Punjab-Haryana High Court
Hdfc Ergo General Insurance Co. ... vs Surjit Kaur And Others on 11 October, 2021
FAO-880-2021 -1-
Sr. No. 106
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM-7957-7958-CII-2021 in/and
FAO-880-2021
Date of decision: 11.10.2021
HDFC ERGO General Insurance Co. Ltd.
...Applicant/Appellant
Versus
Surjit Kaur and others
...Respondents
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Mr. Sanjeev Kodan, Advocate,
Present:
for the applicant-appellant.
***
ARUN MONGA, J. (ORAL)
Applicant-Insurance Company seeks to set aside the impugned
order dated 17.10.2017 passed by the learned MACT, Ludhiana, albeit only
to the extent of grant of penal interest in the event of delay in disbursement
of the awarded compensation.
2. There is a delay of 954 days in filing the appeal. Narrative of
reasons pleaded in paras 2-8 of the accompanied condonation application
under Section 5 of the Limitation Act, is as under: -
"2. That the impugned order was passed on 17.10.2017
passed by learned MACT, Ludhiana. In para No.24 of the
award, the learned MACT awarded a sum of Rs.54, 64, 500/- in
favour of claimants. The learned MACT, further observed that
the above said amount shall be paid within a period of 2 months
from today (i.e. 17.10.2017) along with interest @ 7% per
annum from the date of accident till its realization, failing
which the amount of compensation shall carry the interest @
9% per annum.
3. That thereafter the appellant company prepared
cheque/draft no.2873 dated 28.12.2017, an amount of
Rs.68,56,226/- in the name of Learned MACT, Ludhiana. The
said cheque/draft was not accepted by the learned MACT and
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returned to the appellant. Thereafter, the appellant prepared
four different cheques/drafts in favour of all the claimants.
Cheque No. Date Name Amount
5604 21.02.2018 Surjit Kaur Rs. 19,74,674/-
5605 21.02.2018 Jaswinder Rs. 16,45,780/-
Kaur
5606 21.02.2018 Jaspreet Rs.16,45,779/-
Singh
5607 21.02.2018 Mahinder Rs.13,16,886/-
Kaur
4. The said cheques/drafts were en-cashed by the claimants.
Thereafter, the claimants filed the execution for the penal
interest awarded by the learned MACT and the same is still
pending before the learned MACT, Ludhiana.
5. That the facts mentioned in above said para it is crystal
clear that the appellant company satisfied the award along with
7% interest in the month of February 2018 and the same has
been received by the claimants.
6. That now the claimants filed the execution for penal
interest which is against the law laid down by the Hon'ble High
court in case FAO No.4920 of 2018 titled as "New India
Insurance Company Limited Vs. Bibi Tajpuriya and Ors."
Decided on 07.08.2018. In the above said case, this Hon'ble
Court relied upon the judgment of the Hon'ble Apex Court in
case, "National Insurance Company Limited Vs. Keshav
Bahadur" reported as 2004 (ACJ) 648 and set aside the penal
interest imposed by the learned Tribunal.
7. That it is settled law that the learned MACT cannot
imposed the penal interest despite that the learned MACT
allowed the penal interest in present case. In the present
appeal, the appellant only challenge the penal interest. Due to
these reasons delay of 954 days has been occurred in filing the
appeal.
8. That the delay in filing the accompanied appeal is neither
intentional nor wilful but has occurred due to the reasons
explained above."
4. Perusal of the aforesaid would reveal that not only the application has
been filed in a mechanical manner, but even the mandate of law, which
envisages each day's delay has to be explained, is completely amiss in the
averments of the application.
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5. The explanation for seeking condonation is totally mechanical and
there seems to be no application of mind. No specific details have been
given as to why filing of appeal was pending and why it took 954 days to
take the decision, whereas, MACT had rendered its award way back on
17.10.2017 cautioning the Insurance Company that in case, it does not pay
the compensation within 2 months, then interest @ 9% shall be payable
instead of 7% and yet it is not stated when was the execution petition filed
against the Insurance Company and/or when was notice served therein
and/or appearance caused therein and/or reason of delay in preferring instant
appeal despite knowledge of the execution proceedings, other than reliance
on Supreme court judgment qua non entitlement of penal interest.
6. Not to forget, Insurance Company herein has the professional
expertise to handle litigation. Applicant is pan India company with complete
legal set up at its disposal, having both in house team of legal professionals
on its pay roll, as well as, out sourced team of worthy learned counsels on its
panel, and yet it should falter, is rather a matter to ponder for the Insurance
Company/appellant.
7. An appeal which has become time barred generates vested right
in favour of claimants, who have got a favourable order in their favour from
the Court below. It would, therefore, be improper to condone the delay on
whimsical grounds as resorted by the Applicant-Insurance Company herein.
8. Qua the issue in hand with regard to condonation of delay,
reference may be had to Apex Court judgment in Ajit Singh Thakur Singh
v. State of Gujarat, reported in AIR 1981 SC 733, wherein it is observed
thus-
".....it is true that a party is entitled to wait until the last day of
limitation for filing an appeal, but when it allows limitation to
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expire and pleads sufficient cause for not filing the appeal
earlier, the sufficient cause must establish that because of some
event or circumstance arising before limitation expired it was
not possible to file the appeal within time. No event or
circumstance arising after the expiry of limitation can
constitute such sufficient cause. There may be events or
circumstances subsequent to the expiry of limitation which may
further delay the filing of the appeal, but that the limitations has
been allowed to expire without the appeal being filed must be
traced to a cause arising within the period of limitation. In the
present case, there was no such cause, and the High Court
erred in condoning the delay."
9. Reference may also be had to Apex Court judgment in Ramlal
and others Vs. Rewa Coalfields Ltd. reported as 1962 AIR (SC) 361.
Relevant extract of the same is reproduced hereinbelow:
"7. In construing Section 5 it is relevant to bear in mind two
important considerations. The first consideration is that the
expiration of the period of limitation prescribed for making an
appeal gives rise to a right in favour of decree holder to treat
the decree as binding between the parties. In other words, when
the period of limitation prescribed has expired the decree
holder has obtained a benefit under the law of limitation to
treat the decree as beyond challenge and this legal right which
has accrued to the decree holder by lapse of time should not be
light heartedly disturbed. The other consideration which cannot
be ignored is that if sufficient cause for excusing delay is shown
discretion is given to the Court to condone delay and admit the
appeal. This discretion has been deliberately conferred on the
Court in order that judicial power and discretion in trial behalf
should be exercised to advance substantial justice".
10. The claimants herein are poor and unemployed, being widow of
deceased victim, his 2 minor children and his ailing mother. The victim died
in a road accident after being hit by an offending vehicle (Jeep Fortuner),
while he was walking alongside the road. Victim was the only bread winner
of the family. In the premise, on merits, possibility of enhancement of
compensation to the claimants cannot be ruled out either.
11. Be that as it may, since the application is being dismissed on
limitation, I would refrain from going into that aspect of the matter, it would
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be in the interest of justice and equity to simply dismiss the appeal on
limitation.
12. For the reasons stated hereinabove, this is not a fit case where
discretion to condone the delay ought not to be exercised.
13. Since the appeal is not maintainable on the ground of delay, no
ground to hear the main case on merits is made out. Pending application, if
any, shall also stand disposed of.
11.10.2021 (ARUN MONGA)
vandana JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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