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2007 DIGILAW 249 (JK)

Oriental Insurance Co. Ltd. v. S. D. Sahare

2007-11-14

J.P.SINGH

body2007
1. All these petitions preferred by Oriental Insurance Company Limited seek condonation of delay in filing appeals against award dated 29-01-2005 of Motor Accidents Claims Tribunal Jammu, allowing Claim Petition nos. 161, 173, 280 & 279, awarding an amount of Rs.75,000/-, Rs.1,22,000/-, Rs.5,18,000/- and Rs.1,13,000/, respectively along with interest @ 9% per annum pendente lite and till its realization. 2. All the claimants had been traveling by Bus No. JKU-4571 on their journey to Patnitop on 02-04-2000, when because of the rash and negligent driving of the driver, it rolled down into a nallah resulting in the death of many, including the wife of respondent Arun Kumar T.Pancholi and injuries to others, including the respondents. Respondent Kalavani had to loose her five months old foetus, besides suffering damage to her spleen and receiving injuries on other parts of the body which considerably reduced existing force in the left hand and left foot because of which she was permanently disabled to earn her living. Respondent S.D.Sahare, who was working as a Warrant Officer in 908 FPO C/o 56 A.P.O and getting a salary of Rs.8000/- per month, suffered multiple fractures over his body, which resulted in reduction of power in his left hand and left foot. 3. To decide the rival contentions of the parties, the Tribunal had framed four issues which read thus:- 1. "Whether an accident took place on 2.4.2000 at Jhajar Kotli due to rash and negligent driving by respondent No.1 causing bodily injuries to petitioners Kalavani, S.D.Sahare, Arun Kumar, Ratna Mala and death of Aruna Pancholi who was traveling by the Bus No.JKU/4571? OPP 2. If issue no. 1 is proved in affirmative what is the amount of compensation to which the petitioners are entitled to and from whom? OPP 3. Whether the erring driver was not in possession of a valid and effective driving licence and as such the insurance company is not liable to indemnify the insured? OPR-1 4. Relief. O.P. Parties." 4. Because the appellant-Insurance Company had not led any evidence in the case, so, relying upon the claimants evidence, the Tribunal passed an award on 29-01-2005, awarding compensation in favour of the respondents as mentioned in the opening part of this order. 5. The appellant-Insurance Company did not prefer any appeal to question the award within the statutory period of limitation. Because the appellant-Insurance Company had not led any evidence in the case, so, relying upon the claimants evidence, the Tribunal passed an award on 29-01-2005, awarding compensation in favour of the respondents as mentioned in the opening part of this order. 5. The appellant-Insurance Company did not prefer any appeal to question the award within the statutory period of limitation. It is after about four hundred and eight (408) days that the appellant company filed appeals in this Court along with applications seeking condonation of thirty four (34) days delay in filing the appeals. 6. As similar pleas have been made by the Insurance Company seeking condonation of delay in filing appeals in all these four petitions, so all of them had been taken up for joint consideration. Before considering the submissions made by learned counsel for the parties at the Bar, regard needs to be had to the ground pleaded by the Insurance Company to seek condonation of delay. 7. Paragraph nos. 2 to 5 of six paragraphed application of the Insurance Company read thus:- "2. That the award impugned was passed on 29-01-2005, but the copy of the same has been supplied by the MACT, Jammu only on 12-3-2003. The certified copy of the award impugned has been received in the Divisional Office on 15-03-05 through its defending counsel. Subsequently, after getting the complete record the file was submitted to the Regional Office at Ambala for his legal opinion. But unfortunately during transit the file was misplaced and it was traced on 25.5.2006. Accordingly, on receipt of the file the defending counsel has been directed to file CIMA, who according drafted the CIMA and filed in the Honble Court. 3. That in the connected cases the appeals are filed which are admitted to hearing. 4. That the delay in filing the appeal is neither intentional nor deliberate but because of the circumstances as referred above. 5. That there is delay of 34 days delay in filing the above appeal and the same if not condoned, the petitioner will suffer an irreparable loss and the respondents will get the benefit of the award, which is not sustainable under law." 8. Mr. 5. That there is delay of 34 days delay in filing the above appeal and the same if not condoned, the petitioner will suffer an irreparable loss and the respondents will get the benefit of the award, which is not sustainable under law." 8. Mr. Baldev Singh, learned counsel for the appellant, submits that the Divisional Office of the Oriental Insurance Company had sent the case file to its Regional Office which got misplaced because of which the Company could not file the appeals within the prescribed period of limitation. The delay in filing the appeals, according to the counsel, was neither deliberate nor intentional and had occasioned because of the circumstances which were beyond the control of the appellant-Company. 