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CA/10361/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 10361 of 2009
In
FIRST
APPEAL (STAMP NUMBER) No. 4967 of 2009
=========================================================
ORIENTAL
INSURANCE COMPANY LTDTHRO'ITS MANAGER(HUB) - Petitioner(s)
Versus
BHAGWATIBEN
RAJUBHAI PARMAR THRO'KIRTIBEN RAVJIBHAI PARMAR & 5 -
Respondent(s)
=========================================================
Appearance
:
MR
VASANT S SHAH for
Petitioner(s) : 1,
None for Respondent(s) : 1 - 6.
MR TUSHAR L
SHETH for Respondent(s) : 1.2.1, 1.2.2,1.2.3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/02/2010
ORAL
ORDER
1. Heard
learned advocate Mr.Vasant S. Shah for applicant and learned advocate
Mr.Tushar L. Sheth for respondents claimants.
2. Rule.
Learned advocate Mr.Tushar L. Sheth waives service of notice of Rule
on behalf of respondents claimants.
3. The
affidavit-in-reply is filed by respondents claimants opposing the
application for condonation of delay filed by Insurance Co. The delay
of 494 days occurred in filing the first appeal. The reason is given
by applicant Insurance Co. in Ground-A, which is quoted as under
:
A. That,
the applicants obeyed the award and decree passed by the Ld. Tribunal
considering the opinion given by the attending advocate and in all
the group matters deposited the awarded amount with the interest and
cost with the tribunal, but the present respondent No.1 original
claimants have approached before this Hon’ble Court for the
reimbursement of the amount deposited with the tribunal in the MACP
No.52/01 by way of Spl. C.A. No.12793/08. During the proceedings of
that petition the Hon’ble Court feels that the awarded amount in the
said MACP is very excessive, as the claimants are the minor brothers
and sisters and they are not dependents and considering the judgment
of the apex court the applicants feels that in the aforesaid award
appeal should be preferred and the concern office of the insurance
company decided and opine to prefer an appeal and after that on
account of some administrative work the aforesaid delay has been
occurred.’
4. There
is some background which is necessary to be considered by this Court
as order passed by the Division Bench of this Court in LPA No.1601 of
2009 challenging order passed by learned Single Judge of this Court
in SCA No.12793 of 2008. The Division Bench of this Court has decided
said LPA on 24.12.2009, which is quoted as under :
1 Writ
petition was preferred by the appellants, heirs of deceased
Mayurkumar Rajubhai Parmar, against the order dated 21.6.2008 passed
by the Motor Accident Claims Tribunal (Aux.), Gondal. In the said
case, the learned Single Judge by its
order dated 17.8.2009 while adjourning the case made the following
observation:
4. Mr.Shah,
learned advocate for the respondent Insurance Company to keep present
a responsible officer from the Insurance Company with necessary
instructions on the point as to why the Insurance Company has not
filed appeal against the aforesaid judgment and award, particularly
when the Tribunal has awarded an amount of Rs.1,54,000/- to the
minor brothers and sisters for a death of minor brother.
In
a case where minor brothers and sisters were not the dependents of
the minor brother, whether the question of anticipated income of the
deceased minor was at all required to be considered by the Tribunal
or whether the minor brothers and sisters were entitled to receive
compensation amount under certain heads only, on account of death of
the minor.
It
will be appropriate to note that in an unfortunate accident, the
minor claimants lost their father, mother and a minor brother. For
the loss of father and mother, two separate claim petitions were
filed being Motor Accident Claims Petition Nos.50 and 51 of 2001,
wherein the very same Tribunal awarded an amount of Rs.5,62,000/- and
Rs.2,72,000/- to the present minor claimants being two sons and one
daughter.
2 Learned
counsel for the appellants submits that, during pendency of the writ
petition, there was no occasion for the learned Single Judge to
observe as to why the Insurance Company has not filed appeal against
one or other award or judgment, which is uncalled for.
3 Learned
counsel for the respondent-Insurance Company is also not in a
position to reply as to what was the occasion for learned Single
Judge to make a positive observation on merit, before final hearing
of the case.
