Order : P.S. Rana, J. Applicants filed application under Section 5 of Limitation Act for condonation of delay in filing the appeal under Section 173 of Motor Vehicles Act relating to award passed by Motor Accident Claims Tribunal-II Solan announced in Petition No. 13-S/2 of 2008 decided on dated 4.12.2008 titled Rajesh Kumar vs. Jagdish Chand and others. Award was passed on dated 4.12.2008 and present appeal filed on dated 4.10.2013. Appeal was returned with objections and thereafter same was filed on dated 16.04.2014. It is pleaded that CMPMO No. 355 of 2009 titled Oriental Insurance Company Ltd. and others vs. Motor Accident Claims Tribunal-II Solan was filed before Hon’ble High Court of H.P. and Hon’ble High Court of H.P. vide order dated 26.4.2012 held that no order was required to be passed in view of decision of Hon’ble Supreme Court in United India Insurance Co. Ltd. vs. Shila Datta and others reported in 2011 ACJ 2729 . It is pleaded that thereafter again the matter was listed before Hon’ble High Court of H.P. on dated 11.6.2013 and Hon’ble High Court of H.P. had passed the order that case was wrongly listed because petition already decided by Hon’ble High Court of H.P. on dated 26.4.2012. It is pleaded that after seeking requisite approval from higher authorities the case was recommended for filing the appeal and immediately thereafter present appeal was filed. Prayer for condonation of delay sought. 2. Per contra response filed on behalf of non-applicants pleaded therein that applicants are estopped from filing the present application on account of the fact that matter already stood decided by Hon’ble High Court in CMPMO No. 355 of 2009 on dated 26.4.2012 and 11.06.2013. It is further pleaded that on dated 26.4.2012 and 11.6.2013 case was decided by Hon’ble High Court of H.P. in presence of learned Advocate appearing on behalf of Oriental Insurance Company and further pleaded that Hon’ble High Court of H.P. did not grant any liberty to applicants to file fresh appeal on same cause of action. It is also pleaded that in view of above stated facts application filed under Section 5 of Limitation Act be dismissed. 3. On dated 9.1.2015 following issues were framed:- 1. Whether there are sufficient grounds to condone the delay as alleged? ….Onus upon applicants. 2. It is also pleaded that in view of above stated facts application filed under Section 5 of Limitation Act be dismissed. 3. On dated 9.1.2015 following issues were framed:- 1. Whether there are sufficient grounds to condone the delay as alleged? ….Onus upon applicants. 2. Whether applicants have no cause of action to file the application under Section 5 of Limitation Act as alleged? ….Onus upon non-applicants 3. Relief. 4. Applicants examined following oral witnesses:- Sr.No. Name of the witness Ms. Monika Saini Sh. V.S. Dadwal 4.1 Applicants tendered following documentary evidence:- Exhibit Description of exhibit Ext.AW1/A Copy of CMPMO No. 355 of 2009 filed under Article 227 of Constitution of India. Ext.AW1/B Copy of order dated 26.4.2012 passed in CMPMO No. 355 of 2009 passed by H.P. High Court. Ext.AW1/C Copy of order dated 11.6.2013 passed in CMPMO No. 355 of 2009 by H.P. High Court. Ext.AW2/A Authorization letter. Ext.AW2/B Copy of letter dt. 12.9.2013 Ext.AW2/C Copy of letter dated 22.3.2014. Ext.AW2/D Copy of letter dt. 24.3.2014 Ext.AW2/E Copy of letter dt. 1.4.2014. 5. Court heard learned Advocate appearing on behalf of the applicants and learned Advocates appearing on behalf of the non-applicants and also perused the record carefully. 6. Testimonies of oral witnesses:- 6.1 AW1 Ms. Monika Saini Junior Assistant in High Court of H.P. has stated that she has brought record of CMPMO No. 355 of 2009 titled Oriental Insurance Company Ltd. vs. MACT-II Solan and this petition was instituted on dated 27.4.2009. She has stated that certified copy of petition is Ext.AW1/A which is correct as per record. She has stated that copy of order dated 26.4.2012 is Ext.AW1/B which is correct as per original record. She has stated that copy of order dated 11.6.2013 is Ext.AW1/C which is also correct as per original record. She has stated that on dated 21.3.2014 last order was passed and certified copy of award was declined on the ground that same had formed the part of petition. 