{"id":267489,"date":"2008-09-12T00:00:00","date_gmt":"2008-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/national-vs-jesangbhai-on-12-september-2008"},"modified":"2016-12-06T22:26:51","modified_gmt":"2016-12-06T16:56:51","slug":"national-vs-jesangbhai-on-12-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/national-vs-jesangbhai-on-12-september-2008","title":{"rendered":"National vs Jesangbhai on 12 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
National vs Jesangbhai on 12 September, 2008<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCA\/9075\/2007\t 14\/ 14\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nAPPLICATION - FOR CONDONATION OF DELAY No. 9075 of 2007\n \n\nIn\n\n\n \n\nFIRST\nAPPEAL (STAMP NUMBER) No. 2317 of 2007\n \n\n \n \n=========================================================\n\n \n\nNATIONAL\nINSURANCE CO. LTD. - Petitioner(s)\n \n\nVersus\n \n\nJESANGBHAI\nPARBATSINH RAJ & 5 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nMEHUL SHARAD SHAH for\nPetitioner(s) : 1, \nNone for Respondent(s) : 1, \nRULE SERVED for\nRespondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6\n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 12\/09\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned Advocate Mr. Mehul Sharad Shah for the applicant Insurance
\n\tCompany.\n<\/p>\n
By
\n\tfiling present application, the applicant is praying for condoning
\n\tdelay of  536 days caused in filing of an appeal. Learned Advocate
\n\tMr. Shah submitted that the MACT at Nadiad delivered impugned
\n\tjudgment and award on 1st September, 2005. Learned
\n\tAdvocate for the insurance company had applied for certified copy of
\n\tthe impugned award on 1st September, 2005 and the same
\n\twas prepared on 21st Sept. 2005. Thereafter, Ms. Pratima
\n\tPandya advocate for the insurance company had sent copy of judgment
\n\tand award along with her opinion by letter dated 24.9.2005 to the
\n\tDivisional Office at Nadiad which was received by Divisional Office
\n\ton 28th September, 2005 and, thereafter, he submitted
\n\tthat because of not having information regarding licence of deceased
\n\tdriver provided by the claimants, three claims petitions were
\n\tarising out of the same accident and during the course of payment of
\n\tlast judgment and award in MACP NO. 32\/2005, investigation was
\n\thanded over to GEE BEE Investigators by the applicant. As per report
\n\tof the investigator dated 22.5.07, insured driver who was driving
\n\tthe vehicle was not having valid driving licence.  Therefore, in
\n\tview of decision of the apex court reported in 2006(4) SCC 250,
\n\tinsurance company is not liable to pay the compensation. Thereafter,
\n\tdivisional office Anand sought opinion of regional office Baroda for
\n\tpreferring an appeal by letter dated 23.5.07   and thereafter
\n\tregional office Baroda by letter dated 30.5.07 requested advocate at
\n\tAhmedabad to give opinion to prefer an appeal and as per advice in
\n\tview of recent decision of apex court reported in 2004 ACJ 1 and
\n\t2006(4) SCC 250 and AIR 2004 SC 2767, appeal could be filed and
\n\tthereafter by letter dated 5.11.2007, copy of an application for
\n\tstay and delay were sent to regional office by advocate and appeal
\n\twas filed on 11.6.2007 and, therefore, there is delay of 53 days in
\n\tfiling of an appeal.\n<\/p>\n
In
\n\tFirst Appeal (Stamp Number) 2317 of 2007, the appellant is
\n\tchallenging the award made by the claims tribunal Kheda at Nadiad in
\n\tMACP No. 37 of 2005 Exh. 16 wherein the claims tribunal has awarded
\n\tcompensation of Rs.2 lacs under section 163A<\/a> of the MV Act, 1988 by
\n\taward dated 1st September, 2005. Learned Advocate Mr.
\n\tShah submitted that the claims tribunal was of the view that the
\n\tclaimants are entitled to get the amount of Rs.3,93,500.00 towards
\n\tcompensation but by purshis Exh. 12 filed by the claimants, claim
\n\thas been reduced to Rs.2 lacs only considering the risk of the
\n\tvehicle in question is covering Rs  2 lacs only and, therefore,
\n\taward has  been made accordingly by the claims tribunal.\n<\/p>\n
Claims
\n\ttribunal has decided application under sec. 163A of the MV Act<\/a>,1988.
