Tripura High Court

United India Insurance Company ... vs Sri Parimal Banik & Others on 25 August, 2023

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                 I.A. No.01/2023 in MAC.APP. No.40/2023
                          MAC.APP. No.40/2023

United India Insurance Company Limited
                                                  ......... Appellant/Applicant(s).
                                   VERSUS
Sri Parimal Banik & others
                                                             .........Respondent(s).

For Appellant/Applicant(s) : Ms. R. Purkayastha, Advocate.

For Respondent(s)                 : Mr. D.C. Roy, Advocate,
                                    Mr. B. Saha, Advocate.

   HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH

                                      Order
25/08/2023

I.A. No.01/2023 in MAC.APP. No.40/2023:

             Heard    Ms.    R.    Purkayastha,    learned    counsel   for   the

appellant/applicant, on the prayer for condonation of delay of 219 days in

preferring the instant memo of appeal.

The appeal is preferred against the award dated 30.06.2022 passed

in case No.T.S.(MAC) 01 of 2018 by learned Member, Motor Accident Claims

Tribunal (IST), Unakoti District, Kailashahar by which the learned Tribunal

has awarded compensation of Rs.8,78,836/- with interest @ 6% per annum

from the date of filing of the claim petition i.e. 15.01.2018 within two months,

failing which the O/P No.3 shall pay penal interest @ 9% per annum till it is

actually paid.

The O/P No.3 is the appellant-Insurance Company before this

Court.

Learned counsel for the appellant/applicant submits that there are

good grounds for the appellant to succeed. The statutory period for filing

appeal is 90 days from the date of judgment. The appeal ought to have been

filed by 30.09.2022 but it was filed on 06.05.2023. It is further submitted that

after receiving the copy of the impugned judgment on 01.08.2022 from the

engaged counsel before the learned Tribunal, the applicant completed the

formalities and sent the file to the Divisional Office, Agartala which in turn

after completing the procedure sent the same to the Regional Office at

Guwahati for opinion in the last part of August, 2022. The Regional Office

then sent the opinion for preferring an appeal on 27.09.2022. However,

unfortunately, due to transfer of the officer dealing with the legal matters in the

Divisional Office, Agartala and retirement of the Divisional Manager the

original file docket somehow unfortunately got misplaced. The new Officer

who took charge had no knowledge about the same. Fortunately the file was

located in the first half of March, 2023 and the petitioner could trace the

number of the case as one of the lists of outstanding liabilities. Thereafter,

request was made to the engaged counsel before the learned Tribunal to obtain

the certified copies of all the documents related to the case which was obtained

on 23.03.2023. These documents were placed before the present learned

counsel for the applicant to prefer an appeal. After going through the file, the

appeal was preferred on 06.05.2023 after making the necessary statutory

deposit. There was no intentional delay on the part of the appellant/applicant.

Learned counsel for the Appellant, relies upon a recent decision of the Apex

Court in Civil Appeal No.4628 of 2023 rendered on 24.07.2023 in the case of

Raheem Shah and another vrs. Govind Singh and others reported in 2023

SCC Online SC 910, in particular, paragraphs-5 and 6 thereof, in support of

her submission that in matters of condonation of delay the Court should adopt a

rational common sense pragmatic approach rather than a pedantic approach of

explaining every days delay. Therefore, delay may be condoned.

Learned counsel for the respondent No.1 has referred to the

contents of the objection petition and submitted that the applicant has failed to

explain each days delay. There are serious laches and negligence on the part of

the appellant which they have deliberately not mentioned. It is difficult to

appreciate as to why so much time was consumed in receiving the copy of the

judgment though the Divisional office of the appellant company is at a stone's

throw distance from the chamber of the learned counsel. Further delay has been

caused in sending the judgment to the Regional Office. The transfer or

retirement of an officer cannot be a ground for seeking condonation of delay.