6.2 AW2 Shri V.S. Dadwal Assistant Manager Oriental Insurance Company has stated that he is duly authorized by the company vide authorization letter Ext.AW2/A. He has stated that he has brought record pertaining to case CMPMO No. 355 of 2009 titled Oriental Insurance Company Ltd. vs. MACT-II Solan. 6.2 AW2 Shri V.S. Dadwal Assistant Manager Oriental Insurance Company has stated that he is duly authorized by the company vide authorization letter Ext.AW2/A. He has stated that he has brought record pertaining to case CMPMO No. 355 of 2009 titled Oriental Insurance Company Ltd. vs. MACT-II Solan. He has stated that applicants have filed petition under Article 227 of Constitution of India challenging the award passed by MACT-II Solan titled Rajesh Kumar vs. Jagdish Chand and others. He has stated that company received a letter on dated 12.9.2013 informing that case was decided on dated 26.4.2012. He has stated that company was advised to file fresh appeal. He has stated that after seeking permission from higher authorities he instructed the Advocate to file appeal. He has stated that thereafter again on dated 22.3.2014 he received communication from Advocate that certified copy could not be available from High Court. He has stated that Advocate advised them to obtain another certified copy of award from MACT-II Solan itself. He has stated that on dated 24.3.2014 he wrote to Advocate Shri Ravinder Tikku at Solan to obtain certified copy of award which was received by company on dated 4.4.2014. He has stated that immediately he advised the Advocate to file appeal. He has stated that delay on the part of company is not intentional but due to above stated facts. He has stated that copy of letter dated 12.9.2013 is Ext.AW2/B, letter dated 22.3.2014 is Ext.AW2/C, letter dated 24.3.2014 is Ext.AW2/D and letter dated 1.4.2014 is Ext.AW2/E. He has stated that these letters are true and correct as per official record. He has denied suggestion that he did not mention the correct facts in application and also denied suggestion that he has filed the wrong application under Section 5 of Limitation Act. 7. Non-applicants did not adduce any oral evidence in rebuttal. Findings on issue No.1 8. Submission of learned Advocate appearing on behalf of applicants that there are sufficient grounds for condonation of delay under Section 5 of Limitation Act is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that Oriental Insurance Company had filed CMPMO No. 355 of 2009 before Hon’ble High Court of H.P. against award passed by MACT-II Solan in petition No. 13-S/2 of 2008 titled Rajesh Kumar vs. Jagdish Chand and others which was decided on dated 4.12.2008. It is proved on record that Oriental Insurance Company had filed CMPMO No. 355 of 2009 before Hon’ble High Court of H.P. against award passed by MACT-II Solan in petition No. 13-S/2 of 2008 titled Rajesh Kumar vs. Jagdish Chand and others which was decided on dated 4.12.2008. It is proved on record that Hon’ble High Court vide order dated 26.4.2012 dismissed CMPMO No. 355 of 2009 in view of decision of Hon’ble Apex Court of India announced in United India Insurance Company Ltd. vs. Shila Datta and others reported in 2011 ACJ 2729 . It is also proved on record that thereafter CMPMO No. 355 of 2009 was again listed before Hon’ble High Court on dated 11.6.2013 and Hon’ble High Court of H.P. has held that petition already stood decided vide order dated 26.4.2012 and dismissed the petition. Oriental Insurance Company did not challenge the orders of Hon’ble High Court of H.P. dated 26.4.2012 and dated 11.6.2013 announced in CMPMO No. 355 of 2009. Order dated 26.4.2012 and order dated 11.6.2013 passed by Hon’ble High Court of H.P. announced in CMPMO No. 355 of 2009 have attained the stage of finality. No permission sought by applicants to file appeal on same cause of action. As per Section 173 of Motor Vehicles Act 1988 any person aggrieved by an award of Claims Tribunal may within 90 days from the date of award can prefer appeal before Hon’ble High Court. Oriental Insurance Company had employed well educated staff who is well equipped with law. Oriental Insurance Company has also engaged law officers for guidance relating to Court matters. It is proved on record that