9. Mr. R.K.Bhatia, learned counsel for the claimants, on the other hand, submits that the appellant is the major litigant in cases arising out of Motor Vehicular Accidents and is well aware about the consequences of non-filing of appeal within the prescribed period of limitation. It cannot, therefore, be expected of such a litigant to sit silent in the matter of filing appeals against an award which allows compensation in five Claim Petitions, unless it had no intention of filing appeal against the award where it had failed to lead any evidence to controvert the claim and proof led in support thereof by the claimants. Learned counsel submits that the ground urged by the petitioner in the application is a self serving ground, coined to facilitate the filing of appeals which are bereft of any substance. Learned counsel further argues that delay in filing appeals particularly in those cases where awards of compensation have been made in favour of the victims of Motor Vehicular Accidents, cannot be condoned as a matter of course and strong grounds are required to be made out by a litigant, like Insurance Company, to seek condonation of delay. Learned counsel further argues that delay in filing appeals particularly in those cases where awards of compensation have been made in favour of the victims of Motor Vehicular Accidents, cannot be condoned as a matter of course and strong grounds are required to be made out by a litigant, like Insurance Company, to seek condonation of delay. Learned counsel submits that when the owner of the offending vehicle had chosen not to file any appeal against the award and no appeal had been preferred by the Insurance Company for more than one year, despite its being aware of an award having been passed against it, interest of justice would demand refusal of the prayer of the Insurance Company seeking condonation of delay in filing the appeals, particularly when nothing had been stated by the Insurance Company in its petition about the steps taken by it towards filing the appeal within the prescribed period of limitation and the circumstances which had prevented it from doing so. 10. Perusal of Insurance Companys petitions seeking condonation of delay shows that it had failed to spell out the steps which had been taken by it to ensure filing of appeals within the prescribed period of limitation and the circumstances which had allegedly disabled it from filing appeals within the prescribed period of limitation. It has failed to indicate as to what had it been doing for more than one year of its having known that an award had been passed against it by the Tribunal, holding it liable to indemnify the owner of vehicle No. JKU-4571 in discharging his liability to pay the awarded amount to the claimants who had suffered injuries, besides death of one of the claimants wife. 11. The Company appears to have been casual in drafting its applications indicating thirty four (34) days delay in filing the appeals, whereas, going by the noting of the Registry, delay in filing the appeals is of four hundred and eight (408) days. 12. Mr. Bhatia, therefore, appears to be right in saying that the Insurance Company, a major litigant in cases arising out of Motor Vehicular Accidents and with the legal paraphernalia at its command, cannot be expected to sit silent for more than a year in respect of an award which had held it liable to indemnify the owner, unless it had decided not to file appeals against the award. 13. 13. Expiry of period of limitation prescribed for filing appeal in a contested matter, particularly in those cases where claims are allowed under the Motor Vehicles Act, in favour of the injured or those who are left behind to suffer because of the death of their bread winner, vests a valuable right in the claimants which cannot be taken away on mere ipsi dixit of the party loosing the litigation. Strong reasons are, therefore, required to be spelled out by such appellant seeking condonation of delay in filing the appeal. It is further required to indicate the steps taken by it to ensure filing of appeal within the prescribed time and the circumstances which had prevented it from filing the appeal within the prescribed period of limitation. 14. The ground urged by the Insurance Company to seek condonation of delay does not indicate its awareness that the appeals had to be filed within the prescribed period of limitation and about the efforts and steps taken by it to ensure that no delay was caused in filing the appeals within the prescribed period of limitation as also the factors which despite its having taken steps to file appeal within the prescribed period of limitation had disabled it to file the appeal. 15. The Insurance Company has not placed any material on records either, on the basis whereof it may be said that it had all along been aware that it had to file the appeal within the prescribed period of limitation and that it had taken requisite steps needed for filing such appeals, or to expedite the reconstruction of records which are stated to have been allegedly lost in transit when the file had been sent to the Regional Office and despite taking all steps, it had been disabled because of one or the other reasons to file the appeal within the prescribed period of limitation. 16. 