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2006 DIGILAW 735 (ORI)

NEW INDIA ASSURANCE CO. LTD. v. TARA PRADHAN

2006-10-25

N.PRUSTY

body2006
ORDER N. Prusty, J. - Heard 2. Mr. Rao, Learned Counsel for the Appellant and Mr. B.R Roy, Learned Counsel for the Respondent No. 1. 3. This application has been filed for condonation of delay since there is a delay of 334 days in filing of the appeal. 4. When this matter is taken up, Learned Counsel for the Appellant submits that since there is a delay in filing of the appeal and an application for condonation of delay has been filed, as usual notice may be issued to the Respondents on the question of limitation and thereafter-appropriate order may be passed in the matter. 5. Learned Counsel appearing on behalf of Respondent No. 1 submits that in this case the award was passed on 22.05.1998 and he appeal was filed on 19.07.1999, i.e. after about one year two months from the date of award with a delay of 334 days. No application for condonation of delay was filed along with memorandum of appeal intentionally to frustrate the benefit of the award passed by the Tribunal in favour of the claimant/Respondent and as such the poor claimant has not received anything out of the compensation amount till date even though in the meantime more than 8 years have passed from the date of the award in his favour. The petition for condonation of delay was filed seven years after filing of the appeal i.e. on 20.06.2006, only after the order was passed by his Court on 19.06.2006, to the effect that "steps for limitation shall be taken by Wednesday (21. 06. 06) as undertaken". The delay occurred in filing of the appeal has also not been properly explained by the Appellant. As such the petition for condonation of delay is liable to be rejected. Further more a bare perusal of the impugned award clearly indicates that there was no good ground available to the Appellant for challenging the award and as such on the grounds taken by the Appellant in the memorandum of appeal, the appeal is liable to be dismissed on merits also. 6. I have gone through the contents of the petition for condonation of delay as well as the grounds taken in the appeal. 6. I have gone through the contents of the petition for condonation of delay as well as the grounds taken in the appeal. In paragraph 3 of the petition for condonation of delay it has been stated as follows: That after passing of Judgment the dealing Advocate was requested to supply certified copy of impugned Judgment who after obtaining the same sent to the Insurance Company. The Insurance Company sent the file to the Regional Office Bhubaneswar for ascertainment of an award. The Regional Officer after perusing the impugned Judgment sent the file to the Divisional Office for filing of appeal before Hon'ble High Court. The Divisional Office after preparing the documents sent the file to the undersigned on 14.06.1999 and the appeal was filed with court fees of Rs. 167.50 ps. 7. The main grounds of challenge in this appeal are as follows: 4. ...the age of the deceased although was found to be 55 years in the post mortem report, the Learned Tribunal erred in law in holding that it would be between 55 to 60 years. 5. ...applying multiplier of 8... is not only excessive but also untenable. 6. ...the finding regarding income is based on conjectures and cannot be allowed to be sustained. 8. In the instant case the income of the deceased has been assessed as Rs. 750/- per month as a labourer and since he was aged about 55 to 60 years at the time of the accident/death multiplier 8 has been applied for assessment of the compensation, As such the award of Rs. 67,000/- can never be said to be in the higher side. As it appears the owner of the vehicle has not preferred any appeal challenging the impugned award. It is the Insurance Company, with whom the vehicle which caused the accident was insured, has filed this appeal challenging the quantum of the award, has been arrived at by the Learned Tribunal, on the ground of assessing the income of the deceased at a higher side as well as application of higher multiplier. An appeal, challenging the higher quantum of the award, if any, can be entertained in case it is at the instance of the owner of the vehicle but not at the instance of the insurer. The insurer of the vehicle is to indemnify the owner of the vehicle / insured. An appeal, challenging the higher quantum of the award, if any, can be entertained in case it is at the instance of the owner of the vehicle but not at the instance of the insurer. The insurer of the vehicle is to indemnify the owner of the vehicle / insured. It is only in case the insurer can establish that the owner of the vehicle/insured has connived with the claimant for the purpose of the award/higher quantum of award, then only the Insurance Company can file the appeal challenging the award and the same may be entertained. After going through the impugned award in detail, I do not find any illegality, irregularity or manifest error of law in the award, which would call for any interference of this Court, So far as the delay in filing the appeal is concerned, the grounds taken in the application for condonation of delay of 334 days, which was filed 7 years after presentation of the appeal as stated above, the days of delay have not at all been properly explained, with acceptable reasonings. 9. In view of the above, I am not inclined to entertain this appeal on merit nor I am inclined to issue notice on the question of limitation as submitted by the Learned Counsel for the Appellant and as, such the appeal is dismissed both on the ground of limitation as well as on merit. 10. The insurance Company is directed to deposit the entire awarded amount of Rs. 67, 000/- along with up-to-date interest at the rate as has been fixed by the Learned Tribunal keeping in view that the amount of award has not been deposited within 30 days of the award as directed and costs within a period of eight weeks from today, failing which the Insurance Company shall have to pay 2 % interest more in excess of the interest awarded fixed by the Tribunal, from the date of claim till the date of realization to meet the ends of Justice. Immediately after the entire amount is deposited, 30 % of such deposit shall be disbursed by the Learned Tribunal in favour of Claimant-Respondent, keeping balance 70 % of the amount in an unencumberable fixed deposit in the name of the claimant Respondent for a term of six years and no loan of any kind shall be sanctioned/disbursed in his favour by the concerned Bank during the entire period for which the money is kept in fixed deposit. 11. After the entire awarded amount along with interest is deposited before the Tribunal as directed above, the deposits which have already been made by the Appellant-Insurance Company before this Court along with up-to-date interest accrued thereon, be refunded to the Appellant on proper application. Final Result : Dismissed