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2019 DIGILAW 954 (GAU)

Reliance General Insurance Co. Ltd. v. Asatan Nessa

2019-08-28

NELSON SAILO

body2019
ORDER : Nelson Sailo, J. 1. Heard Mr. S. Dutta, learned senior counsel assisted by Mr. S. Dutta for the applicants. Also heard Mr. A. Mannaf, learned counsel for the respondent claimants. 2. This order will dispose of all the three Interlocutory Applications. Although the number of days delay are not similar in all the three applications, but since the explanations for the delay being similar, they are taken up together for disposal. 3. For the sake of convenience and for brevity, I.A.(C) No. 1023/2018 shall be referred to. The application is filed under Section 5 of the Limitation Act, 1963 seeking condonation of 439 days delay in filing the appeal against the Judgment & Order dated 24.06.2015 passed by the learned Member, Motor Accident Claims Tribunal No. 1, Kamrup, Guwahati in MAC Case No. 553/2010. 4. The learned senior counsel, Mr. S. Dutta submits that the reason for filing the appeal beyond the period of limitation was only due to the various process necessary to be undertaken by the Insurance Company in finalizing the decision to file an appeal, which included consultations between the Branch Office, Divisional Office and the Regional Office of the Insurance Company. In support of his submission, the learned counsel refers to paragraph No. 7 of the application in particular. The learned senior counsel further submits that the applicant has good ground of appeal and there is a substantial question of law involved, which requires the consideration of this Court and therefore, unless the delay is condoned, grave prejudice will be caused to the applicant in support of his submission, the learned senior counsel relies upon the following authorities:- (i) Smt. Sandhya Rani Sarkar Vs. Smt. Sudha Rani Debi & Ors., reported in (1978) 2 SCC 116 (ii) State of Nagaland Vs. Lipok Ao & Ors., reported in (2005) 3 SCC 752 (iii) National Insurance Co. Ltd. Vs. Cholleti Bharatamma & Ors., reported in (2008) 1 SCC 423 . 5. Mr. A. Mannaf, the learned senior counsel for the respondent claimants, on the other hand, submits that the applicant has not satisfactorily explained the delay in filing the appeal. By referring to the affidavit-in-opposition filed by the respondent claimants on 16.08.2018, the learned counsel submits that the applicant Insurance Company filed the appeal on 05.12.2016 against the judgment and order passed by the Tribunal on 24.06.2015. By referring to the affidavit-in-opposition filed by the respondent claimants on 16.08.2018, the learned counsel submits that the applicant Insurance Company filed the appeal on 05.12.2016 against the judgment and order passed by the Tribunal on 24.06.2015. By the time the appeal was filed, there was already 440 days delay. He also submits that the appeal was also filed without a certified copy of the judgment and award of the Tribunal and therefore, a defect was remarked by the filing section of the Registry of this Court The respondent claimants, on the other hand, were all along waiting for the judgment and award to be satisfied by the applicant Insurance Company but since the same was not deposited within the time specified by the Tribunal, the respondent claimants initiated Bakijai proceeding being B.J. Case No. 53/2017 on 25.5.2017 before the Certificate Officer, Bakijai Branch, Kamrup (M) at Guwahati. On filing the Bakijai case, a warrant of arrest was issued vide Order dated 04.10.2017. It was only then that the applicant took steps to rectify the defect in the appeal that was filed on 05.12.2016 by submitting an application for permission to rely upon the original certified copy filed in respect of the other two analogous appeals. Such application was filed on 16.02.2018 and pursuant to which, the defect was rectified on 17.02.2018. The learned counsel submits that it cannot therefore be said that the applicant was not diligent in pursuing the appeal within the period of limitation as prescribed by the Motor Vehicles Act, 1988 i.e., 90 days from the date of the judgment and award of the Tribunal. Mr. A. Mannaf in support of his submission relies upon the following decisions:- (i) Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr., reported in 2012 (3) SCC 563 (ii) Order dated 17.07.2017 passed by this Court in I.A. (Civil) No. 1390/2016 (The Reliance General Insurance Co. Ltd. Vs. Mustt. Aizan Begum & Ors.) (iii) ICICI Lombard General Insurance Co. Ltd. Vs. Rup Nath Brahma Choudhury & Ors., reported in 2017 (2) GLT 487. 6. I have considered the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the authorities relied upon by the parties. 