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2017 DIGILAW 1520 (GAU)

Oriental Insurance Co. Ltd. v. Muthi Basumatary

2017-12-08

KALYAN RAI SURANA

body2017
ORDER : Kalyan Rai Surana, J. 1. Heard Mr. S. Dutta learned counsel for the applicant as well as Mr. S. Biswas learned counsel for the opposite parties No. 1, 2 and 3. None appears on call for the opposite party No. 4 although notices has been duly served on the said opposite party, as such, the matter has proceeded ex-parte against him. By this application under second proviso to section 173 (1) of the Motor Vehicles Act read with section 5 of the Limitation Act, the applicant has prayed for condoning the delay of 159 days beyond the period of limitation in filing the connected appeal. The causes of delay is explained in paragraphs 5 and 6 of this application, indicating that although the impugned judgment and award was passed on 28.05.2015, the certified copy of the said judgment and award was obtained on 21.07.2015 and the same was furnished to the applicant on 24.07.2015. However, his legal opinion was received on 21.08.2015. Thereafter, the files were received by the office of the Regional Office of the applicant on 03.09.2015 and the matter was referred to them on 22.09.2015. The learned counsel for the applicant found that in respect of the same claim, the applicant had prosecuted another claim before the Commissioner, Workmen's Compensation, being W.C. Case No. 150/2010. However, the copies of the relevant documents of the said case were not available in the case folder. Therefore, the applicant was requested to furnish the said documents. The copies of W.C. Case No. 150/2010 could be obtained only on 27.11.2015 and the same was forwarded to the Regional Office on 30.11.2015 and the said copies were handed over to the learned counsel for the applicant only on 14.12.2015 and finally the appeal was filed on 17.02.2016 and in the said process there was a delay of 159 days beyond the period of limitation for filing the connected appeal. 2. The learned counsel for the applicant submits that as per the documents appended to the connected memo appeal, the claim for compensation before the Commissioner, Workmen's Compensation, being W.C. Case No. 150/2010 was in respect of the death of Late Megnath Basumatary by vehicular accident and the judgment and order dated 16.09.2011 was passed by the learned Commissioner, Workmen's Compensation. The learned counsel for the applicant submits that as per the documents appended to the connected memo appeal, the claim for compensation before the Commissioner, Workmen's Compensation, being W.C. Case No. 150/2010 was in respect of the death of Late Megnath Basumatary by vehicular accident and the judgment and order dated 16.09.2011 was passed by the learned Commissioner, Workmen's Compensation. Thereafter, MAC Case No. 40/12 was registered before the learned Member, MACT, Bongaigaon wherein it was projected that there was a motor vehicle accident involving two vehicles and this time the claim was made against the owner, driver and insurer of the other vehicle insured by the applicant. The said claim resulted in award dated 28.5.2015. It is further submitted that some procedural delay had occurred in filing the connected appeal which is liable to be construed liberally. It is submitted that in this case owing to the requirement of record of W.C. Case No. 150/2010, there has been some delay. Moreover, the counsel conducting the MAC Case had furnished the certified copy as well as his opinion almost after a lapse of 60 days and 90 days respectively. 3. It is further projected that by referring to the case of the State of Nagaland v. Lipok Ao & Ors., (2005) 3 SCC 752 , that the decision for filing of the connected appeal was taken under a impersonal machinery working through the various officers of the applicant Hence, the explanation of the delay must be considered liberally and in the present case in hand where it can be prima-facie shown that in respect of the same accident, claim has been made before the learned Commissioner, Workmen's Compensation and after the judgment and award was passed in W.C. Case No. 150/2010, the subsequent claim petition was filed before the Motor Accident Claims Tribunal, Bongaigaon. 4. In support of the arguments, the learned counsel for the applicant has also referred to the case of G Ramegowda, Major & Ors. v. Special land acquisition officer, Bangalore, (1988) 2 SCC 142 and N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 . 5. Per contra, the learned counsel for the opposite parties No. 1, 2 and 3 submits that the first hurdle to be crossed by the applicant is to satisfactory explain the cause of delay and only thereafter this Court may be inclined to go into the merit of the matter. 5. Per contra, the learned counsel for the opposite parties No. 1, 2 and 3 submits that the first hurdle to be crossed by the applicant is to satisfactory explain the cause of delay and only thereafter this Court may be inclined to go into the merit of the matter. It is submitted that the merit of the appeal, which has not yet been registered, may not be examined for finding out whether there was merit in the appeal before condoning the delay. It is submitted that even on merit the respondent has an arguable case because the accident involved two vehicles and while the claim from the employer was made under the Workmen's Compensation Act, in so far as the second offending vehicle is concerned the opposite party was entitled to claim compensation from the insurer of the offending vehicle. 6. It is further submitted that the applicant is required to scrupulously follow the time prescribed in the Schedule to the Limitation Act for purpose of the filing of the appeal and the bureaucratic delay in taking a decision to filing an appeal cannot be condoned and that in the present case in hand, the causes of delay has not been sufficiently explained. 