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1998 DIGILAW 535 (GUJ)

Gitaben Manharlal Pujara v. Haresh Bipinchandra Pathak

1998-08-24

S.K.KESHOTE

body1998
S. K. KESHOTE, J. ( 1 ) BY this civil application, prayer has been made by the applicant-appellant for condonation of delay of 576 days caused in filing of this appeal against the order of the Motor Accident Claims Tribunal. (Main) Rajkot in Motor accident Claims Petition No. 415/1996, below Ex. 7 dated 7. 9. 1996. Under the impugned order, the Tribunal has held that the applicant-appellant is entitled to recover interim compensation under Sec. 140 of Motor Vehicles Act, in sum of Rs. 25000/- with interest at the rate of 12% p. a. from the date of application till the date of payment from the owner of the vehicle but the insurance company was exonerated of this liability. Hence this appeal before this Court against the impugned order. ( 2 ) UNDER the impugned order the matters arising from one and the same accident, including this case out which this appeal arises, have been decided the grant of interim compensation and the insurance company has been exonerated in all these matters. ( 3 ) LEARNED counsel for the applicant-appellant contended that delay in filing of appeal has been caused for the reason that the applicant-appellant was not in a position to file appeal within limitation for the constraints and reasons as narrated in the application. It is urged that in all other matters, the appeals have been preferred before this Court and the Court has made insurance company liable to indemnify to the owner of the amount of interim compensation together with interest thereon ordered to be paid to the claimants in those matters by the owner of the offending vehicle by the Tribunal. ( 4 ) I have given my thoughtful consideration to the arguments advanced by the learned counsel for the applicant-appellant and I am satisfied that it is not a fit case where delay in filing of the appeal deserves to be condoned. It is nodoubt a matter pertaining to grant of interim compensation to the claimant applicant-appellant and it is also equally true that ordinarily it is very difficult for the claimant to realise this amount from the owner or the driver of the offending vehicle. It is nodoubt a matter pertaining to grant of interim compensation to the claimant applicant-appellant and it is also equally true that ordinarily it is very difficult for the claimant to realise this amount from the owner or the driver of the offending vehicle. Statutory liability to indemnify for the liability of the insured is there on the insurer i. e. insurance company but in case where the insurance company has been exonerated by the tribunal of its liability, the appeal has to be presented by the aggrieved party within the prescribed period of limitation and in case where it is not presented within limitation, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he/she/it had sufficient cause for not preferring the appeal with in prescribed period of the limitation, so the satisfaction of the Court on the facts set forth in the application supported by the affidavit that the appellant had sufficient cause for not preferring the appeal in the prescribed period of limitation is sine qua non for condonation of delay which has been caused in filing of the appeal. Delay caused in filing of appeal cannot be condoned more so when there in long delay of 576 days merely on sympathies or on consideration of economic constraints and financial difficulties of the applicant-appellant or merely an asking or desire. In the absence of specific, definite and clear facts pleaded in application and supported by the affidavit by which the applicant was prevented from filing of the appeal with the prescribed period of limitation and how he/she/it has overcome to constraints and conditions it is difficult for the Court to accept the case of the applicant-appellant for condonation of delay caused in preferring the appeal. While considering application of the applicant-appellant for condonation of delay caused in preferring the appeal the Court has to keep in mind also that by not preferring the appeal by the aggrieved party in limitation a valuable right is accrued to the opposite party, more so when delay is of considerable long period. Each day delay cause in preferring appeal may not be required to be explained. Each day delay cause in preferring appeal may not be required to be explained. But where on the facts set forth in the application supported by the affidavit the Court is satisfied that the applicant-appellant had no cause muchless sufficient cause for not preferring the appeal with in prescribed period of limitation it may not condone the delay caused in preferring the appeal. The explanation for the delay must be reasonable or satisfactory. Before condoning the delay caused in preferring the appeal the Court has to record its satisfaction that the explanation for delay furnished by the litigant is either reasonable or satisfactory. From the facts stated in this application I find that appeals preferred by the 15 co-passengers against the impugned order came to be allowed by this Court on 30. 9. 