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2018 DIGILAW 658 (HP)

Megh Raj Dogra v. Sunil Kumar

2018-04-16

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, Judge. This application has been preferred by the applicant/appellant, under Section 5 of the Limitation Act for condonation of delay of nine years, five months and twenty days in filing of the appeal. As per the applicant, after dismissal of the appeal of the insurer-respondent No.3, the claimant-respondent No.1 maintained execution petition before the learned Motor Accident Claims Tribunal, and as such, the applicant came to know that the impugned award has been allowed against him and as such, applicant immediately rushed to Shimla and contacted the learned counsel, who advised him to maintain appeal against the impugned award, dated 20.1.2007 and as such, on such legal advice sought and received by the applicant, present appeal was got drafted and is being maintained without any further delay. The delay in filing the appeal is due to the wrong legal advice sought by the applicant and due to want of proper legal advice, the applicant, who is a layman could not maintain appeal against the impugned award and thus, delay has occurred in filing the appeal. The delay in filing appeal is neither intentional, but due to the wrong legal advice received by the applicant due to which, he could not assail the impugned award before this Court. The application is duly supported with an affidavit. 2. Reply to the application has been filed by non-applicant/respondent No.3 and it has been averred that the present application is not maintainable, keeping in view the fact that the present application has been maintained to condone the delay in filing the appeal against the impugned award, dated 20.1.2007. The impugned award pay and recover rights were given to non-applicant/respondent No.3, against which appeal i.e. FAO No.143/2007, was filed by the non-applicant, which was dismissed by this Court, vide judgment dated 26.9.2014 and thereafter, filed execution petition before the learned Tribunal below. The applicant was duly represented by the learned counsel before the learned Tribunal as well as before this Court in FAO No.143/2007, which was maintained by the non-applicant/respondent No.3 and as such, the explanation which has been given by the applicant in order to get the inordinate delay condoned is nothing, but is a bundles of lies and as such, the present application deserves dismissal. It is further stated that the appeal in question is not maintainable, keeping in view the fact that the finding with respect to pay and recover has been affirmed by this Court. The present application is hopelessly time barred and the same is liable to be dismissed. 3. Learned counsel appearing on behalf of the applicant has argued that the delay is required to be condoned, as there is a sufficient reason, as explained in the application. On the other hand, learned counsel appearing on behalf of non-applicant-respondent No.3 has argued that the delay is not at all explained and was negligent, and so, not required to be condoned and prays for dismissal of the present application. 4. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 5. From the perusal of record, it is seen that the impugned award was passed in this case on 20.1.2007, wherein the learned Tribunal below has passed the order, which is reproduced herein as under : ?In view of the aforesaid discussion the petition is allowed and the petitioner is awarded compensation to the tune of Rs.15,05,500/-. The petitioner shall also be entitled for interest at the rate of 9.5% from the date of petition. At first instance the amount shall be paid by the respondent No.3 who may be at liberty to recover it from the respondents No.1 and 2. Memo of costs be prepared accordingly. The file after completion be consigned to records.? 6. Now, after a period of nine years, five months and twenty days, the present application has been maintained for condonation of delay. The only ground, which is taken by the applicant that after dismissal of the appeal of the insurer, the claimant has filed execution petition before the learned Motor Accident Claims Tribunal and as such, the applicant came to know that the impugned award has been passed against him and as such, he immediately rushed and contacted his learned counsel, who advised him to file appeal against the impugned award, dated 20.1.2007 and as such, on such legal advice, the present appeal got drafted and is being filed without any further delay. There is no explanation as to what the applicant was doing before filing the appeal, meaning thereby that he was negligent in pursuing his case. There is no explanation as to what the applicant was doing before filing the appeal, meaning thereby that he was negligent in pursuing his case. The law does not only help those people, who are negligent. It is seen on the record that the present applicant was respondent in FAO No.143 of 2007, which was maintained by the non-applicant-respondent No.3 and he was represented by his learned counsel. So, it cannot be said that the applicant was not having any knowledge with respect to the impugned award and so, he could not file appeal, meaning thereby that the applicant was totally negligent in pursuing his case. 7. At this moment, taking into consideration the fact that the applicant/appellant has failed to show sufficient cause whereby the delay in filing in the appeal can be condoned. This Court is left with no other option, but to dismiss the present application. Accordingly, the present application is dismissed. 8. In view of dismissal of the application, under Section 5 of the Limitation Act for condonation of delay in filing the appeal, this appeal cannot be held to be legally and validly constituted and therefore, dismissed as such leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.