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2011 DIGILAW 1597 (PAT)

State of Bihar v. Bhatni Devi

2011-08-01

RAKESH KUMAR

body2011
Order Heard Shri J.S. Arora, learned Standing Counsel No.6, appearing on behalf of the appellants on Interl0cutory Application i.e. I.A. No. 2820 of 2010 filed under Section 5 of the Limitation Act for condoning the delay in filing Misc. Appeal No. 234 of 2003. In preferring the present appeal against an award dated 4.9.2001 in M. V. Case Nos. 45 of 1997/59 of 1998 about 1 % years delay has occurred. 2. The appeal under Section 173 of the Motor Vehicles Act was filed on 10.7.2003 whereas limitation expired on 27.12.2001. The respondent nos.1 to 4, after the death of husband of respondent no.1, which occurred in a motor vehicle accident on 11.4.1997, had filed a claim case under the provisions of the Motor Vehicles Act, which was numbered as M.V. Case Nos. 45 of 1997/59 of 1998. At the relevant time, the deceased was clerk in the Tubewell Division, Minor Irrigation Department, Nawadah and while on official duty, he was traveling in official jeep, the jeep met with an accident with a Truck bearing Registration No. BR-17G-8338. The learned court below allowed the claim petition and directed the National Insurance Company and the appellants to pay compensation amount of Rs. 5,91,976/- to the claimants. Out of the total compensation amount, the Insurance Company was directed to share 70% and the appellant Executive Engineer was directed to compensate to the extent of Rs. 30%. The total amount, which was to be paid by Insurance Company was Rs. 4,14,383/and the appellants were directed to pay Rs. 1,77,593/-. Against the said award, the present appeal has been preferred at much belated stage. In the limitation petition, a stand has been taken by the appellants that appellants were not aware regarding the pendency of the claim case. Only after initiation of the certificate 'proceeding, they came to know that award was prepared against the appellants and thereafter, the present appeal was preferred. In the limitation petition, no specific date has been mentioned. However, fact remains that the appeal was preferred after more than 1 % years from the date of award. 3. In this case, a rejoinder to memo of appeal has been filed on behalf of the claimants i.e. respondent nos. 1 to 4. Alongwith the rejoinder, the respondents have brought on record number of documents to show that appellants were well aware regarding the pendency of the claim case. 3. In this case, a rejoinder to memo of appeal has been filed on behalf of the claimants i.e. respondent nos. 1 to 4. Alongwith the rejoinder, the respondents have brought on record number of documents to show that appellants were well aware regarding the pendency of the claim case. From Annexure-B to the rejoinder i.e. photocopy of a notice published in a Hindi newspaper namely, Aryabarta dated 23rd February, 2000, it appears that notice to the appellants were affected through substituted service. It further appears from Annexure-C to the rejoinder that the Executive Engineer, who is the appellant no.2 in the present appeal was well aware regarding the pendency of the claim case and he had informed the claimant regarding the date in the claim case before the court below. Specific averment has been made in the rejoinder that the appellants were well aware regarding the filing of the claim case and in the said case, notice was also validly served on the appellants. Even in such facts and circumstances, while filing limitation petition, incorrect statement was made by the appellants and a new case was made out that neither they were noticed nor they were aware regarding the filing of the claim case and only after initiation of the certificate proceeding, they noticed that such award was prepared. In this case, a supplementary affidavit has been filed on behalf of the appellants. 4. Shri Arora, learned counsel for the appellants, while referring to averment made in the supplementary affidavit, submits that from the facts and circumstances, it is evident that intentionally the appellants had not suppressed the fact in the limitation petition. 5. Be that as it may, fact remains that the appellants were well aware regarding the filing of the claim case, which is evident from Annexures-B and C to the rejoinder filed on behalf of the respondents/claimants. In ordinary course, .the court is not interested to reject the appeal on only ground of limitation, but in the facts and circumstances of the present case, the court is of the opinion that the appeal can be rejected on the ground of limitation itself due to the reason that in the limitation petition, incorrect rather false statement was made and as such the appeal stands rejected on the ground of limitation itself. 6. 6. In view of rejection of the appeal, the statutory amount deposited by the appellants at the time of filing of the appeal shall be remitted back to the court below for its payment to the claimants.