4 Having
heard learned counsel for the parties, as we are of the view that,
before deciding the case on merit, it was not open to the learned
Single Judge to make any such observation with regard to the award or
to suggest whether any appeal should be preferred against the award
or not, we set aside the order dated 17.8.2009 passed by the learned
Single Judge and remit the Special Civil Application No.12793 of 2008
to the learned Single Judge for a decision on merit.
5 In
view of the aforesaid order passed in the Letters Patent Appeal, we
pass no order in the First Appeal, which should be decided
independently on merit. Both Letters Patent appeal and Civil
Application filed therein stand disposed of.
5. The
cause of action for applicant Insurance Co. has arisen because of
order passed by learned Single Judge dated 17.8.2009 as referred by
Division Bench of this Court in order dated 24.12.2009.
6. Learned
advocate Mr.Sheth has made submissions relying upon reply against
condonation of delay application that learned Single Judge orally
directed to call for the file of Insurance Co. from learned advocate,
who appeared on behalf of Insurance Co. in SCA, made a statement on
17.8.2009 that he has forwarded his opinion to file appeal against
the award. Learned advocate who appeared on behalf of Insurance Co.,
forwarded his opinion only after the order dated 17.8.2009 passed by
learned Single Judge of this Court. Before that the learned Single
Judge of this Court has orally directed to advocate of Insurance Co.
to call for the file from the office and kept the matter on
30.7.2009. On that day, the advocate of Insurance Co. requested for
some time and matter was kept on 17.8.2009. On that day, learned
advocate of Insurance Co. was having the file and informed learned
Single Judge that there is an opinion of Advocate of Insurance Co.
that it is not a case of appeal. Therefore, he submitted that
decision to file appeal is taken only after the order passed by
learned Single Judge of this Court on 17.8.2009. He relied upon
decision of Apex Court in case of Ajit Singh Thakur Singh v. State of
Gujarat reported in 1981 (0) GLHEL-SC 760 wherein the Apex Court has
observed in para.6 as under :
6. At
the outset, it is urged by learned counsel for the appellants that
the High Court erred in condoning the delay in
filing the appeal, and the appeal should have been dismissed as
barred by limitation. We have examined the facts carefully.
It appears that initially the State Government took a decision
not to file an appeal and it allowed the period of limitation to
lapse. Subsequently, on certain observations made by the High Court
while considering a revision petition by Bhulabhai that it was a
fit case where the State Government should file an appeal and
on notice being issued by the High Court to the State Government in
the matter, the appeal was filed. It was filed three months after
limitation had expired. A faint attempt was made to show that when
the initial decision was taken not to file an appeal all the papers
had not been considered by the department concerned, but we are not
impressed by that allegation. The truth appears to be that the appeal
as not filed at first because the State Government saw no case on
the merits for an appeal, and it was filed only because the High
Court had observed and that was long after limitation had expired
that the case was fit for appeal by the State Government. Now, 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 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 limitation 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.
7. Therefore,
he submitted that delay cannot be condoned because of certain
observations made by this Court while considering revision petition
by Bhulabhai that it was a fit case where the State Government should
file appeal. In short, the objection of claimant is that such delay
being a gross delay not required to be condoned because this decision
which has been taken by applicant being an afterthought and based
upon order passed by this Court on 17.8.2009.
8. Learned
advocate Mr.Vasant Shah for applicant submitted that delay may be
condoned and decide the first appeal preferred by applicant
Insurance Co. on merits after considering submissions made by both
learned advocates. For that, learned advocate Mr.Sheth has no
objection to consider first appeal on merits after condoning the
delay as prayed by applicant in present civil application.
9.
Therefore, in light of submissions made by both learned advocates,
delay of 494 days caused in filing first appeal is condoned in the
interest of justice. Rule is made absolute accordingly.
10. The
Registry is directed to register First Appeal (St.) No.4967 of 2009.
(H.K.RATHOD,J.)
(vipul)
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