Madras High Court
Tmt.T.Bemilaraj vs M.Kannan on 29 January, 2021
C.M.P.(MD).No.523 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.01.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.P(MD)No.523 of 2021
in C.M.A(MD).SR.No.41144 of 2020
1. Tmt.T.Bemilaraj
2. T.Oviya
3. T.Karthiraj
4. A.Janakiraman
Tmt.J.Deivajothi (Died)
... Petitioners/Petitioners
Vs.
1.M.Kannan
2.Branch Manager
National Insurance Company Ltd.,
Branch II 1272/1273Mettur Road,
Palamappa Complex,
Erode-638011.
3. Branch Manager,
United India Insurance Company Limited,
No.392A Tenkasi Road,
Rajapalayam,
Virudhunagar District. ....Respondents/Respondents
Cause title accepted vide Court order
dated 06.01.2021 made in CMP(MD).
No.7496 of 2020 in CMA(MD).SRNo.
41144 of 2020.
http://www.judis.nic.in
1/9
C.M.P.(MD).No.523 of 2021
Prayer in C.M.P(MD).No.523 of 2021: This petition is filed under
Section 173(1) of the Motor Vehicles Act, 1988, to condone the delay of
4321 days in filing the above appeal.
Prayer in C.M.A(MD).SR.No.41144 of 2020: This Civil Miscellaneous
Appeal is filed under Section 173 of the Motor Vehicles Act, 1988,
against the Judgment and Decree dated 15.11.2008 made in MCOP.No.
101 of 2006 on the file of the learned Motor Accident Claims
Tribunal/Subordinate Judge at Sivakasi.
For Petitioner : Mr.N.Tamilmani
ORDER
This Civil Miscellaneous Petition has been filed to condone the
delay of 4321 days in filing the above appeal.
2.The 1st petitioner is the wife, 2nd and 3rd minor petitioners are the
children, 4th and 5th petitioners are the parents of the deceased J.Thanan
Jeyaraj, who was an ex-serviceman from Indian Airforce. On 23.08.2005
at about 07.45 hours, the deceased was driven his two-wheeler bearing
registration number TN-67-E-1145 on the extreme left side from South
to North in the Sattur-Virudhunagar NH-47 main road. His two-wheeler
was followed by another two-wheeler bearing registration number
http://www.judis.nic.in
C.M.P.(MD).No.523 of 2021
TN-67-D-3712 driven by his friend. When the deceased was arrived near
Sukirarpatti Bridge Deviatory, the 1st respondent lorry bearing
Registration No.TN-33-AB-0901 came from the opposite direction ie.,
from North to south in a rash and negligent manner dashed against the
vehicle of the deceased and caused a head on collusion. In the result of
which, the deceased sustained severe injuries and died on the spot.
According to the petitioners, due to the rash and negligent driving of the
1st respondent lorry, the accident occurred. Hence, the
petitioners/claimants filed a claim petition claiming a compensation of
Rs.15,00,000/-. The Tribunal, after considering the pleadings, oral and
documentary evidence and arguments of the counsel for the claimants
and respondents and also appreciating the evidence on record, awarded a
sum of Rs.4,15,000/- with 7.5% interest as compensation. Aggrieved by
the Judgement and Decree over the liability, the respondents 2 and
3/insurance companies preferred appeal in CMA(MD).No.498 of 2013.
3. The learned counsel for the petitioners submitted that initially,
the petitioners are advised to file cross-objection in the said appeal and
later, they have advised to file a fresh and separate appeal challenging
the very same award passed in MCOP(MD).No.101 of 2006, on the file
http://www.judis.nic.in
C.M.P.(MD).No.523 of 2021
of Motor Accident Claims Tribunal (Subordinate Court), Sivakasi.
Thereafter, the petitioners have withdrawn the petition to condone the
delay in filing and paying the deficit Court fee in the cross-objection and
to file a fresh appeal, the petitioners had applied for the fresh certified
copies of the judgment and decree. In view of the above reasons, there
was a delay of 4321 days in filing the appeal and prays to allow the
petition.
4. Heard the learned counsel for the petitioners and also perused
the materials available on record.
5. 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-
http://www.judis.nic.in
C.M.P.(MD).No.523 of 2021
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.
(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
http://www.judis.nic.in
C.M.P.(MD).No.523 of 2021
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 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
http://www.judis.nic.in
C.M.P.(MD).No.523 of 2021
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."
6. Now coming to the present facts and circumstances of the case,
the petitioner has stated that the Tribunal has pronounced the order on
15.11.2008, thereafter, the respondents 2 and 3/insurance companies
preferred an appeal in CMA(MD).No.498 of 2013. But the petitioners are
advised to filed the cross-objection and later they have withdrawn the
petition to condone the delay in filing and paying the deficit Court fee in
CMP(MD).No.12266 of 2018. Thereafter, they have advised to file a
fresh appeal challenging the order of the Court below and for the same,
the petitioners have applied for the certified copies, which was ready on
13.09.2019. Due to the above reasons, there was a delay of 4321 days in
filing the appeal.
7. It is seen that no valid reason has been adduced for condoning
the delay of 4321 days in filing the above Civil Miscellaneous Appeal.
The delay is not minimal and it is a very long delay. The reasons stated
http://www.judis.nic.in
C.M.P.(MD).No.523 of 2021
for the delay are not convincing and acceptable. Therefore, this Court is
not inclined to condone the delay of 4321 days in filing the appeal.
8. Accordingly, this petition is dismissed. In view of the order
passed in CMP(MD)No.523 of 2021, the connected C.M.A.(MD)SR.No.
41144 of 2020 is rejected at the SR stage itself. No costs.
29.01.2021
Index : Yes/No
Internet : Yes/No
pkn
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
1. The Motor Accident Claims Tribunal
Subordinate Court,
Sivakasi.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
C.M.P.(MD).No.523 of 2021
J.NISHA BANU,J
pkn
C.M.P(MD)No.523 of 2021
in C.M.A(MD).SR.No.41144 of 2020
29.01.2021
http://www.judis.nic.in
