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CA/9075/2007 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 9075 of 2007
In
FIRST
APPEAL (STAMP NUMBER) No. 2317 of 2007
=========================================================
NATIONAL
INSURANCE CO. LTD. - Petitioner(s)
Versus
JESANGBHAI
PARBATSINH RAJ & 5 - Respondent(s)
=========================================================
Appearance
:
MR
MEHUL SHARAD SHAH for
Petitioner(s) : 1,
None for Respondent(s) : 1,
RULE SERVED for
Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/09/2008
ORAL
ORDER
Heard
learned Advocate Mr. Mehul Sharad Shah for the applicant Insurance
Company.
By
filing present application, the applicant is praying for condoning
delay of 536 days caused in filing of an appeal. Learned Advocate
Mr. Shah submitted that the MACT at Nadiad delivered impugned
judgment and award on 1st September, 2005. Learned
Advocate for the insurance company had applied for certified copy of
the impugned award on 1st September, 2005 and the same
was prepared on 21st Sept. 2005. Thereafter, Ms. Pratima
Pandya advocate for the insurance company had sent copy of judgment
and award along with her opinion by letter dated 24.9.2005 to the
Divisional Office at Nadiad which was received by Divisional Office
on 28th September, 2005 and, thereafter, he submitted
that because of not having information regarding licence of deceased
driver provided by the claimants, three claims petitions were
arising out of the same accident and during the course of payment of
last judgment and award in MACP NO. 32/2005, investigation was
handed over to GEE BEE Investigators by the applicant. As per report
of the investigator dated 22.5.07, insured driver who was driving
the vehicle was not having valid driving licence. Therefore, in
view of decision of the apex court reported in 2006(4) SCC 250,
insurance company is not liable to pay the compensation. Thereafter,
divisional office Anand sought opinion of regional office Baroda for
preferring an appeal by letter dated 23.5.07 and thereafter
regional office Baroda by letter dated 30.5.07 requested advocate at
Ahmedabad to give opinion to prefer an appeal and as per advice in
view of recent decision of apex court reported in 2004 ACJ 1 and
2006(4) SCC 250 and AIR 2004 SC 2767, appeal could be filed and
thereafter by letter dated 5.11.2007, copy of an application for
stay and delay were sent to regional office by advocate and appeal
was filed on 11.6.2007 and, therefore, there is delay of 53 days in
filing of an appeal.
In
First Appeal (Stamp Number) 2317 of 2007, the appellant is
challenging the award made by the claims tribunal Kheda at Nadiad in
MACP No. 37 of 2005 Exh. 16 wherein the claims tribunal has awarded
compensation of Rs.2 lacs under section 163A of the MV Act, 1988 by
award dated 1st September, 2005. Learned Advocate Mr.
Shah submitted that the claims tribunal was of the view that the
claimants are entitled to get the amount of Rs.3,93,500.00 towards
compensation but by purshis Exh. 12 filed by the claimants, claim
has been reduced to Rs.2 lacs only considering the risk of the
vehicle in question is covering Rs 2 lacs only and, therefore,
award has been made accordingly by the claims tribunal.
Claims
tribunal has decided application under sec. 163A of the MV Act,1988.
Out of three appeals, initial first appeal from the group has been
admitted by this court wherein there was no delay and in another
first appeal of the same group, there was delay of 111 days in
filing of the appeal and, therefore, according to my opinion, when
the first appeal wherein there was no delay was admitted by this
court, why on that occasion, decision was not taken to file present
appeal and for that, no explanation has been given by the applicant
insurance company. In First Appeal (Stamp Number) No. 2318 of 2007,
there was delay of 111 days and on that occasion also, why decision
has not been taken by the insurance company to challenge award by
filing appeal, that has also not been explained by the applicant
insurance company in this application.
Looking
to the facts emerging from the record, it is clear that there is
inordinate delay and inaction on the part of the applicant which is
not satisfactorily explained by the applicant before this court.
Therefore, according to my opinion, delay of 536 days has not been
explained by the insurance company beyond 28th September,
2005 upto filing of first appeal i.e. 11.6.2007, almost about one
year and nine months. Such delay is culpable and cannot be condoned
without satisfactory explanation from the insurance company.
In
an identical case of V.K. Thukral and Others v. Lalit and
Others reported
in 2006 ACJ 2440, owner has filed an
application for condonation of 416 days delay in preferring of an
appeal. His condonation application has been considered by the Apex
Court and relevant observations are made in Para 7 to 9 which are
quoted as under :
?S7. Learned
counsel for the appellants, relied upon Naubat Ram Sharma v.
