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CA/232/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 232 of 2010
In
FIRST
APPEAL (STAMP NUMBER) No. 457 of 2005
with
CIVIL
APPLICATION (STAMP NUMBER) NO. 1733 OF 2005
=========================================================
GSRTC
- Petitioner(s)
Versus
RAMKISHAN
BISHAMBHAR DUBEY & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MITUL K SHELAT for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 18/01/2010
ORAL
ORDER
Heard
learned Advocate Mr. Darji for learned Advocate Mr. Mitul K.Shelat
for applicant GSRTC.
This
application is filed by applicant with a prayer to condone delay in
filing first appeal in respect to an award passed by claims
tribunal, Gandhidham-Kachchh in claim petition no. 1573 of 1999
dated 5th October, 2004. Claim petition was filed by
claimants claiming Rs.4,00,000.00 for death of deceased Sharad
Ramkishan Dubey caused in the vehicular accident dated 4.11.1993.
Applicant NO.1 is father of said deceased and applicant no.2 is
mother of deceased. Opponent NO.1 is driver of ST Bus bearing
registration No. GJ.1.Z.2547 involved in accident. Opponent NO.2 is
ST Corporation, an owner of bus involved in accident. Deceased
Sharad was driving auto rickshaw No. GTY-9103 at a moderate speed
and on the correct side of the road at about 2350 hours on
4.11.1993. When deceased reached near Fun and Food Restaurant on
Highway leading from Gandhidham to Adipur, at that time, opponent
No.1 was coming from opposite direction driving ST Bus No.
GJ.1.Z.2547 at an excessive speed and was driving said bus rashly
and negligently so as to endanger human life. It was also alleged by
claimants before claims tribunal that due to rash and negligent
driving on the part of the opponent no.1, ST Bus dashed with auto
rickshaw and ran over auto rickshaw and crushed auto rickshaw. That
due to said vehicular accident, deceased Sharad Dubey and other
passengers traveling in said auto rickshaw had sustained serious
bodily injuries and were removed to hospital. Deceased Sharad
Ramkishan Dubey ultimately succumbed to injuries sustained by him in
the vehicular accident. It was case of claimants before claims
tribunal that deceased Sharad was aged about 22 years on date of
accident earning Rs.2,500.00 per month. Therefore, said claim
petition was filed by claimants claiming compensation of
Rs.9,30,000.00 but restricted their claim to Rs.4,00,000.00.
Before
claims tribunal, ST Corporation filed written statement at Exh. 25
and denied averments made by claimants in their claim petition.
Occurrence of accident, date of accident, place of accident and time
of accident were denied. Involvement of ST Bus was also denied by
opponents. It was denied that in said vehicular accident, deceased
Sharad sustained serious bodily injuries and ultimately succumbed to
injuries sustained by him. Averments as regards age and income of
deceased on the date of accident were denied. It was contended that
in fact, accident occurred due to sheer negligence on the part of
deceased and, therefore, claimants are not entitled to any
compensation from opponents. It was also contended that ST Bus was
passing on road at a moderate speed and on correct side of road but
all of sudden, deceased came on road with his auto rickshaw rashly
and negligently and, therefore, accident could not be avoided and
thus accident was a result of sheer negligence on the part of
deceased.
Claims
tribunal framed issues at Exh.23. Claimants produced copy of
panchanama at Exh. 50, copy of FIR at Exh. 51, copy of PM Report at
Exh. 49, copy of charge sheet at Exh. 52, copy of receipt issued by
Tolani Foundation, Gandhidham Polytechnic at Exh. 53. Applicant No.1
Ramkishan Bishambhar Dubey filed his affidavit of evidence at Exh.
41. He was cross examined by advocate for present appellants before
claims tribunal. On behalf of opponents, witness Janak Dhanjibhai
Thacker is examined at Exh. 57. Thereafter, written arguments on
behalf of applicants were submitted before claims tribunal at Exh.
60 and written arguments on behalf of opponents were submitted at
Exh. 59. Claims tribunal has considered question of negligence
while considering evidence on record produced by both parties. FIR
was lodged against opponent no.1 ST Bus Driver. After police
investigation, charge sheet was also served to ST Bus Driver,
therefore, claims tribunal has come to conclusion that accident
occurred due to sheer negligence of ST Bus Driver. Claims tribunal
has also considered one fact that admittedly, vehicular accident
occurred near Fun & Food Restaurant and, therefore, principle of
res ipsa loquitor is applied. Claims tribunal has observed that when
heavy vehicles are passing through city area, they are supposed
toslow down the speed of vehicle. After perusing panchanama, claims
tribunal observed that it appears that the rickshaw was crushed
under ST Bus and, therefore, speed of ST Bus can be estimated. If
the bus was driven at moderate speed, then in the accident, the auto
rickshaw would not have beencrushed, therefore, it apepars that ST
Bus was passing through city area at very high speed and, therefore,
accident occurred due to sheer negligence on the part of ST Driver
opponent no.1. Therefore, considering these findings given by claims
tribunal supported by evidence on record, contention raised by
learned advocate for appellant cannot be accepted that the question
of negligence has been decided erroneously by claims tribunal.
Another contention raised by appellant is about rick shaw driver not
having valid licence. That contention was not raised by appellant
before claims tribunal. Therefore, it being contention raised before
this court for the first time by appellant, cannot be entertained by
this court in light of recent decision of apex court reported in
2010 AIR SCW page 165, para 17, 18 and 20. There is no contention
raised by learned advocate for appellant about quantum of
compensation worked out by claims tribunal, therefore, according to
my opinion, looking to age of deceased 22 years and income which has
been assessed by claims tribunal at Rs.1500.00, after deducting
1/3rd therefrom, it comes to Rs.1000.00 dependency and
multiplier of 15 rightly applied by claims tribunal and amount of
Rs.20,000.00 is also rightly awarded by claims tribunal towards
convention. For that, claims tribunal has not committed any error.
