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2019 DIGILAW 140 (GAU)

Oriental Insurance Co. Ltd. v. Manomanti Chouhan

2019-01-30

AJIT BORTHAKUR

body2019
JUDGMENT : AJIT BORTHAKUR, J. 1. Heard Mr. M.D. Choudhury, learned counsel for the applicant/appellant. Also heard Mr. A.D. Choudhury, learned counsel for the respondent/claimants No. 1 & 2. None appeared for the respondents No. 3 to 5. 2. This application under Section 5 of the Limitation Act read with section 173(1) proviso of the Motor Vehicles Act (for short 'M.V. Act') has been filed praying for condonation of delay of 196 days in preferring an appeal against the judgment and award, dated 30.08.2016, passed by the learned Member, Motor Accident Claim Tribunal (for short the 'M.A.C.T.') No. 3, Kamrup (M) at Guwahati, Assam in MAC Case No. 661 of 2011. 3. The applicant/appellant, Oriental Insurance Co. Ltd. by filing the instant application, inter alia, contends that the company has filed an appeal against the aforesaid judgment and award, dated 30.08.2016, whereby the learned MACT No. 3, Kamrup (M) at Guwahati has awarded the compensation of Rs.7,90,000/- along with interest @ 6% per annum from the date of filing of the claim petition till payment and in favour of the respondent/claimants No. 1 & 2. The applicant insurance company further contends that although the certified copy of the judgment was obtained on 08.09.2016, the same was received by the company on 06.10.2016 along with the opinion of the learned counsel. Thereafter, the company sought for some clarifications from the dealing advocate, on 24.10.2016, and the clarifications were received at the Company's Regional Office at Guwahati on 16.12.2016 as the learned counsel remained out of station for her medical treatment. The Regional Office, thereafter, sent the file to their learned counsel of this Court for opinion on 07.01.2017 and the learned counsel furnished his legal opinion on 19.01.2017 advising the company for preferring an appeal against the said judgment and award of the Tribunal. On receipt of the advice, the matter was submitted to the Company's Head Office at New Delhi, on 08.02.2017 and the competent authority, after consideration of the documents, advised the Regional Office at Guwahati to prefer an appeal before this Court, on 27.03.2017. The Regional Office at Guwahati received the aforesaid advice, on 12.04.2017. Accordingly, the Regional Office handed over the file to its counsel on 08.05.2017. The Regional Office at Guwahati received the aforesaid advice, on 12.04.2017. Accordingly, the Regional Office handed over the file to its counsel on 08.05.2017. However, while preparing the appeal, the learned counsel found unavailable of deposition copies of the witnesses and other vital documents in the case, which he informed to the company's office on 16.05.2017 and the company, in turn, asked the counsel to furnish the same on 24.05.2017. The learned counsel furnished the same, on 06.06.2017 and then the appeal was finally drafted and filed in this Court on 12.06.2017. In the aforesaid unavoidable official process, a delay of 196 days has occurred in filing the appeal. The applicant/appellant company further contends that as the matter involves a huge sum of public money and there are good grounds for appeal, for the ends of justice, the unintentional delay may be condoned. 4. The claimant/respondents No. 1 & 2 have contested the application filing a written objection, on the grounds, inter-alia, that the grounds for delay in preferring the appeal cannot be said to be good grounds for condonation of delay, much less to say sufficient grounds. It has been contended that a bare reading of the application reflects only inaction, negligence on the part of the applicant company and for such negligent acts, the company is not entitled for any relief of the nature of condonation of delay. The respondents have further contended that the deliberate negligence and laches on the part of the company is manifested from the facts that from the time the copy of the judgment and award was obtained on 08.09.2016 till the company actually received the said copy on 6.10.2016, it took 28 days and then sought clarification from the dealing advocate on 24.10.2016, which was received by the Regional Office on 16.12.2016, that is, after a long period of 53 days. There is no any explanation for the period from 06.10.2016 to 24.10.2016 as to why a long period of 18 (eighteen) days was taken just for sending the file to his counsel for clarification. There is no any explanation for the period from 06.10.2016 to 24.10.2016 as to why a long period of 18 (eighteen) days was taken just for sending the file to his counsel for clarification. The contesting respondents have also contended that the Regional Office of the applicant/appellant company sent the file for advice of the High Court counsel on 7.1.2017 and the same was furnished on 19.1.2017, that is, after 12 days, but there is no explanation from 16.12.2016 to 7.1.2017 as to why a long period of 22 days was taken just for sending their file to his counsel. According to the respondents there was inordinate delay of 63 days to take a decision by the Head Office of the company, whether to prefer an appeal against the judgment and award, from 08.02.2017 to 12.04.2017. On the other hand, there is no explanation for the period from 19.01.2017 to 08.02.2017, as to why it took 20 days to send the file to the Head Office. Further, after receiving a file from the Head Office on 12.04.2017, it took 26 days to handover the file to the counsel on 08.05.2017 to prefer the appeal and again 35 days in completing the exercise of preparation and filing of the appeal by the learned counsel for the applicant/appellant company. The learned counsel also took 25 days to provide the documents relevant to the case under appeal. Hence, prayed to dismiss the application. 