\n\tOut of three appeals, initial first appeal from the group has been
\n\tadmitted by this court wherein there was no delay and in another
\n\tfirst appeal of the same group, there was delay of 111 days in
\n\tfiling of the appeal and, therefore, according to my opinion, when
\n\tthe first appeal wherein there was no delay was admitted by this
\n\tcourt, why on that occasion, decision was not taken to file present
\n\tappeal and for that, no explanation has been given by the applicant
\n\tinsurance company. In First Appeal (Stamp Number) No. 2318 of 2007,
\n\tthere was delay of 111 days and on that occasion also, why decision
\n\thas not been taken by the insurance company to challenge award  by
\n\tfiling appeal, that has also not been explained by the applicant
\n\tinsurance company in this application.\n<\/p>\n
Looking
\n\tto the facts emerging from the record, it is clear that there is
\n\tinordinate delay and inaction on the part of the applicant which is
\n\tnot satisfactorily explained by the applicant before this court.
\n\tTherefore, according to my opinion, delay of 536 days has not been
\n\texplained by the insurance company beyond 28th September,
\n\t2005 upto filing of first appeal i.e. 11.6.2007, almost about one
\n\tyear and nine months. Such delay is culpable and cannot be condoned
\n\twithout satisfactory explanation from the insurance company.\n<\/p>\n
In
\n\tan identical case of V.K. Thukral and Others v. Lalit and
\n\tOthers<\/a> reported
\n\tin 2006 ACJ 2440, owner has filed an
\n\tapplication for condonation of 416 days delay in preferring of an
\n\tappeal.  His condonation application has been considered by the Apex
\n\tCourt and relevant observations are made in Para 7 to 9 which are
\n\tquoted as under :\n<\/p>\n
?S7.\tLearned
\ncounsel for the appellants, relied upon Naubat Ram Sharma v.
\nAdditional District Judge II, Moradabad, AIR 1987 SC 1352, to urge
\nthat counsel’s fault should not visit the client with penal
\ncounsequences. Learned counsel also relied upon Collector, Land
\nAcquisition, Anantnag v. Katiji<\/a>, AIR 1987 SC 1353, to urge that
\nsufficient cause should be construed liberally. Reliance was also
\nplaced on the decisions in Chhabi Kulavi v. Ganesh Chandra Mondal, JT<\/a>
\n2001 (1) SC 267; State of Bihar v. Nilamani Jha, JT<\/a> 2000 (Supp 1) SC
\n209; B.T. Rai v. Ramanna Gowda, JT 2000 (Supp 1) SC 211 and Rafiq v.
\nMunshilal<\/a>, AIR 1981 SC 1400, to urge that counsel’s inaction should
\nnot result in the litigant suffering.\n<\/p>\n
8.\tIt
\nis true that in an adversarial litigation, clients repose faith in
\ntheir advocate and having paid the fee and given requisite
\ninstructions to their lawyer, party would be fully justified in being
\nconfident that his lawyer would discharge his professional
\nobligations. Therefore, where it is brought on record that a party
\nhas done everything in its power to effectively participate in a
\nproceedings, courts should be liberal in construing sufficient cause
\nand should lean in favour of such party. A litigant does not stand to
\nbenefit by lodging appeals at a belated stage. Whenever substantial
\njustice and technical consideration are opposed to each other, cause
\nof substantial justice has to be preferred. Justice oriented approach
\nhas to be taken by a Court. However, this does not mean that a
\nlitigant has a free licence to approach the court at its will.\n<\/p>\n
9.\tAt
\nsome stage of the judicial proceedings, where a litigant finds that
\nhis lawyer is not rendering the requisite professional services, it
\nbecomes the duty of the litigant to become vigilant.?S<\/p>\n
Similarly,
\n\tin case of Oriental India Insurance Company Limited v. S.D.