1997. In the said appeals this Court directed the insurer i. e. insurance company to pay to the respective claimants co-passengers the amount claimed by them under no fault liability under Sec. 140 of the Motor Vehicles Act, 1988. Only when this Court in the appeals of other claimants held Insurance Company liable for the payment of the amount of interim compensation, the applicant-appellant appears to have thought of filing of this appeal before this Court against the impugned order. In case the applicant-appellant really would have felt aggrieved of and interested to challenge the impugned order of the tribunal than the appeal could have been presented within prescribed period limitation as it is done by the other claimants. From the facts which born out from the applicant reasonably it can be inferred that the application appears to have been prompted for preferring this appeal against the impugned order from the judgment of this Court in the appeals of the other claimants preferred within limitation. In the case of P. K. Ramchandran vs. State of Kerala, 1997 (7) SCC 556 , their Lordships of Supreme Court held :"law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. Only where the Court is satisfied that the explanation for delay is either reasonable or satisfactory, which is an essential pre-requisite to condonation of delay, the delay caused in filing of the appeal can be condoned and not otherwise. Only where the Court is satisfied that the explanation for delay is either reasonable or satisfactory, which is an essential pre-requisite to condonation of delay, the delay caused in filing of the appeal can be condoned and not otherwise. Explanation furnished by the applicant-appellant can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of inordinate delay of 576 days. In the facts and circumstances of this case, I am not satisfied that any explanation, much less a reasonable or satisfactory one had been furnished by the applicant-appellant for condonation of the inordinate delay of 576 days caused in filing of the appeal. " ( 5 ) THIS matter needs to be examined yet from a different aspect. By declining of the tribunal to grant the interim compensation against the insurer, it is true that the applicant-appellant may not get immediate financial assistance. But the order of the tribunal on the liability of the Insurance Company to pay the interim compensation under sec. 140 of Act 1988, on the principle of no fault liability, is only tentative and not final. At this stage the tribunal is not adjudicating and deciding finally the respective rights and liabilities of the parties to the claim application. Merely because at the stage of considering the matter for grant of interim compensation the Tribunal has not passed order against the insurance company it does not stand exonerated once for all in the proceedings from its liability to indemnify the insured for his liability to pay compensation as finally ordered by the Tribunal. The immediate benefits which the applicant-appellant would have is otherwise also of no substance or significance in this case as she herself slept over her rights for about 576 days. Further it is not the case where the interim compensation has not been ordered in favour of the applicant-appellant. The tribunal ordered the owner of the offending vehicle to pay the claimant-applicant- appellant the amount of interim compensation as provided under Sec. 140 of the Act, 1988. ( 6 ) THE learned counsel for the claimant-applicant-appellant submits that the Tribunal may not decide the claim application for years together and though other victims of the accident have been received or would have received the amount of interim compensation, the applicant will not get any thing. till the matter is finally decided. ( 6 ) THE learned counsel for the claimant-applicant-appellant submits that the Tribunal may not decide the claim application for years together and though other victims of the accident have been received or would have received the amount of interim compensation, the applicant will not get any thing. till the matter is finally decided. It is further urged that the Tribunalis not deciding the claim application expeditiously and more than two years have alredt. been passed form the date of the accident but the Tribunal has not decided thematter finally. It is true that applicant may not get even a pie towards interim compensation but the fault lies with her as she has not filed appeal within limitation. The possibility of. getting encouragement of filing of the appeal after decision of this Court in the case of other claimants to make the insurance company liable for the payment of the interim compensation cannot be overruled, However this apprehension of the learned counsel for the applicant that the claim-applicant of the claimant may take years together to reach to its final adjudication cannot be said to be without any base or foundation. ( 7 ) THE rnotor accident claim cases are to be given priority in hearing and as far as possible have to be decided expeditiously, particularly the claim case where the amount of niterim compensation has not been awarded or awarded only against the owner and driver and same could not have been recovered. In these facts aforesaid I consider it to be a fit and proper case where the Tribunal concerned should be given directions to decide the motor accident claim petition, out which this appeal arises, expeditiously. ( 8 ) THOUGH the delay in filing of the appeal deserves not to be condoned and this civil application deserves to be dismissed and accordingly same is dismissed, however the motor Accident Claims Tribunal (Main), Rajkot is directed to decide the MACP No. 415 of 1996 within a period of six months from the date of receipt of copy of this direction and if it is not complied with and non- compliance thereof is brought to the notice of this court, it would be taken seriously. .