Additional District Judge II, Moradabad, AIR 1987 SC 1352, to urge
that counsel’s fault should not visit the client with penal
counsequences. Learned counsel also relied upon Collector, Land
Acquisition, Anantnag v. Katiji, AIR 1987 SC 1353, to urge that
sufficient cause should be construed liberally. Reliance was also
placed on the decisions in Chhabi Kulavi v. Ganesh Chandra Mondal, JT
2001 (1) SC 267; State of Bihar v. Nilamani Jha, JT 2000 (Supp 1) SC
209; B.T. Rai v. Ramanna Gowda, JT 2000 (Supp 1) SC 211 and Rafiq v.
Munshilal, AIR 1981 SC 1400, to urge that counsel’s inaction should
not result in the litigant suffering.
8. It
is true that in an adversarial litigation, clients repose faith in
their advocate and having paid the fee and given requisite
instructions to their lawyer, party would be fully justified in being
confident that his lawyer would discharge his professional
obligations. Therefore, where it is brought on record that a party
has done everything in its power to effectively participate in a
proceedings, courts should be liberal in construing sufficient cause
and should lean in favour of such party. A litigant does not stand to
benefit by lodging appeals at a belated stage. Whenever substantial
justice and technical consideration are opposed to each other, cause
of substantial justice has to be preferred. Justice oriented approach
has to be taken by a Court. However, this does not mean that a
litigant has a free licence to approach the court at its will.
9. At
some stage of the judicial proceedings, where a litigant finds that
his lawyer is not rendering the requisite professional services, it
becomes the duty of the litigant to become vigilant.?S
Similarly,
in case of Oriental India Insurance Company Limited v. S.D.
Sahare and Others reported in 2008 ACJ 1327 by
Jammu and Kashmir High Court, where, High Court has
considered the same. The relevant Para 14 to 20 are, therefore,
quoted as under :
?S14. Expiry
of the period of limitation prescribed for filing appeal in a
contested matter, particularly in those cases where claims are
allowed under the Motor Vehicles Act, in favour of the injured or
those who are left behind to suffer because of the death of their
breadwinner, vests a valuable right in the claimant which cannot be
taken away on mere ipsi dixit
of the party losing the litigation. Strong reasons are,
therefore, required to be spelled out by such appellant seeking
condonation of delay in filing the appeal. It is further required to
indicate the steps taken by it to ensure filing of appeal within the
prescribed time and the circumstances which had prevented it from
filing the appeal within the prescribed period of limitation.
15. The
ground urged by the insurance company to seek condonation of delay
does not indicate its awareness that the appeals had to be filed
within the prescribed period of limitation and about the efforts and
steps taken by it to ensure that no delay was caused in filing the
appeals within the prescribed period of limitation as also the
factors which despite its having taken steps to file appeal within
the prescribed period of limitation had disabled it to file the
appeal.
16. The
insurance company has not placed any material on record either, on
the basis whereof it may be said that it had all along been aware
that it had to file the appeal within the prescribed period of
limitation and that it had taken requisite steps needed for filing
such appeals, or to expedite the reconstruction of records which are
stated to have been allegedly lost in transit when the file had been
sent to the Regional Office and despite taking all steps, it had been
disabled because of one or the other reasons to file the appeal
within the prescribed period of limitation.
17. Spelling
out of the difficulty or the purported genuine cause which had
disabled an insurance company or, for that matter, any other
authority which acts through its impersonal machinery, to file an
appeal within the prescribed period of limitation or the discernment
of such cause from any other material on record thus becomes
necessary because in its absence the court may be disabled to find
out as to whether the difficulty or cause projected was a genuine
cause justifying condonation of delay or was a self invited or
misconceived cause which may not, in the given facts and
circumstances of a case, warrant consideration for allowing
condonation of delay and depriving of a party of its right which had
accrued to it because of omission of the opposite party to file the
appeal within the prescribed period of limitation.
18. Appellant
insurance company has neither projected nor spelled out any such
cause or genuine difficulty in the present case which had disabled it
from filing its appeals within the prescribed period of limitation.
Its long wait for more than a year for receipt of its files from its
Regional Office, without having taken any steps for reconstruction of
records so as to file appeals within the shortest possible time,
cannot be accepted as a genuine/sufficient cause which may be said to
have disabled it from filing appeals within the prescribed period of
limitation justifying condonation of delay.