16. Spelling out of the difficulty or the purported genuine cause which had disabled an Insurance Company or, for that matter, any other authority which acts through its impersonal machinery, to file an appeal within the prescribed period of limitation, or the discernment of such cause from any other material on records thus becomes necessary because in its absence the Court may be disabled to find out as to whether the difficulty or the cause projected was a genuine cause justifying condonation of delay or was a self invited or misconceived cause which may not, in the given facts and circumstances of a case, warrant consideration for allowing condonation of delay and deprivation of a party of its right which had accrued to it because of the omission of the opposite party to file the appeal within the prescribed period of limitation. 17. Appellant-Insurance Company has neither projected nor spelled out any such cause or genuine difficulty in the present case which had disabled it from filing its appeals within the prescribed period of limitation. Its long wait for more than a year for receipt of its files from its Regional Office, without having taken any steps for reconstruction of records so as to file appeals within the shortest possible time, cannot be accepted as a genuine/sufficient cause which may be said to have disabled it from filing appeals within the prescribed period of limitation justifying condonation of delay. 18. I am supported in taking this view by a Division Bench Judgment of this Court in Condonation of Delay (C) 205/05 c/w LPA (C) 67/05, National Insurance Co. vs. Sep. Bhagirath Singh and ors decided on 13.12.2005, where, the Bench observed as follows:- "Grounds raised by the appellants do not exhibit any cause muchless sufficient, which appears to have prevented the Company in filing the appeals within prescribed time of limitation. On the other hand, the grounds only show the route, which the files appear to have taken before the appeals, came to be filed in this Court. The appellant, it appears, has multipolar legal hierarchy, which the appellant urges that a file has to travel before a final decision, as to the filing or otherwise of an appeal, is taken by the Company. The appellant, it appears, has multipolar legal hierarchy, which the appellant urges that a file has to travel before a final decision, as to the filing or otherwise of an appeal, is taken by the Company. In other words it suggests that the Company has devised its own procedure for taking a decision as to whether or not an appeal be filed against a decision of the Court. If this practice, which has been adopted by the Company, has to be accepted, then one has to do that at the cost of the prevailing law of the land which does not contemplate providing more than three months time to a litigant to consider as to whether or not, it wanted to file an appeal against the judgment of a Court. The Company cannot, in our opinion, be permitted to have a separate period of limitation for its appeals. The Insurance Company cannot be treated differently from an ordinary litigant. The appellant Company possessed of the requisite legal expertise knows fully well that if an appeal is to be filed, it is required to be so filed within the prescribed period of limitation. Proviso appended to Section 173 of the Motor Vehicles Act, 1988, does not contemplate the condonation of delay on such self invited, disabling grounds to seek condonation of delay. What is contemplated by second proviso of Section 173 of the Motor Vehicles Act, 1988, is the "sufficient cause", which prevents a litigant from filing an appeal. This sufficient cause, cannot be countenanced as cause invited by a litigant on his own. Sufficient cause contemplated by proviso to Section 173, is an unforeseen act or event because of which a litigant is prevented in filing appeal within the statutory period of limitation. Appellants-Company has failed to project any such cause unexpected or unforeseen as is contemplated by Section 173 of the Motor Vehicles Act, 1988. Applications filed by the applicants, appellants, were, thus, misconceived. We have examined the reasoning given by the learned Single Judge. We are satisfied with the order passed by the learned Single Judge. The order impugned in the appeals, thus, does not call for any interference. The appeals are, accordingly, rejected." 19. Applications filed by the applicants, appellants, were, thus, misconceived. We have examined the reasoning given by the learned Single Judge. We are satisfied with the order passed by the learned Single Judge. The order impugned in the appeals, thus, does not call for any interference. The appeals are, accordingly, rejected." 19. Petitions filed by the Insurance Company, which do not spell out requisite details as to what the Company had been doing sitting silent for more than a year, what steps had it taken to ensure filing of appeals within the prescribed period of limitation or within the shortest period of time and which were those circumstances which had prevented it from filing appeals within the prescribed period of limitation, do not, therefore, deserve liberal consideration for condoning delay in filing the appeals and depriving the claimants of the right which has accrued to them because of the omission of the Company to file appeals within the prescribed period of limitation. 20. These applications are thus found to be without any merit and are accordingly, dismissed. 21. Resultantly the appeals and connected application too shall stand dismissed. 22. A copy of this order shall be placed on each file.