New India Assurance Company Ltd. v. Abdul Latif and Anr.
2015-03-04
N.CHAUDHURY
body2015
DigiLaw.ai
1. An application has been filed under Section 5 of the Limitation Act, 1963 praying for condoning delay of 182 days in preferring connected appeal under Section 30 of the Employees Compensation Act, 1923. Under Section 30 (2) of the Employees’ Compensation Act, 1923 (herein after referred to as ’Act’) the period of limitation for an appeal is 60 days. However, by Clause-(3) of the same Section, provision of Section 5 of the Limitation Act, 1963 has been made applicable thereby conferring jurisdiction on appellate court to extend the period of limitation if sufficient cause for not preferring the appeal in the statutory period is furnished. Obviously, this power is discretionary in nature and so necessarily it involves exercise with circumspection and caution as well. It is true that by preponderance judicial pronouncements in connection with exercise of power under Section 5 of the Limitation Act, adapting liberal approach has been highlighted but this does not mean that any and every application filed under Section 5 of the Limitation act has to be allowed. Obviously there is a responsibility on the court to see that a grossly negligent appellant should not be given the benefit of Section 5 of the L.A.Act. This being broad outline of the exercise of power for extension of time of limitation under Section 5 of the Act, it needs to be seen as to whether in the case in hand, appellant has disclosed sufficient cause warranting exercise of discretionary power of this Court. 2. New India Assurance Co. Ltd. is the appellant petitioner in the present case seeking to challenge the judgment and award dated 23.11.2012 passed by the Workmen’s Compensation Commissioner ( for short ‘W.C.Commissioner’), Kamrup, at Guwahati in W.C. Case No.21 of 2010. By that award the claim petition of one Abdul Latif, workmen was allowed by W.C. Commissioner directing the Insurance Company to make payment of Rs.1,37,636/- along with interest @ 12 % per annum if the payment is not made within the period of 30 days from the date of its falling due. In the application, it is stated in para-3 that appeal under normal circumstances ought to have been presented on 28.2.2013, but for reasons to be mentioned in later paragraphs a delay of 182 days has been caused.
In the application, it is stated in para-3 that appeal under normal circumstances ought to have been presented on 28.2.2013, but for reasons to be mentioned in later paragraphs a delay of 182 days has been caused. Paragraph-4 and 5 of the application show that on receiving a copy of the judgment and order , company was in a dilemma because at that stage only it came to light of the Insurance company that driving licence of the workmen concerned was issued for non-transport vehicle from 27.2.1991 to 26.2.2011 and as transport vehicle from 25.8.2010 to 24.8.2013 on the basis of the report which was issued by the DTO, Kamrup. From this disclosure it came to knowledge that workmen drove the vehicle unauthorisedly at the relevant time when the accident had taken place on 18.9.2009. At that time, he was holder of a licence for driving non-transport vehicle only. The concerned officer was unhappy at the report submitted by the dealing advocate and so sought opinion from the High Court advocate on law point involved in the matter. However, when was this opinion asked for is not disclosed in para-4. Para-5 discloses a cavalier attitude of the appellant. It states that processing of papers from one office to another and from one table to another took time and it could not be prevented since procedural delay are inevitable and could not be eliminated altogether. With these averments on facts prayer has been made for condoning delay of 182 days. 3. It appears that earlier the matter came up for consideration before this court whereupon this court might have expressed dis-satisfaction over lack of proper pleadings in the application under Section 5 of the L.A.Act but for which an affidavit placing additional fact was filed on 2.9.2014. This affidavit has been sworn by someone working as Manager in the Guwahati Regional office of the Insurance company . The fresh facts submitted by this additional affidavit are that although judgment and award was passed on 23.11.2012, the copy of the same was received by North East Regional Office of the appellant on 30.11.2012. Thereafter, the regional office sought opinion from its dealing advocate who on turn gave opinion on 1.1.2013. Now getting of certified copy of the regional office is on 30.11.2012 and opinion is given by advocate on 1.1.2013.
Thereafter, the regional office sought opinion from its dealing advocate who on turn gave opinion on 1.1.2013. Now getting of certified copy of the regional office is on 30.11.2012 and opinion is given by advocate on 1.1.2013. But there is no explanation as to why this period of about one month was necessary for that purpose. Pleading is insufficient to the extent as to when was the opinion of the dealing advocate sought for. On the next paragraphs, it is mentioned that after obtaining opinion of the dealing advocate, regional office vide letter dated 16.1.2013 again sought opinion from its dealing advocate on some points and the dealing advocate submitted report on 22.2.2013. If the dealing advocate had already given his opinion on 1.1.2013 then why review of the opinion was asked for on 16.1.2013 and on what ground the report was furnished after expiry of more than one month thereafter on 22.2.2013 ?. It is a matter of further concern that even if the regional office had received opinion of dealing advocate on 22.2.2013, the appeal was not immediately preferred or not even sent to the advocate at High Court. The matter remained in hibernation for nearly two months and on 2.4.2013 regional office again sought opinion from its panel advocate in the High Court who advised about the next course of action. The High Court advocate on turn gave his opinion and thereafter on 24.7.2013 suggested to file an appeal in view of binding decision of the Apex Court and that it was a fit case for appeal. New Indian Insurance Company is a veteran in the field of insurance business and it must be aware that there is a provision of appeal under Section 30 of the E.C.Act, 1923. The reason as to why it became necessary for the regional office of a nationalized insurance company to know the next course of action from advocate of its High Court panel is not understood. Be that as it may, after High Court advocate disclosed that an appeal lies, the appeal was not even immediately filed thereafter. What did the regional office do is that it went on deliberating about the matter and ultimately took decision to prefer an appeal and asked the concerned advocate to prepare memorandum of appeal on 16.5.2013. Two months thereafter on 24.7.2013 filing of an appeal became materialized to the High Court.