5. Ms. M. Choudhury, learned counsel for the applicant/appellant Insurance Company, submitted that it is judicially well settled that a pragmatic approach should be adopted by the Court to condone the delay in filing the appeal for genuine causes. Ms. Choudhury further submitted that the company has shown sufficient causes for the delay and as such, a chance may be given to give a fresh look to the judgment and award passed by the learned MACT on its merits as the company has very good grounds to be adjudicated in appeal. Ms. Choudhury has relied on the judgment of the Hon'ble Supreme Court rendered in State of Nagaland Vs. Lipok Ao & Ors., reported in (2005) 3 SCC 752 . 6. Mr. Ms. Choudhury has relied on the judgment of the Hon'ble Supreme Court rendered in State of Nagaland Vs. Lipok Ao & Ors., reported in (2005) 3 SCC 752 . 6. Mr. A.D. Choudhury, learned counsel for the respondent/claimants No. 1 & 2, emphasized on the grounds of objection taken in the affidavit-in-opposition stated above and vehemently submitted that merely because the applicant/appellant is a corporate body (Insurance Company), there is no provision for any special consideration for condoning the delay in preferring the appeal for want of plausible and cogent reasons being shown beyond 90 days of prescribed period of limitation. Mr. Choudhury further submitted that in a number of cases, this Court has refused the condonation of delay in similarly situated cases for want of sufficient cause. In this regard, Mr. Choudhury, the learned counsel for the respondent/claimants has relied on the proposition of law enunciated by the Hon'ble Supreme Court in Postmaster General & Ors. Vs. Living Media India Ltd. & Anr., reported in (2012) 3 SCC 563 and the judgments of this Court rendered in United India Insurance Co. Ltd. Vs. Dr. Mrs. Lakshmi Goswami & Ors. reported in (2017) 0 Supreme (Gau) 676 and the ICICI Lombard General Insurance Co. Ltd. Vs. Shri Rup Nath Brahma Choudhury & Anr., reported in (2017) 2 GLT 487. 7. In para 15 of the judgment rendered in Lipok Ao (supra), the Hon'ble Supreme Court held as hereinbelow extracted:- "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. 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. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants." 8. In para 28 & 29 of the judgment rendered in Postmaster General (supra), the Hon'ble Supreme Court held as under:- "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 bona fide, 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 law shelters everyone under the same light and should not be swirled for the benefit of a few." 9. This Court in Dr. Mrs. Lakshmi Goswami (supra) observed that even a corporate body or a Government or instrumentality of the Government as a litigant does not stand on a higher pedestal as law shelters everyone under the same light. Even if, such impersonal bodies are held to be entitled to some amount of latitude, such entitlement or indulgence, obviously does not fully absolve them from explaining the cause for the delay. 10. Be it mentioned that proviso of Section 173 of the M.V. Act lays down that an appeal can be filed against any award of the MACT within 90 days. However, such an appeal may be entertained after the expiry of the said period of 90 days, if the appellant was prevented by sufficient cause from preferring the appeal in time. 'Sufficient Cause' means a cause beyond the control of the party, which may appear to be reasonable in the given well explained circumstances. 11. I have carefully considered the rival contentions made by the parties. It is noticed that the basic reason for the delay was due to procedural formalities of the applicant company at its various offices viz. Regional Office and Head Office, where the matter was not dealt with promptness. The applicant is a nationalized insurance company and as such, the company is duty bound to give effect to the benevolent legislation of the M.V. Act to the distressed litigants with all promptitude, lest to suffer itself for depriving the beneficiaries of the objects behind the provisions, the legislature has incorporated in the Act. Undoubtedly, the delay imputed to the company's learned counsel in processing the matter may be condoned, for which the applicant insurance company should not be made to suffer, strictly in the context of the explanations given by the company, but wasting of time in shuffling of the papers from one office to another office in the corporate sector to obtain accord for preferring appeal, during the present era of electronic communications, is certainly not acceptable. In a number of appeals, it is noticed that due to delay in official process, the appeals are filed beyond the prescribed period of limitation causing insurmountable sufferings to the distressed litigants, who are forced to wait for compensation indefinitely for the loss of life of dear ones or injuries sustained by themselves in road traffic accidents. However, as the applicant insurance company has claimed that 'refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated' and further, that 'a large sum of public money is involved in the case', this Court finds it reasonable to have a pragmatic approach to the aforesaid grounds for the delay condonation as a one time measure. 12. Consequently, the delay is condoned as prayed for, with a cost of Rs. 30,000/- (thirty thousand) only as condition precedent to the registration of the appeal. The cost shall be deposited, within a period of 30(thirty) days from today, with the registry of this Court, which shall be released to the claimant/respondent No. 1 or to the claimant/respondent No. 2, the mother and father respectively of the deceased on their choice. Application stands disposed of.