Madras High Court
S.Umarani vs N.Sekar on 26 February, 2021
C.M.P. (MD) No.6467 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.02.2021
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.P. No.6467 of 2020
and
CMA.No.SR48235 of 2020
S.Umarani : Petitioner/Appellant
Vs.
1.N.Sekar
2.Shriram General Insurance Company Ltd.,
Through its Divisional Manager
Issue Office: 10003
E-8, Riico Industrial Area Sita Pura
Jaipur, Rajasthan 302 022
Phone No.180030030000 :Respondents/Respondents
PRAYER in C.M.P.No.6467 of 2020: The Civil Miscellaneous Petition
has been filed under Section 5 of Limitation Act, to condone the delay of
589 days in filing the appeal against the Decree and Judgment dated
24.10.2018 passed in MCOP.No.1001 of 2015 in the common judgment
made in MCOP.Nos. 1001 of 2015, 1002 of 2015 and 1313 of 2015 on
the file of the Motor Accident Claims Tribunal (VI Additional District
Court), Madurai, decide the appeal on merits.
1/8
http://www.judis.nic.in
C.M.P. (MD) No.6467 of 2020
PRAYER in C.M.A.SR.No.48235 of 2020: The Civil Miscellaneous
Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988
to pass an order by enhancing the compensation amount to the tune of
Rs.6,00,000/- (Rupees six lakhs only) in addition to interest at 7.5% p.a.
from the date of claim petition till date of realization ie. By modifying
the Decree and Judgment dated 24.10.2018 for enhancement of
compensation passed in MCOP.No.1001 of 2015 in the common
judgment made in MCOP.Nos. 1001 of 2015, 1002 of 2015 and 1313 of
2015 on the file of the Motor Accident Claims Tribunal (VI Additional
District Court), Madurai.
For Petitioner : Mr.C.Karthik
For R2 : Mr.V.Sakthivel
ORDER
This Civil Miscellaneous Petition has been filed to condone the
delay of 589 days in filing the appeal against the Decree and Judgment
dated 24.10.2018 passed in MCOP.No.1001 of 2015 in the common
judgment made in MCOP.Nos. 1001 of 2015, 1002 of 2015 and 1313 of
2015 on the file of the Motor Accident Claims Tribunal (VI Additional
District Court), Madurai.
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C.M.P. (MD) No.6467 of 2020
2.The learned counsel for the petitioner would submit that due to
continuous treatment, the petitioner was not able to contact the lower
court counsel to apply and get the Decree and Judgment copies dated
24.10.2018 made in MCOP.No.1001 of 2015. Thereafter, the lower
Court counsel has sent the certified copies of the Decree and Judgment,
from that only, the petitioner came to understand that the copies were
delivered. After getting those certified copies, due to petitioner's illness
and due to lock down of COVID-19 Pandemic, she was not able to
arrange to file an appeal against the award dated 24.10.2018. Due to the
above reason, there has been a delay of 589 days in filing the above
appeal.
3.Per contra, the learned counsel for the second respondent
would submit that the entire award amount has been deposited by the
Insurance Company as early as in the year 2019 itself and the same was
also withdrawn by the petitioner/claimant.
(i)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
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C.M.P. (MD) No.6467 of 2020
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.
(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.
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C.M.P. (MD) No.6467 of 2020
(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
acceptable latitude.
16. To the aforesaid principles we may add some
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C.M.P. (MD) No.6467 of 2020
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."
4.Now coming to the present facts and circumstances of the case,
the petitioner has stated in a routine manner that due to continuous
treatment and lock down of COVID-19 pandemic, she could not able to
file an appeal within the stipulated time. Per contra, the learned counsel
for the second respondent would submit that the Insurance Company had
deposited the entire award amount in the year 2019 itself and the
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C.M.P. (MD) No.6467 of 2020
petitioner had also withdrawn the entire award amount. Now, the
petitioner has come forward with the present petition to condone the
delay of 589 days in filing the above appeal. The delay is not minimal
and it is a very long delay. The reasons stated for the delay are not
acceptable reasons to condone the delay of 587 days in filing the above
appeal. Relying on the principles enumerated in the above Judgment, I
am not inclined to condone the delay. Accordingly, this Civil
Miscellaneous Petition is dismissed. No costs. Consequently, C.M.A.
(MD)SR.No.48235 of 2020 is rejected, at the S.R stage itself.
26.02.2021
Index : Yes/No
Internet : Yes/No
msa
Note: In view of the present lock down owing to 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
The Motor Accident Claims Tribunal
(VI Additional District Court), Madurai,
http://www.judis.nic.in
C.M.P. (MD) No.6467 of 2020
J.NISHA BANU,J
msa
C.M.P. No.6467 of 2020
and
CMA.No.SR48235 of 2020
26.02.2021
http://www.judis.nic.in