7. Ltd. Vs. Mustt. Aizan Begum & Ors.) (iii) ICICI Lombard General Insurance Co. Ltd. Vs. Rup Nath Brahma Choudhury & Ors., reported in 2017 (2) GLT 487. 6. I have considered the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the authorities relied upon by the parties. 7. Since the learned senior counsel has drawn the attention of this Court to paragraph No. 7 of the application, the same is abstracted herein below for ready perusal:- "7. That, the impugned award was passed on 24.06.2015 and the counsel for the insurance company intimated the same to the company by furnishing his legal opinion along with certified copy of the Judgment and Order on 27.07.2015 since summer vacation commenced from 27.06.2015. The legal department of the Regional Office, after scrutinizing the entire matter, sought for the certified copies of the depositions in connection with the case which took some time to be obtained and which could eventually be furnished to the Regional Office on 08.09.2015 by the dealing Advocate. Thereafter, the Regional Office of the Company sent the file to the counsel for the High Court for providing legal opinion on 15.10.2015 and accordingly the concerned counsel furnished his opinion on 04.11.2015 after the puja vacations. The petitioner company thereafter thought of settling the matter out of Court. However, the matter could not be settled and the company again on 07.04.2016 sent back the file to the counsel for preferring appeal. The counsel while preparing the appeal, could not find some documents such as the written statement, the copy of the judgment dated 24.05.2016 in the claim folder and the same was intimated to the petitioner company on 22.04.2016 after Bihu Vacations. The company searched for those documents, which, however were not in the Regional Office and the same was intimated to the counsel on 30.05.2016. Considering the fact that there is merit in the case, the counsel on 17.06.2016 advised the company to procure the copies of those documents from the Tribunal. The company on 20.07.2016, requested the Advocate of the Trial stage to do the needful and the said advocate procured the photocopies of those documents and furnished the same to the company on 24.08.2016. The petitioner company again sent the file to the counsel's chamber on 03.10.2016. The company on 20.07.2016, requested the Advocate of the Trial stage to do the needful and the said advocate procured the photocopies of those documents and furnished the same to the company on 24.08.2016. The petitioner company again sent the file to the counsel's chamber on 03.10.2016. The counsel thereafter prepared the appeal, however the same could not be filed immediately as puja vacations commenced from 07.10.2016 which continued till 23.10.2016. Due to the entire sequence of events as aforementioned, the appeal could be filed only on 31.10.2016 and in that process, it led to an inadvertent delay of 439 days in filing the appeal." 8. From the above abstract, it may be seen that after the judgment and award was passed on 24.06.2015, a certified copy of the same along with the legal opinion was said to have been furnished to the applicant Insurance Company on 27.07.2015. The same was then scrutinized by the Legal Department in the Regional Office and they sought for certified copies of the depositions in connection with the case, which took some time. It was eventually furnished to the Regional Office on 08.09.2015 and the Regional Office thereafter, sent the file to their counsel in the High Court for his legal opinion on 15.10.2015 and accordingly, the said counsel furnished his opinion on 04.11.2015. It may be seen that there is no explanation as what transpired between 08.09.2015 to 15.10.2015. It is further the contention of the applicant that the applicant Company thought of settling the matter out of Court. However, as the matter could not be settled out of Court, the file was sent back on 07.04.2016 for filing an appeal before the High Court. Legal opinion was furnished to the applicant by their counsel on 04.11.2015 and the file was sent back on 07.04.2016 for filing appeal. This would mean that the applicant for over 5(five) months were trying to settle the matter out of Court going by their explanation. Mr. A. Mannaf submits that there was no such proposal for out of Court settlement coming from the applicant Insurance Company at any stage. 9. It is the further stand of the applicant that their engaged counsels, while preparing the appeal could not find documents such as, written statements, copy of the Judgment dated 24.05.2016 etc., and therefore the same was intimated to the applicant Company on 22.04.2016. 