What did the regional office do is that it went on deliberating about the matter and ultimately took decision to prefer an appeal and asked the concerned advocate to prepare memorandum of appeal on 16.5.2013. Two months thereafter on 24.7.2013 filing of an appeal became materialized to the High Court. In the process an inordinate delay of 182 days has been caused. 4. Another question necessarily arises herein is that the insurance company must be aware that appeal lies to High Court. In that event inspite of asking opinion from the dealing advocate of the trial court, it was open for the regional office to place the matter before its High Court advocate immediately after 30.11.2012 when the file became available to the regional office as per averment made in para-4 of the additional affidavit dated 2.9.2014. The insurance Company was aware that ultimately appeal was to be preferred by its panel advocate of High Court and not that of trial court. This attitude of the insurance company , therefore, necessarily discloses cavalier attitude which is not short of laches and negligence. This being the factual background, this court finds it difficult to satisfy itself that the appellant insurance company has succeeded to make out sufficient cause within the meaning of Section 5 of the L.A. Act ,1963 warranting extension of the statutory period of limitation. 5. Workmen’s Compensation Act, 1923 is beneficial piece of legislation to bail out a workman in distress arising from untoward accident at workplace. The law, therefore, requires all concerned to be vigilant about such background facts of the legislation and so an extra amount of caution and promptness is warranted from all concerned. A nationalized insurance company like the one in hand being s State within the meaning of Article 12 of the Constitution of India has additional responsibility for acting in safeguard of the statutory provision worked out by legislature for benefit of poor and neglected section of the society. If the aforesaid narrated facts are taken in a lenient and too liberal view, in that event there may not be much financial hardship to the appellant insurance company but this may result in a real tough time for the concerned workman who along with family members must be waiting for the money to come not for luxurious reason but to satisfy its bare minimum needs for survival.
Section 5 of the Limitation Act therefore, under such circumstances has to be viewed with such considerations in the mind as well. It is true that the law of limitation is founded on public policy and the legislature does not prescribe limitation with the object of defeating the rights of the parties but to ensure that they did not resort to dilatory tactics and seek remedy without delay. It is equally true that expression of sufficient cause under Section 5 of the LA Act cannot be described in straight jacket formula and it has to depend upon facts and circumstances of each case. In an appropriate case, the court is duty bound to adopt a liberal approach in condoning delay of short duration and strict approach is discouraged by Hon’ble Supreme Court in a number of judicial pronouncements. For instance the law laid down in the case of Collector, Land Acquisition , Anant Nag –vs- Katiji & Ors. reported in ( AIR 1987 SC 1353 ) can be referred. This view was subsequently followed in case of N. Balakrishnan –vs- M Krishnamurthy reported in ( 1998 7 SCC 123 ), Vedavai-Vs-Shantaram Baburao Patil reported in (2001) 9 SCC 106 . Subsequently, in the case of G.Rama Gowda – vs- Special Land Acquisiton Officer reported in (1988) 2 SCC 142 , Hon’ble Supreme Court observed that some amount of leniency has to be shown to the State because of well known red-tapisim prevalent in the Government Office. That was a case in regard to the function of office of Collector . But in the present case, it is the case of a Public Sector Undertaking which has entered the realm of commerce in insurance business. The yardstick, therefore, as required to be taken for the State in discharge of sovereign function will definitely be different from the one taken by a State acting in the realm of commerce. Perhaps this is why in the Division Bench judgment of this court in the case of Union of India –vs- Wood Craft Products Ltd. & ors. reported in (2000) 1 GLT 34, the Division Bench did not feel inclined to condone delay of 118 days in an appeal preferred by Union of India and did not entertain the appeal. Application for condoning delay was rejected.
reported in (2000) 1 GLT 34, the Division Bench did not feel inclined to condone delay of 118 days in an appeal preferred by Union of India and did not entertain the appeal. Application for condoning delay was rejected. Ultimately, it was held that law of limitation has to be applied with all its rigour prescribed by statute and that courts have no power to extend the period of limitation on equitable ground. In so doing the Division Bench placed reliance in the case of PK Ramchandra – vs- State of Kerala reported in ( AIR 1998 SC 2276 ) . 6. Considering the facts and circumstances of this case, this court does not feel inclined to exercise the power of discretion under Section 5 of the Limitation Act. Consequently, the application fails and it is rejected. The appeal is also dismissed as barred by limitation. 7. This misc. case accordingly stands dismissed.