7. By referring to various dates as indicated above it is submitted that there was an unexplained delay in all stages and which does not constitute sufficient cause for not being able to file the accompanying appeal on time. It is further submitted that there is no separate period of limitation is provided for the Government or for Government concerns and officials and therefore, when the applicant is aware of the period of limitation, they were required to file the connected appeal on time. 8. It is further submitted that in both the cases filed before the Commissioner, Workmen's Compensation as well as in the Court of learned Member, MACT, the applicant was a party and therefore they were aware of both the claims and therefore, it is not acceptable that the relevant documents relating to W.C. Case No. 150/2010 was not in the file. It is submitted that the explanation for delay is vague and the necessary particulars as to the identity of the official/authority who had detained the file have not been disclosed in this application, as such, in the absence of material particulars, the appeal ought not to be condoned. 9. It is submitted that the explanation for delay is vague and the necessary particulars as to the identity of the official/authority who had detained the file have not been disclosed in this application, as such, in the absence of material particulars, the appeal ought not to be condoned. 9. In support of his arguments the learned counsel for the opposite party No. 1, 2 and 3 has referred to the case of The ICICI Lombard General Insurance Company Limited v. Rup Nath Brahma Choudhury & Anr., 2017 (2) GLT 487, wherein this Court had refused to condone the delay of 99 days. The relevant passage of the said order is quoted below:: "5...there is no statement showing (i) whether the various tables where the files are routed are in any manner concerned with the decision making process to file the appeal or not, (ii) how many table to table the files were routed, (hi) the time for which each particular table had detained the file. That apart, in the absence of disclosure what was the opinion by the learned advocate conducting the trial, the explanation that the file was sent to the learned advocate practicing in the High Court is not at all convincing. Moreover, there is no statement that the learned advocate conducting the trial had held up the file, it is not understood from the vague statements how much time and importantly, why at all any time was consumed just for the purpose of collecting the file from the said advocate conducting the trial, when the specific statement in paragraph 5 of the present case is that the petitioner company had 'received' the copy of judgment and award along with the opinion of the advocate on 03.03.2015. Moreover, there is no disclosure what were those formalities and how much time was consumed in doing those alleged formalities. Even after getting the advocate's opinion at the end of the applicant's Head Office at Mumbai, their officials once again deliberated amongst themselves to take a decision to file appeal. No dates are mentioned and it is stated that file was sent back to Guwahati in mid part of May, 2015. Again there were correspondence and formalities, without any disclosure as to what were those correspondence and formalities, and the case file was send to their counsel. No dates are mentioned and it is stated that file was sent back to Guwahati in mid part of May, 2015. Again there were correspondence and formalities, without any disclosure as to what were those correspondence and formalities, and the case file was send to their counsel. Then it is further stated that their learned counsel had other important matters to be prepared and attended to, thereby indicating that the present appeal was not 'so important. 6. The explanations as given in the herein before quoted paragraphs 4, 5 and 6 of the instant application are not at all found to be satisfactory from a insurer like the appellant, who are in a business of insuring citizens and goods in the Country, have a social responsibility to see that at least they do not become a source of prolongation of a litigation under the social and beneficial legislation. Accordingly, this court is of the opinion that the reasons assigned as the cause of delay establishes that the delay of 99 days has not been properly or satisfactorily explained. The said causes are held not to constitute just, or proper, or good, or sufficient cause for which the connected appeal could not be filed on time, rather the said statements reflects that the applicant was casual in all stages of decision making process in the Branch level, Regional Office level and in the Head Office level. The present application is a stereotype application, which gives an impression that the applicant had no intention to display any sense of promptitude even where it affects its own interest or that the applicant has taken for granted that delay would always be condoned even if applications are prepared and filed in a casual and routine manner without satisfactorily explaining the delay. Accordingly, the prayer for condonation of 99 days in presenting the connected appeal is rejected. 7. Before parting with the records, this court is of the view that save and except a few cases, a majority of the insurance claims are generally on a pre-set pattern and the appellant, who are in the business of insuring risk is supposed to be equipped with some sort of mechanism to calculate the estimated award expected in a case and, as such, it is for the applicant to devise a way and means to expeditiously challenge those awards, to which they do not agree to. However, this is only a passing remark, and the applicant is left to decide its own course while taking steps in courts." 