19. I
am supported in taking this view by a Division Bench judge of this
Court in National Insurance Co. Ltd. v. Sep. Bhagirath Singh, Cond
(c) No.205 of 2005; decided on 13.12.2005, where, the Bench observed
as follows :
?SGrounds
raised by the appellants do not exhibit any cause much less
sufficient, which appears to have prevented the company in filing the
appeals within prescribed time of limitation. On the other hand, the
grounds only show the route, which the files appear to have taken
before the appeals, came to be filed in this Court. The appellant, it
appears, has multipolar legal hierarchy, which the appellant urges
that a file has to travel before a final decision, as to the filing
or otherwise of an appeal, is taken by the company. In other words,
it suggests that the company has devised its own procedure for taking
a decision as to whether or not an appeal be filed against a decision
of the Court. If this practice, which has been adopted by the
company, has to be accepted, then one has to do that at the cost of
the prevailing law of the land which does not contemplate providing
more than three months’ time to a litigant to consider as to whether
or not, it wanted to file an appeal against the judgment of a court.
The company cannot, in our opinion, be permitted to have a separate
period of limitation for its appeals. The insurance company cannot be
treated differently from an ordinary litigant. The appellant company
possessed of the requisite legal expertise knows fully well that if
an appeal is to be filed, it is required to be so filed within the
prescribed period of limitation.
Proviso
appended to Section 173 of the Motor Vehicles Act, 1988, does not
contemplate the condonation of delay on such self invited, disabling
grounds to seek condonation of delay. What is contemplated by second
proviso of Section 173 of the Motor Vehicles Act, 1988, is the
‘sufficient cause’ which prevents a litigant from filing an appeal.
This sufficient cause, cannot be countenanced as cause invited by a
litigant on his own. Sufficient cause contemplated by proviso to
Section 173, is an unforeseen act or event because of which a
litigant is prevented in filing appeal within the statutory period of
limitation. Appellant company has failed to project any such cause
unexpected or unforeseen as is contemplated by Section 173 of Motor
Vehicles Act, 1988.
Applications
filed by the applicants/appellants, were, thus, misconceived. We have
examined the reasoning given by the learned single Judge. We are
satisfied with the order passed by learned single Judge. The order
impugned in the appeals, thus, does not call for any interference.
The
appeals, are, accordingly, rejected.??
In
view of the observations made by the apex court and the Jammu &
Kashmir High Court as referred to above and also in view of the
facts of the present case, since the delay beyond 28.9.2005 has
not been satisfactorily explained by the applicant insurance company
which is having number of officers in the office and who can take
help from such officers for immediately filing appeal in time,
prayer for condonation of delay cannot be granted. Looking to the
averments made in this application, no sincere efforts were made by
the insurance company for filing appeal in time and the reason given
by the insurance company is also not genuine because to have report
from investigator whether the insured driver was having valid
licence or not at the time of accident, that can be inquired and
investigated even after filing of the first appeal, for that, filing
of appeal cannot be delayed and if it is delayed on such ground, it
cannot be said that because of such ground, applicant insurance
company was prevented from filing of first appeal like production of
certified copy without which appeal cannot be filed. Therefore, such
ground cannot be accepted and on such ground, delay caused in filing
of the appeal cannot be condoned. It is more so when one appeal
arising from the same ground wherein there was no delay was admitted
by this court, at that time, appellant could have filed appeal
without waiting for report of investigator but that has not been
done. Along with the next appeal of the same ground which was having
delay of 111 days also, present appeal has not been filed but
appellant insurance company waited for report of investigator as if
appeal it was prevented from filing of such appeal without such
report. Therefore, three appeals arising from same accident having
different period of delay suggests that there is total inaction,
lethargic approach and absolute negligence on the part of the
applicant insurance company in filing of appeal and, therefore,
according to my opinion, there is no satisfactory explanation given
by the applicant and reason which is assigned is not satisfying
conscience of this court for exercising discretion in favour of the
appellant and further to have report from investigator has no nexus
for waiting to file appeal by the insurance company, therefore,
reason assigned is also not germane and according to my opinion, it
amounts to clear negligence on the part of the insurance company
and, therefore, this application cannot be entertained.
Apart
from that, it is necessary to note that the respondents are entitled
for some higher amount but specific purshis was filed by the
respondents claimants for restricting their claim upto Rs.2 lacs
and at that time also, applicant insurance company was having
opportunity to raise objection before the claims tribunal and,
therefore, delay cannot be condoned and therefore, this application
is rejected. Consequently, appeal stands rejected. Amount deposited
by the applicant insurance company at the time of issuance of notice
to the respondents being condition, may be refunded to the applicant
by the registry of this court by account payee cheque.
Since
the application for condonation of delay has been rejected by this
court, therefore, whatever refund of court fee is available to the
insurance company permissible under law, same may be given to the
applicant insurance company by the registry of this court in
accordance with law either by way of refund certificate or cheque as
per law.
(H.K.
Rathod,J.)
Vyas
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