 11.01.2016 and after receiving a
certified copy of the order from the Tribunal on 04.10.2017, as per the
advise of the petitioners/claimants' counsel, they preferred an appeal and
represented the matter on 07.12.2020. Hence, the delay is neither wilful
nor wanton and would pray to condone the delay of 712 days in filing the
above appeal.
3. Heard the learned counsel for the petitioner as well as the
respondents and also perused the materials available on record.
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C.M.P.(MD).No.6798 of 2020
4. In Esha Bhattacharjee v. Managing Committee of
Raghunathpur Nafar Academy & others, [2013 (5) CTC 547 (SC) :
2013 (5) LW 20], it was observed by the Supreme Court that there
should be a liberal, pragmatic, justice oriented, non-pedantic approach
while dealing with an Application for condonation of delay. The
principles elucidated at paras 15 and 16 of the said judgment, are
usefully extracted as follows:
"15. From the aforesaid authorities the principles that
can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an
application for condonation of delay, for the Courts are not
supposed to legalise injustice but are obliged to remove
injustice.
(ii) The terms sufficient cause should be understood in
their proper spirit, philosophy and purpose regard being had
to the fact that these terms are basically elastic and are to be
applied in proper perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal
the technical considerations should not be given undue and
uncalled for emphasis.
(iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of the
Counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
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C.M.P.(MD).No.6798 of 2020
(vi) It is to be kept in mind that adherence to strict
proof should not affect public justice and cause public
mischief because the Courts are required to be vigilant so
that in the ultimate eventuate there is no real failure of
justice.
(vii) The concept of liberal approach has to en capsule
the conception of reasonableness and it cannot be allowed a
totally unfettered free play.
(viii) There is a distinction between inordinate delay
and a delay of short duration or few days, for to the former
doctrine of prejudice is attracted whereas to the latter it may
not be attracted. That apart, the first one warrants strict
approach whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant factors to
be taken into consideration. It is so as the fundamental
principle is that the Courts are required to weigh the scale of
balance of justice in respect of both parties and the said
principle cannot be given a total go by in the name of liberal
approach.
(x) If the explanation offered is concocted or the
grounds urged in the application are fanciful, the Courts
should be vigilant not to expose the other side unnecessarily
to face such a litigation.
(xi) It is to be borne in mind that no one gets away
with fraud, misrepresentation or interpolation by taking
recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully
scrutinized and the approach should be based on the
paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity
representing a collective cause should be given some
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C.M.P.(MD).No.6798 of 2020
acceptable latitude.
16. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario. They are:
(a) An Application for condonation of delay should be
drafted with careful concern and not in a half hazard manner
harbouring the notion that the Courts are required to
condone delay on the bedrock of the principle that
adjudication of a lis on merits is seminal to justice
dispensation system.
(b) An application for condonation of delay should
not be dealt with in a routine manner on the base of
individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down
regard being had to the concept of judicial discretion, yet a
conscious effort for achieving consistency and collegiality of
the adjudicatory system should be made as that is the
ultimate institutional motto.
(d) The increasing tendency to perceive delay as a
non-serious matter and, hence, lackadaisical propensity can
be exhibited in a non-challan manner requires to be curbed,
of course, within legal parameters."
5. Now coming to the present facts and circumstances of the case,
the appeal has been filed by the appellants seeking enhancement of the
award amount passed in M.C.O.P.No.966 of 2013 on the file of the
Motor Accident Claims Tribunal/1st Additional District Court,
Tirunelveli. The award was passed on 11.01.2016 by the Tribunal and
the 2nd respondent/Insurance company has also honoured the award and
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C.M.P.(MD).No.6798 of 2020
paid the amount as early as on 13.04.2016. Further, after a lapse of two
years from the date of the award, the petitioners/claimants had filed this
petition to condone the delay in representing the appeal. In my
considered opinion, there is no sufficient cause and no convincing and
acceptable reasons have been adduced by the petitioners/claimants for
condoning such a huge delay and therefore, this Court is not inclined to
condone the delay of 712 days in representing the appeal.
6. Accordingly, this Civil Miscellaneous Petition is dismissed. In
view of the order passed in CMP(MD)No.6798 of 2020, the connected
C.M.A.(MD)SR.No.9071 of 2018 is rejected at the SR stage itself. No
costs.
08.02.2021
Index : Yes/No
Internet : Yes/No
pkn
Note: In view of the present lock down owing to
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C.M.P.(MD).No.6798 of 2020
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
To
1. Motor Accident Claims Tribunal/1st Additional District Court,
Tirunelveli.
J.NISHA BANU,J
pkn
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C.M.P.(MD).No.6798 of 2020
C.M.P(MD)No.6798 of 2020
in C.M.A(MD).SR.No.9071 of 2018
08.02.2021
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