10. The learned counsel for the opposite parties No. 1, 2 and 3 have also relied on the case of (i) Postmaster General & Ors. v. Living Media India, Limited, (2012) 3 SCC 563 , and (ii) Union of India & Ors. v. Tata Yodogawa Limited & Anr., (2015) 9 SCC 102 . The relevant passages of the said judgments are quoted below:- (i) Postmaster General & Ors. v. Living Media India Limited, (2012) 3 SCC 563 :- "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."] (ii) Union of India & Ors. v. Tata Yodogawa Limited & Anr., (2015) 9 SCC 102 :- "4. From 26.12.1986 to 10.2.1987 and from 6.3.1987 to 24.3.1987 there is no cogent and possible explanation. It may be mentioned that the special leave petition was actually filed on 23.3.1987. There is no whisper to explain what "legal problems in filing the special leave petition arose". It appears to us that no attempt has been made to explain this delay. In that view of the matter we gave further opportunity to the petitioners to file additional affidavit explaining the cause, if any, for this delay." 11. This Court has considered the submissions made by the learned counsel for both sides as well as the citations cited by them. 12. This Court is of the view that the question of considering the sufficiency of the explanations for the purpose of condoning the delay is dependent on the subjective satisfaction of the Court in sesin of the case and there cannot be a straight jacket formula for the purpose of considering the issue related to explanation for condoning the delay. Therefore, in the cases cited herein by the learned counsel for both sides it is seen that while in some cases the Court have shown leniency for the purpose of condoning the delay whereas in few cases the explanations are found not to be sufficient for condoning even the delay of 99 days. 13. Therefore, this Court is inclined to follow the ratio of the case of State of Nagaland v. Lipok Ao and others (Supra) where it has, inter-alia, been held that certain amount of latitude is not impermissible while considering the issue of limitation to determine whether the delay has been sufficiently explained. It was also held that the Court should decided the matters on merit unless the case is hopelessly without merit. In this regard it would be relevant to extract para 15 of the case of State of Nagaland v. Lipok Ao (Supra):- "15. It was also held that the Court should decided the matters on merit unless the case is hopelessly without merit. In this regard it would be relevant to extract para 15 of the case of State of Nagaland v. Lipok Ao (Supra):- "15. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression\sufficient cause\ should, therefore, be considered with pragmatism injustice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach injustice- oriented process. The court should decide the matters on merits unless the case is hopelessly without merit." 14. The Hon'ble Supreme Court of India in the case of G Ramegowda, Major and others (Supra) had taken a view that where delay occurred due to unusual conduct of the government employees, the Court may condone the delay in facts and circumstances of the interest of justice. In this regard, reference was made to the observations of the Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107 (para-3), where it was held that when substantive justice and technical consideration are pitted against each other, cause of substantive justice deserves to be preferred. 15. Coming to the present case in hand, it is seen that the connected memo of appeal the judgment and order passed by the learned Commissioner, Workmen's Compensation dated 15.09.2011 passed in W.C. Case No. 150/10 is annexed. The same related to claim against the death of Megnath Basurnatary. On perusal of the judgment dated 28.05.2015 passed in MAC Case No. 40/12 it is seen that the claim is made in respect of Megnath Basumatary. The same related to claim against the death of Megnath Basurnatary. On perusal of the judgment dated 28.05.2015 passed in MAC Case No. 40/12 it is seen that the claim is made in respect of Megnath Basumatary. Therefore, the prima-facie view of this Court is that if the provisions of section 167 of the Motor Vehicles Act, 1988 is considered, arguable issues arises for determination of the appeal on merit to find out whether the claim before both authorities i.e. Commissioner, Workmen's Compensation and also separately before the MACT can be sustained in respect of death of one person. Therefore, this Court is inclined to accept the causes explained to this Court as good and sufficient cause which has prevented the appellant in filing the connected appeal on time. 16. In this case the insurer i.e. the applicant had forwarded the file as it was, and it is the counsel for the appellant who had found the discrepancies with the record because the W.C. Case No. 150/10 was not furnished, which is one of the reason that had contributed to the delay and therefore, it is again one of such case where the officers of the applicant are not found to have exercised due diligence as such, the ratio of the case of G. Ramegowda, Major (supra) appears to be attracted. However, be that as it may the issue raised requires adjudication on merit and therefore no comment is passed further. 17. Therefore, this Court is inclined to allow this application, resultantly, the delay of 159 days beyond the period of limitation is hereby condoned. 18. Office shall now register the connected appeal and list the same in the admission column showing the name of Mr. S. Biswas as well as Mr. B.J. Mukherjee, as the learned counsel, appearing for respondent Nos. 1, 2 and 3 while listing the matter. The IA, accordingly, stands allowed.