IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2382 of 2008()
1. SHAREEFA, AGED 36 YEARS,
... Petitioner
2. FARHAS, S/O.HAMSA, AGED 21 YEARS,
3. FIROZ (MINOR), S/O.HAMSA, AGED 16 YEARS,
4. KADEESA, AGED 75 YEARS,
5. RABI, D/O.LATE BABU, AGED 52 YEARS,
6. MAHAMOOD, S/O.LATE BABU, AGED 50
7. JAMEELA, D/O.LATE BABU,
8. SAINABA, D/O.LATE BABU,
9. ASHRAF, S/O.LATE BABU,
Vs
1. SMT.ALEENA MATHEW,
... Respondent
2. MR.UNNIKRISHNAN, S/O.MUTHU,
3. M/S.UNITED INDIA INSURANCE CO.LTD.,
For Petitioner :SMT.K.V.RESHMI
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :18/02/2009
O R D E R
R.BASANT & C.T.RAVIKUMAR, JJ.
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C.M.Appl.No.2446 of 2008 & M.A.C.A.
No.2382 of 2008, C.M.Appl.No.2460 of 2008 &
M.A.C.A. No.2399 of 2008 and C.M.Appl.No.2463 of
2008 & M.A.C.A. No.2401 of 2008
-------------------------------------
Dated this the 17th day of February, 2009
JUDGMENT
BASANT, J.
These 3 appeals are preferred against a common award
passed by the Tribunal disposing of 4 claim petitions. The
common award was passed as early as on 07.02.04. Claims
relate to death of 3 deceased persons. Claimants are all legal
heirs/dependents of the respective deceased persons.
2. C.M.Applications have been filed to condone the delay
of 1609, 1610 and 1611 days in filing the appeals. It is prayed
that a lenient view may be taken and the long delay indicated
above may be condoned.
3. What is the reason ? The learned counsel for the
appellants submits that the appellants in all the 3 cases had
entrusted the files for preferring appeals to a counsel at Calicut.
That counsel had misplaced the records. Hence no appeals could
be filed. This was realised long later. Thereupon a fresh copy
C.M.Appl.No.2446 of 2008 & M.A.C.A.
No.2382 of 2008, C.M.Appl.No.2460 of 2008 &
M.A.C.A. No.2399 of 2008 and C.M.Appl.No.2463 of
2008 & M.A.C.A. No.2401 of 2008 2
application was filed and copy of the award was obtained. One
of the appellants and the counsel concerned have filed affidavits
in all the cases. It is prayed that a lenient view may be taken and
the delay may be condoned.
4. The applications are stoutly opposed by the counsel
for the insurance company. The counsel contends that
absolutely no reasons exist to justify the condonation of the long,
inordinate and unexplained delay in filing these appeals. The
apology of an excuse offered for not filing the appeals in time,
cannot be accepted at all, submits the learned counsel for the
insurance company. It may be true that the counsel had omitted
to file the appeals. But the conduct of the appellants not making
any enquiries as to what the counsel has done with the papers
entrusted to him must convey eloquently to the Court that there
was no serious intention to prefer an appeal. Long later they
have waken up from their slumber and are trying to justify the
inordinate delay in filing the appeals, contends counsel.
5. We are prima facie not satisfied at all that the reasons
advanced for condonation of delay are justified or sufficient to
C.M.Appl.No.2446 of 2008 & M.A.C.A.
No.2382 of 2008, C.M.Appl.No.2460 of 2008 &
M.A.C.A. No.2399 of 2008 and C.M.Appl.No.2463 of
2008 & M.A.C.A. No.2401 of 2008 3
show indulgence in favour of the appellants. However, the
learned counsel for the appellants was requested to explain the
nature of the challenge which the appellants want to raise to
verify whether any failure of justice would result by our not
condoning the delay.
6. The only plank on which the impugned common award
is assailed by the appellants is that the multiplicands taken in the
3 cases are not adequate. In 2 cases monthly earnings of the
deceased was reckoned as Rs.4,800/- p.m and in the third it was
reckoned as Rs.3,200/- p.m. Certificates were produced to show
that the deceased persons employed abroad were earning
amounts equivalent to Indian Rs.20,000/-, Rs.12,000/- and
Rs.8,000/- respectively. The Tribunal took note of the fact that
one of the certificates produced cannot be said to be authentic
and accepted implicitly. Even if the certificates were accepted,
the Tribunal took the view that income earned during a
temporary phase of employment abroad cannot be reckoned as
the multiplicand when the multiplier is ascertained depending on
the age and the compensation for loss of dependency is worked
C.M.Appl.No.2446 of 2008 & M.A.C.A.
No.2382 of 2008, C.M.Appl.No.2460 of 2008 &
M.A.C.A. No.2399 of 2008 and C.M.Appl.No.2463 of
2008 & M.A.C.A. No.2401 of 2008 4
out. The Tribunal realistically felt that only an amount of
Rs.4,800/-, Rs.4,800/- and Rs.3,200/- p.m can be reckoned as the
multiplicand applicable to the 3 deceased persons in the facts
and circumstances of these cases. We are not satisfied that any
failure of justice results on account of the course adopted by the
Tribunal or by our not entertaining the applications for
condonation of delay favourably. The C.M.Applications for
condonation of delay are, in these circumstances dismissed.
Consequently the appeals shall stand rejected as barred by
limitation.
(R.BASANT, JUDGE)
(C.T.RAVIKUMAR)
rtr/-