Amount of compensation worked out by claims tribunal is just, proper
and reasonable which cannot be considered tobe on higher side. In
light of this reasoning given by claims tribunal, as no contention
is raised by appellant before claims tribunal in respect to fact
that deceased was not having valid licence, contentions raised by
learned advocate for appellant before this court cannot be accepted.
However, it is necessary to note that award was passed by claims
tribunal on 5th October, 2004 and First Appeal (Stamp
Number) No. 457 of 2005 was filed but not moved or circulated by
appellant corporation for about more than four years and it remained
pending as office objection raised was not removed by appellant for
such a long period. Therefore, considering all these aspects, delay
occurred in filing of an appeal cannot be condoned. In civil
application for condonation of delay, applicant has not explained by
appellant, why this delay has occurred in filing of an appeal. No
sufficient cause is shown by applicant for delay in filing of an
appeal, to satisfaction of this court. There is no affidavit of any
authorized officer in present application. Even advocate for
appellant has also not signed application and, therefore, in light
of this lethargic approach made by appellant present applicant and
also since no exact days of delay has been pointed out by applicant
in this application, merely mentioned that delay is caused in filing
of appeal on administrative procedure involved in processing
decision regarding filing of appeal without any further details or
affidavit, such application cannot be entertained.
This
aspect has been considered by Jammu & Kashmir High Court in case
of Oriental Insurance Co. Ltd. Versus S.D.Sahare and others, 2008
ACJ 1327. Relevant Head Note is reproduced as under:
Motor
Vehicles Act, 1988, section 173 (1), second Proviso- Appeal
Condonation of delay sufficient cause delay of 408 days in
filing appeals Insurance company seeks condonation of delay on
the ground that certified copy of order was supplied late and the
file when sent to Regional Office for legal opinion was misplaced
Insurance company did not place any material on record on the basis
whereof it may be said that it had all along been aware that it had
to file the appeals within a prescribed period of limitation and it
had taken requisite steps toe xpedite the reconstruction of records
which are stated to have been lost in transit and despite taking all
steps it had been disabled because of some reasons to file the
appeal within limitation Whether there is sufficient cause to
condone the delay in filing appeals Held:No; appeals dismissed.
This
aspect has also been examined by Delhi High Court in VK Thukral &
Others v. Lalit and others, reported in 2006 ACJ 2440. Relevant head
note is reproduced as under:
Motor
Vehicles Act, 1988, section 173 Appeal Condonation of delay
Sufficient cause Delay of 416 days in filing appeal by owner
of vehicle Owner stated that he was proceeded against ex parte
as his counsel stopped appearance and he came to know of the award
when he received notice of execution. – He engaged another counsel
who filed objectionj in execution proceedings which were dismissed
and he was advised to file an appeal Owner took more than 3
months to applied for a copy of award and no cause has been shown
why the appeal was not promptly filed after dismissal of objection
Whether the delay in filing appeal is condonable Held: no.
Recently,
apex court has also examined question of delay of 2381 days in
filing of an appeal, in case of Katari Suryanarayana & Ors. v.
Koppisetti Subbarao & Ors., reported in 2009(3) GLR page 2637.
Application for bringing legal heirs of original plaintiffs on
record was filed after long delay of 2381 days. Parties to suit were
neighbors and appellants would have known about death of two
plaintiffs. Court found that it is difficult to conceive that
petitioners were not in touch with their Advocates from 1999 to
December, 2006. In such circumstances, order of High Court refusing
to condone delay is uphepd by apex court in aforesaid decision.
Relevant observations made by apex court in para 12 of said decision
are quoted as under:
12. It
is not in dispute that the appellants were neighbours. They were
co-sharers. The respective dates of death of the respondent Nos.2
and 3, thus, were known to them. It is difficult to conceive that
the petitioners were not in touch wi8th their learned Advocates from
1999 to December, 2006. If not every week, they were expected to
contact their lawyers once in a year. Ignorance of legal consequence
without something more would, in our opinion, be not sufficient to
condone such a huge delay. Appellants are literates. They have been
fighting their cases for along time.The High Court in its impugned
judgment has categorically arrived at a finding that no sufficient
cause has been shown for the purpose of condonation of delay in
bringing on record the names of the heirs or legal representatives
of the deceased respondent No. 2 and 3.
Therefore,
considering aforesaid decisions in light of facts of present case,
there is no merits in appeal and no sufficient cause is shown by
applicant for condoning delay in filing of appeal and, therefore,
application for condonation of delay is required to be dismissed.
Object of condonation of delay is that the party may not be deprived
of his right to get matter decided on merits. Here, in case before
hand, while considering an application for condonation of delay,
this court has also considered award made by claims tribunal and
merits of matter and this court is of view that no useful purpose is
going to be served even if delay in filing of an appeal is condoned
because there is no substance in appeal and, therefore, since merits
of matter has also been examined, it cannot be said that refusal to
condone delay would deprive appellant of his right to get matter
decided on merits.
For
reasons recorded above, this application for condonation of delay is
dismissed. Consequently, appeal filed by appellant also stands
dismissed.
Civil
Application for stay filed by appellant also stands dismissed
accordingly.
(H.K.
Rathod,J.)
Vyas
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