9. It is the further stand of the applicant that their engaged counsels, while preparing the appeal could not find documents such as, written statements, copy of the Judgment dated 24.05.2016 etc., and therefore the same was intimated to the applicant Company on 22.04.2016. Against such requisition, the Company searched for the documents in the Regional Office but could not find the same and this fact was intimated to the counsel on 30.05.2016. Since the documents were considered to be vital, the same was again procured from the Tribunal which could be furnished to the Company only on 24.08.2016. The documents reached the Chamber of the applicant's Company on 03.10.2016 and pursuant to which, the appeal could be prepared but since Puja Vacation commenced from 07.10.2016 and continued till 23.10.2016, the appeal could only be filed on 31.10.2016 and by that time, a delay of 439 days had occasioned. 10. The explanation tendered by the applicant Insurance Company as may be noticed from the preceding paragraph cannot be accepted. As already noticed, there is no explanation as to what transpired between 08.09.2015 to 15.10.2015 and thereafter, between 04.11.2015 to 07.04.2016 except for saying that the applicant Company thought of settling the matter out of Court with no further substantiation. It is the stand of the applicant that legal opinion alongwith certified copy of the Judgment & Order dated 24.6.2015 was already received by them on 27.7.2015 but surprisingly, later on, the judgment could not be traced out in the Regional Office. 11. The Apex Court in the case of Living Media India Ltd. & Anr. (Supra) has held that 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. Consequently, the delay of 472 days in that case was not condoned by the Apex Court. The said decision has been followed by this Court in The Reliance General Insurance Co. Ltd. (Supra). This Court also in Rup Nath Brahma Choudhury & Ors. Consequently, the delay of 472 days in that case was not condoned by the Apex Court. The said decision has been followed by this Court in The Reliance General Insurance Co. Ltd. (Supra). This Court also in Rup Nath Brahma Choudhury & Ors. (Supra) found the explanation tendered by the insurer not to be satisfactory where the delay was for 99 days. This Court held that the appellant therein, who are in the 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. Therefore upon finding, the application to be a stereotype application giving an impression that the applicant had no intention to display any sense of promptitude even when it affects its own interest and 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, the delay of 99 days was therefore not condoned. 12. The ratio laid down by the Apex Court as well as by this Court as observed hereinabove, in my considered opinion will apply to the present case as well as the explanation for the delay is casual and far from being satisfactory. It is also noticed that the applicant failed to take remedial steps with promptitude when the appeal was found to be detective as far back as on 29.12.2016. Only after the Bakijai proceeding was initiated against the applicant, the applicant took remedial steps to correct the defect in the appeal on 17.2.2018. 13. The Apex Court in the case of Lipok Ao & Ors. (Supra) observed that the expression "sufficient cause" should be considered with pragmatism and in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. However, from the facts narrated in the instant case, as may be noticed hereinabove, the applicant has failed to demonstrate due diligence in pursuing the remedy of appeal under the MV Act and therefore, I find that the applicant has failed to explain the delay with "sufficient cause" to have a liberal interpretation of the term. 14. However, from the facts narrated in the instant case, as may be noticed hereinabove, the applicant has failed to demonstrate due diligence in pursuing the remedy of appeal under the MV Act and therefore, I find that the applicant has failed to explain the delay with "sufficient cause" to have a liberal interpretation of the term. 14. Lastly, it may be noticed that there is a delay of 424 days in filing the connected appeal in respect of I.A.(C) No. 599/2018 and 425 days in filing the connected appeal in I.A.(C) No. 724/2018. Both the I.A.'s were filed on 20.02.2018, while the connected appeals had already been filed on 21.11.2016. This clearly demonstrates the negligence on the part of the applicant as well. 15. Thus, upon considering the matter in its entirety, I find no good ground to condone the delay in filing the appeals and accordingly, all the applications are dismissed.