petitioner had sustained 35% permanent disability of upper left limb. It was held in case reported in AIR 1962 SC 361 titled Ramlal and others vs. Rewa Coalfields Ltd. that extension of time is a matter of concession to the applicant and could not be claimed by applicant as a matter of absolute right. It was held in case reported in AIR 1973 Delhi 24 (DB) titled Banwarilal and Sons Pvt. Ltd. vs. Union of India and another that if an experienced and very able counsel of long standing gives an opinion contrary to latest and widely law announced by the Supreme Court and High Courts then that mistake could not be stated to be bonafide mistake. In present case order passed by Hon’ble High Court of H.P. on dated 26.4.2012 and 11.6.2013 in CMPMO No. 355 of 2009 are quoted in toto:- “26.4.2012 Present: Mr. Deepak Bhasin, Advocate for the petitioner. Mr. Satish Sharma, Advocate vice Mr. Bimal Gupta Advocate, for respondent No.2. No order is required to be passed in view of the decision of Supreme Court in United India Insurance Co. Ltd. vs. Shila Datta and others, 2011 ACJ 2729 . Sd/- 26th April, 2012. Judge H.P. High Court 11.6.2013 Present:-Mr.Deepak Bhasin Advocate for petitioner. Mr. Bimal Gupta Advocate for respondent. Case has been wrongly listed. The petition already stand decided by order of this Court on 26th April 2012. Sd/- June 11, 2013. Judge H.P. High Court” Order was announced by Hon’ble High Court of H.P. in presence of learned Advocate appearing on behalf of Oriental Insurance Company. Thereafter w.e.f. 26.4.2012 Oriental Insurance Company did not file any appeal under Section 173 of Motor Vehicles Act 1988 but filed the appeal in H.P. High Court on dated 4.10.2013. Thereafter objections were raised by H.P. High Court and appeal was returned. Thereafter again appeal was filed on dated 16.4.2014. It is proved on record that CMPMO was finally disposed of on dated 26.4.2012. There is no satisfactory explanation as to why again CMPMO No. 355 of 2009 was listed before Hon’ble High Court of H.P. on dated 11.6.2013 after expiry of about one year and two months without any review petition filed by Oriental Insurance Company. Insurance Company did not examine learned Advocate who had given legal advise in order to prove sufficient cause for not preferring appeal within time under Section 173 of Motor Vehicles Act 1988. It was held in case reported in 1989 ACJ 38 M.P. titled Uttam Singh vs. National Insurance Company Limited that High Court can be approached only once and if remedy is exhausted in High Court once then thereafter High Court cannot be approached. Even Insurance Company did not file any application under Section 14 of Limitation Act 1963. It was held in case reported in (2003)2 SCC 577 titled Nasiruddin vs. Sita Ram Aggarwal that provision of Section 5 of Limitation Act must be construed having regard to Section 3 of Limitation Act 1963. In view of above stated facts it is held that applicants did not prove sufficient cause for condonation of delay. It was held in case reported in (2003)2 SCC 577 titled Nasiruddin vs. Sita Ram Aggarwal that provision of Section 5 of Limitation Act must be construed having regard to Section 3 of Limitation Act 1963. In view of above stated facts it is held that applicants did not prove sufficient cause for condonation of delay. Issue No.1 is decided against applicants. Findings on issue No.2. 9. Submission of learned Advocates appearing on behalf of the non-applicants that applicants have no cause of action to file application under Section 5 of Limitation Act is accepted for the reasons hereinafter mentioned. It is well settled law that cause of action should be proved by way of positive oral or documentary evidence. It is well settled law that under Section 101 of Indian Evidence Act 1872 burden of proof of facts is upon party who asserts facts. (See AIR 2011 SC 2344 titled Rangammal vs. Kuppuswami) In view of above stated facts it is held that applicants did not prove any sufficient cause of delay. Issue No. 2 is decided in favour of nonapplicants. Relief 10. In view of findings on issues Nos. 1 and 2 application filed under Section 5 of Limitation Act is dismissed. Consequently appeal is not admitted. All pending miscellaneous application(s) if any also disposed of.