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2014 DIGILAW 52 (KAR)

Nazeer @ Nazee Ahmed v. Chandrashekar Gowda

2014-01-17

N.K.PATIL

body2014
JUDGMENT 1. This appeal by the claimant is directed against the common judgment and award dated 15th September 2012, passed in MVC No.4541/2010, by the XXI Additional Judge, Member, Motor Accident Claims Tribunal, Court of Small Causes, Bangalore (SCCH-23), (for short, ‘Tribunal’) on the ground that the compensation awarded is on the lower side and liable to be enhanced. 2. Along with the appeal, learned counsel appearing for appellant has also filed I.A.2/2013, seeking condonation of delay of 216 days in filing the Appeal. 3. The delay of 216 days in filing the appeal has been explained at paragraphs 3 and 4 of the affidavit filed in support of the application, I.A.2/2013. The said paragraphs of the affidavit read thus: “(3). I further submit that the Tribunal disposed off the claim petition on 15th day of September 2012, my advocate applied for the certified copy of the judgment and awarded on 05/10/2012 and the same was obtained on 06/11/2012 and intimated to me in second week of November 2012. I visited the office during first week of December 2012 to obtain the certified copy. After obtaining the copy, I discussed with my family member that the award made by Tribunal is less and need to file appeal. The respondent is not deposit the award amount immediately filed execution petition before Tribunal. Due to injuries I am under rest for long time, suffering from financial difficulties and mental agony, pressure of work, illness. I was not able to visit my advocate office immediately. I visited my advocate office during third week of July 2013 to inquire about the award amount, my advocate intimated me that the execution petition was transfer to Ramnagar. I went there engaged advocate in Ramanagar, discussed with my advocate regarding filling of appeal. My advocate told that appeal ought have file with 90 days from the date of obtaining of judgment and award. The delay is caused due to the above said bonafide reasons and not intentional one. Hence, this application. (4). I have a good case on record and if this application is not allowed I will be put to loss and whereas no prejudice whatsoever will be caused to the other side if it is allowed.” 4. I have heard the learned counsel appearing for appellant and perused the statements made in the affidavit, accompanying the application, I.A.2/2013. 5. (4). I have a good case on record and if this application is not allowed I will be put to loss and whereas no prejudice whatsoever will be caused to the other side if it is allowed.” 4. I have heard the learned counsel appearing for appellant and perused the statements made in the affidavit, accompanying the application, I.A.2/2013. 5. Learned counsel appearing for appellant, apart from seeking condonation of delay in filing the appeal and also enhancement of compensation, on the ground that the compensation awarded is inadequate, vehemently submitted that the direction issued by Tribunal to the Respondent No.1 /owner to indemnify the award amount may be set aside and the said liability be fastened on the Insurer, to meet the ends of justice, for the reason that the insurance policy was in force as on the date of accident. 6. After going through the statements made in the affidavit filed in support of the application, I am of the considered view that the inordinate delay of 216 days in filing the appeal has not been explained satisfactorily by assigning valid and cogent reasons. The explanation offered at paragraphs 3 and 4 is in a very casual manner. Except making bald statements, no credible or trustworthy reasons are assigned for explaining the delay of 216 days in filing the appeal. Whenever there is inordinate delay, the party is bound to explain each day’s delay in filing the appeal by setting out the dates and events. No proper explanation is offered from the date of collecting the certified copy of the Judgment till the date of filing the appeal. In the absence of proper explanation for condoning the inordinate delay, no credibility can be given to the statements made in the affidavit. Hence, in view of non explanation of inordinate delay in filing the appeal, in a satisfactory manner, I am of the view that delay cannot be condoned nor the appellant has made out a good case to condone the delay. Hence, for the foregoing reasons, I.A.2/2013 is dismissed as misconceived. Consequently, the appeal filed by appellant is also liable to be dismissed. 7. However, in the interest of justice and equity, I have heard the learned counsel appearing for appellant on the merits of the case and perused the entire judgment and award passed by Tribunal. Hence, for the foregoing reasons, I.A.2/2013 is dismissed as misconceived. Consequently, the appeal filed by appellant is also liable to be dismissed. 7. However, in the interest of justice and equity, I have heard the learned counsel appearing for appellant on the merits of the case and perused the entire judgment and award passed by Tribunal. After perusal of the same, it is seen that, occurrence of accident and the resultant injuries sustained by the appellant are not in dispute. Further, it is not disputed that the appellant has sustained two grievous injuries and one simple injury as per Wound Certificate and was in-patient for a period of seven days from 23-03-2010 to 30-03-2010 for posterior dislocation of left hip joint and multiple facial laceration with eye lid laceration. He was treated conservatively. 8. Further, it can be seen that, the Tribunal, after evaluation of the oral and documentary evidence, has assessed the monthly income of the appellant at Rs.7,000/- per month. The same is just and proper and does not call for interference. Further, it can be seen that the Tribunal is also justified in awarding a sum of Rs.25,000/- towards injury, pain and sufferings, Rs.28,000/- towards loss of income during treatment period, Rs.15,133/- towards medical expenses as per the medical bills produced, Rs.20,000/- towards loss of amenities, discomfort and unhappiness and Rs.5,000/- towards conveyance, nourishing food and attendant charges. Hence, it does not call for interference. 9. The Tribunal, after critical evaluation of the oral and documentary evidence and also considering the age, avocation, year of accident, nature of injuries sustained, nature and duration of treatment undergone, has rightly awarded compensation of a sum of Rs.93,133/- for the injuries sustained by appellant. Hence, interference in the same is uncalled for. 10. 9. The Tribunal, after critical evaluation of the oral and documentary evidence and also considering the age, avocation, year of accident, nature of injuries sustained, nature and duration of treatment undergone, has rightly awarded compensation of a sum of Rs.93,133/- for the injuries sustained by appellant. Hence, interference in the same is uncalled for. 10. Further, so far as the submission of the learned counsel appearing for appellant that the direction issued to the Respondent No.1/owner to indemnify the award amount is liable to be set aside and is to be fastened on the Insurer is concerned, it can be seen that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has recorded a specific finding of fact at paragraph 18 of its judgment, placing reliance on Section 56 of the Motor Vehicles Act and Ex.R5, Form No.38 issued by the concerned RTO, stating that the offending vehicle was not having valid Fitness Certificate, at the time of accident on 22-03-2010. The said reasoning given by Tribunal is just and proper and does not call for interference, for the reason that, in the absence of valid Fitness Certificate, there is no valid registration at all and hence, the Insurer cannot be held liable. Further, Section 56 of the Motor Vehicles Act is very clear in stating that a Transport vehicle shall not be deemed to be validly registered for the purpose of Section 39, unless it carries a Certificate of Fitness in such form containing such particulars and information as may be prescribed by the Central Government issued by the Prescribed authority. Therefore, I do not find any justification or good ground as such made out by appellant to interfere in the direction issued by the Tribunal to the Respondent/owner to indemnify the award amount. 11. For the foregoing reasons, the appeal filed by appellant is dismissed on the ground of delay and laches as also on merits.