\n\tSahare and Others<\/a> reported in 2008 ACJ 1327 by
\n\tJammu and Kashmir High Court, where, High Court has
\n\tconsidered the same. The relevant Para 14 to 20 are, therefore,
\n\tquoted as under :\n<\/p>\n
?S14.\t\tExpiry
\n\tof the period of limitation prescribed for filing appeal in a
\n\tcontested matter, particularly in those cases where claims are
\n\tallowed under the Motor Vehicles Act<\/a>, in favour of the injured or
\n\tthose who are left behind to suffer because of the death of their
\n\tbreadwinner, vests a valuable right in the claimant which cannot be
\n\ttaken away on mere ipsi dixit
\n\tof the party losing the litigation. Strong reasons are,
\n\ttherefore, required to be spelled out by such appellant seeking
\n\tcondonation of delay in filing the appeal. It is further required to
\n\tindicate the steps taken by it to ensure filing of appeal within the
\n\tprescribed time and the circumstances which had prevented it from
\n\tfiling the appeal within the prescribed period of limitation.\n<\/p>\n
15.\t\tThe
\nground urged by the insurance company to seek condonation of delay
\ndoes not indicate its awareness that the appeals had to be filed
\nwithin the prescribed period of limitation and about the efforts and
\nsteps taken by it to ensure that no delay was caused in filing the
\nappeals within the prescribed period of limitation as also the
\nfactors which despite its having taken steps to file appeal within
\nthe prescribed period of limitation had disabled it to file the
\nappeal.\n<\/p>\n
16.\t\tThe
\ninsurance company has not placed any material on record either, on
\nthe basis whereof it may be said that it had all along been aware
\nthat it had to file the appeal within the prescribed period of
\nlimitation and that it had taken requisite steps needed for filing
\nsuch appeals, or to expedite the reconstruction of records which are
\nstated to have been allegedly lost in transit when the file had been
\nsent to the Regional Office and despite taking all steps, it had been
\ndisabled because of one or the other reasons to file the appeal
\nwithin the prescribed period of limitation.\n<\/p>\n
17.\t\tSpelling
\nout of the difficulty or the purported genuine cause which had
\ndisabled an insurance company or, for that matter, any other
\nauthority which acts through its impersonal machinery, to file an
\nappeal within the prescribed period of limitation or the discernment
\nof such cause from any other material on record thus becomes
\nnecessary because in its absence the court may be disabled to find
\nout as to whether the difficulty or cause projected was a genuine
\ncause justifying condonation of delay or was a self invited or
\nmisconceived cause which may not, in the given facts and
\ncircumstances of a case, warrant consideration for allowing
\ncondonation of delay and depriving of a party of its right which had
\naccrued to it because of omission of the opposite party to file the
\nappeal within the prescribed period of limitation.\n<\/p>\n
18.\t\tAppellant
\ninsurance company has neither projected nor spelled out any such
\ncause or genuine difficulty in the present case which had disabled it
\nfrom filing its appeals within the prescribed period of limitation.
\nIts long wait for more than a year for receipt of its files from its
\nRegional Office, without having taken any steps for reconstruction of
\nrecords so as to file appeals within the shortest possible time,
\ncannot be accepted as a genuine\/sufficient cause which may be said to
\nhave disabled it from filing appeals within the prescribed period of
\nlimitation justifying condonation of delay.\n<\/p>\n
19.\t\tI
\nam supported in taking this view by a Division Bench judge of this
\nCourt in National Insurance Co. Ltd. v. Sep. Bhagirath Singh, Cond\n<\/p>\n
(c) No.205 of 2005; decided on 13.12.2005, where, the Bench observed
\nas follows :\n<\/p>\n
?SGrounds
\nraised by the appellants do not exhibit any cause much less
\nsufficient, which appears to have prevented the company in filing the
\nappeals within prescribed time of limitation. On the other hand, the
\ngrounds only show the route, which the files appear to have taken
\nbefore the appeals, came to be filed in this Court. The appellant, it
\nappears, has multipolar legal hierarchy, which the appellant urges
\nthat a file has to travel before a final decision, as to the filing
\nor otherwise of an appeal, is taken by the company. In other words,
\nit suggests that the company has devised its own procedure for taking
\na decision as to whether or not an appeal be filed against a decision
\nof the Court. If this practice, which has been adopted by the
\ncompany, has to be accepted, then one has to do that at the cost of
\nthe prevailing law of the land which does not contemplate providing
\nmore than three months’ time to a litigant to consider as to whether
\nor not, it wanted to file an appeal against the judgment of a court.
\nThe company cannot, in our opinion, be permitted to have a separate
\nperiod of limitation for its appeals. The insurance company cannot be
\ntreated differently from an ordinary litigant. The appellant company
\npossessed of the requisite legal expertise knows fully well that if
\nan appeal is to be filed, it is required to be so filed within the
\nprescribed period of limitation.\n<\/p>\n
Proviso
\nappended to Section 173<\/a> of the Motor Vehicles Act, 1988, does not
\ncontemplate the condonation of delay on such self invited, disabling
\ngrounds to seek condonation of delay. What is contemplated by second
\nproviso of Section 173<\/a> of the Motor Vehicles Act, 1988, is the
\n‘sufficient cause’ which prevents a litigant from filing an appeal.