There is no explanation why the Regional office took near about one month to

give an opinion for preferring an appeal. Even thereafter it took six months till

March, 2023 to trace out the number of the case whereas it could have been

obtained through e-Court services or internet. There are no dates or particulars

in support of the averments made by the appellant. As such, the appellant

which is a Nationalized Insurance Company cannot be excused of the serious

laches and negligence on its part in preferring the appeal within time.

Therefore, the application may be rejected as the claimant has got a valuable

right in his favour which should not be unsettled at the behest of the applicant

who is not diligent. Learned counsel for the respondent No.1 has relied upon a

decision of the Apex Court in the case of Postmaster General and others vrs.

Living Media India Limited and another reported in AIR 2012 SC 1506,

[paragraphs-12 and 13] : (2012) 3 SCC 563 in support of his contention.

Mr. D.C. Roy, learned counsel for the respondent No.2 does not

have any serious objection to the prayer for condonation of delay.

I have considered the submissions of learned counsel for the

parties and the explanation furnished by the applicant and also the objection

taken by the respondent No.1.

It appears that the major part of the delay, i.e. from end of

September, 2022 till March, 2023 is attributed to the loss of the file in the

Divisional Office at Agartala because of the transfer of the incumbent and

retirement of the Divisional Manager. The appellant is a company which could

know about the pending matter in March, 2023 when the list of outstanding

liabilities were being ascertained. Thereafter, prompt steps have been taken for

obtaining the certified copy of the documents and preferring the appeal before

this Court through the present counsel. The appellant is an Insurance Company

which has a hierarchy of official machinery who are supposed to attend the

legal matters with promptitude and due diligence. However, it appears that the

matter could not be pursued on account of the transfer of the incumbent and

retirement of the Divisional Manager at Agartala. The explanation on the part

of the Insurance Company, therefore, does not appear to be concocted or

incorrect. In the decision relied upon by the learned counsel for the respondent

No.1 also at paragraph-13 the Apex Court has taken note of the judgment

rendered in the case of Collector, Land Acquisition, Anantnag and Another

vrs. Mst. Katiji and others reported in (1987) 2 SCC 107 where while laying

down the principles in matters of condonation of delay, the Apex Court had

observed that the doctrine must be applied in a rational common sense

pragmatic manner and when substantial justice and technical considerations are

pitted against each other, cause of substantial justice deserves to be preferred

for the other side cannot claim to have vested right and injustice being done

because of non-deliberate delay. If there is a presumption that the delay has

occasioned deliberately or on account of culpable negligence or on account of

mala fides then the same should not be casually condoned. The decision relied

upon by the learned counsel for the appellant/applicant are also on the same

lines and are profitably extracted hereunder:

"5. This Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 has held as hereunder:

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A

litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal."

6. The above decision expressing the intention of justice oriented approach percolating down to all the courts was rendered nearly three decades ago but unfortunately the case on hand demonstrates the pervading insensitive approach, which apart from continuing the agony of the litigants concerned has also unnecessarily burdened the judicial hierarchy which after going through the entire process will have to set the clock back, at this distant point in time and prolong their agony. If only the court concerned had been sensitive to the justice oriented approach rather than the iron-cast technical approach, the litigation between the parties probably would have come to an end much earlier after decision on the merits of their rival contention. "

This Court, therefore, on consideration of the submissions of rival

parties is satisfied that the delay is not occasioned on account of any deliberate

act or culpable negligence or mala fides on the part of the appellant-company.

The appellant has furnished sufficient cause to explain the delay.

Therefore, prayer made in I.A. No.01 of 2023 is allowed.

I.A. No.01 of 2023 stands disposed of.

MAC.APP. No.40/2023:

Admit.

Call for the lower Court records in connection with T.S.(MAC)

No.01 of 2018 from the Court of learned Member, Motor Accident Claims

Tribunal (IST), Unakoti District, Kailashahar.

Office to prepare Paper Book after receipt of the LCRs.