\nThis sufficient cause, cannot be countenanced as cause invited by a
\nlitigant on his own. Sufficient cause contemplated by proviso to
\nSection 173<\/a>, is an unforeseen act or event because of which a
\nlitigant is prevented in filing appeal within the statutory period of
\nlimitation. Appellant company has failed to project any such cause
\nunexpected or unforeseen as is contemplated by Section 173<\/a> of Motor
\nVehicles Act, 1988.\n<\/p>\n
Applications
\nfiled by the applicants\/appellants, were, thus, misconceived. We have
\nexamined the reasoning given by the learned single Judge. We are
\nsatisfied with the order passed by learned single Judge. The order
\nimpugned in the appeals, thus, does not call for any interference.\n<\/p>\n
\tThe
\n\tappeals, are, accordingly, rejected.??\n<\/p>\n
In
\n\tview of the observations made by the apex court and the Jammu &
\n\tKashmir High Court as referred to above and also in view of the
\n\tfacts of the present case,   since the delay beyond 28.9.2005 has
\n\tnot been satisfactorily explained by the applicant insurance company
\n\twhich is having number of officers in the office and who can take
\n\thelp from such officers for immediately filing appeal in time,
\n\tprayer for condonation of delay cannot be granted. Looking to the
\n\taverments made in this application, no sincere efforts were made by
\n\tthe insurance company for filing appeal in time and the reason given
\n\tby the insurance company is also not genuine because to have report
\n\tfrom investigator whether the insured driver was having valid
\n\tlicence or not at the time of accident, that can be inquired and
\n\tinvestigated even after filing of the first appeal, for that, filing
\n\tof appeal cannot be delayed and if it is delayed on such ground, it
\n\tcannot be said that because of such ground, applicant insurance
\n\tcompany was prevented from filing of first appeal like production of
\n\tcertified copy without which appeal cannot be filed. Therefore, such
\n\tground cannot be accepted and on such ground, delay caused in filing
\n\tof the appeal cannot be condoned. It is more so when one appeal
\n\tarising from the same ground wherein there was no delay was admitted
\n\tby this court, at that time, appellant could have filed appeal
\n\twithout waiting for report of investigator but that has not been
\n\tdone. Along with the next appeal of the same ground which was having
\n\tdelay of 111 days also, present appeal has not been filed but
\n\tappellant insurance company waited for report of investigator as if
\n\tappeal it was prevented from filing of such appeal without such
\n\treport. Therefore, three appeals arising from same accident having
\n\tdifferent period of delay suggests that there is total inaction,
\n\tlethargic approach and absolute negligence on the part of the
\n\tapplicant insurance company in filing of appeal and, therefore,
\n\taccording to my opinion, there is no satisfactory explanation given
\n\tby the applicant and reason which is assigned is not satisfying
\n\tconscience of this court for exercising discretion in favour of the
\n\tappellant and further to have report from investigator has no nexus
\n\tfor waiting to file appeal by the insurance company, therefore,
\n\treason assigned is also not germane and according to my opinion, it
\n\tamounts to clear negligence on the part of the insurance company
\n\tand, therefore, this application cannot be entertained.\n<\/p>\n
Apart
\n\tfrom that, it is necessary to note that the respondents are entitled
\n\tfor some higher amount but specific purshis was filed by the
\n\trespondents claimants for restricting their claim upto Rs.2 lacs
\n\tand at that time also, applicant insurance company was having
\n\topportunity to raise objection before the claims tribunal and,
\n\ttherefore, delay cannot be condoned and therefore, this application
\n\tis rejected. Consequently, appeal stands rejected. Amount deposited
\n\tby the applicant insurance company at the time of issuance of notice
\n\tto the respondents being condition, may be refunded to the applicant
\n\tby the registry of this court by account payee cheque.\n<\/p>\n
Since
\n\tthe application for condonation of delay has been rejected by this
\n\tcourt, therefore, whatever refund of court fee is available to the
\n\tinsurance company permissible under law, same may be given to the
\n\tapplicant insurance company by the registry of this court in
\n\taccordance with law either by way of refund certificate or cheque as
\n\tper law.\n<\/p>\n
(H.K.\n<\/p>\n
Rathod,J.)<\/p>\n
Vyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court National vs Jesangbhai on 12 September, 2008 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-267489","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNational vs Jesangbhai on 12 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/national-vs-jesangbhai-on-12-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"National vs Jesangbhai on 12 September, 2008 - 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