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2021 DIGILAW 223 (HP)

National Insurance Company Ltd. v. Rita

2021-04-08

RAVI MALIMATH

body2021
JUDGMENT : RAVI MALIMATH, J. 1. There is delay of one year, nine months and seven days in filing this appeal. CMP (M) No. 1611 of 2017 has been filed under Section 5 and Section 14 of the Limitation Act, seeking condonation of delay, in filing the appeal. It is stated therein that after the award was passed by the Tribunal dated 07.01.2010, since the remedy of filing an appeal was not available, in view of the existing law at that point of time, the applicant/appellant filed CWP No. 5067 of 2010 before the High Court of Himachal Pradesh. By the order dated 14.07.2016, the same was dismissed as withdrawn with a liberty to the Insurance Company to challenge the award. Thereafter, the instant appeal was filed on 06.11.2017. Therefore, it is pleaded that the time spent in pursuing the aforesaid writ petition, requires to be excluded from computing the period of limitation. It is further stated that after the order was passed in the writ petition on 14.07.2016, the certified copy was supplied to the counsel vide letter dated 31.12.2016 and it was advised that in order to file an appeal against the said award, the insurer had to obtain a fresh certified copy of the award. Thereafter, the copy of the award was received. The same was sent to the Divisional Office of the Insurance Company. Records were asked for by the counsel appearing for the Insurance Company. Therefore, in this process, there is a delay. Hence, it is pleaded that the application for condonation of delay be allowed. 2. The same is objected to by the learned counsels for the respondents through their statement of objections. They have stated that liberty was granted by the order dated 14.07.2016 by the writ Court, but thereafter there is no worthwhile explanation as to why the application for certified copy was made on 09.08.2017. That the application lacks particulars regarding the delay in obtaining the copy of the award etc. hence, requires to be rejected. That there is absence of any sufficient cause for condoning the delay. 3. By the order dated 13.10.2020, this Court was of the view that the explanation rendered in the application for condonation of delay has not been properly explained, therefore, at the request of the learned counsel for the applicant/appellant, time was granted to file a supplementary affidavit. That there is absence of any sufficient cause for condoning the delay. 3. By the order dated 13.10.2020, this Court was of the view that the explanation rendered in the application for condonation of delay has not been properly explained, therefore, at the request of the learned counsel for the applicant/appellant, time was granted to file a supplementary affidavit. Thereafter, a supplementary affidavit has been filed by the applicant/appellant on 20.03.2021. In the said supplementary affidavit, it is narrated that after the order was passed by the writ Court on 14.07.2016, the certified copy of the final order was obtained from the Copying Agency of the High Court on 30.07.2016, but due to confusion in the office of the counsel, the copy of the order or intimation could not be sent to the insurer. On coming to know about this fact, the same was immediately sent to the insurer. In the opinion, the counsel had recommended that in order to file an appeal, a fresh certified copy of the award has to be obtained. On receipt of the letter of the counsel, the insurer, vide letter dated 06.02.2017, requested Shri B.R. Sharma, Advocate at Solan, to obtain a fresh copy of the award. Meanwhile, the insurer vide letter dated 30.03.2017, advising the counsel to prefer the appeal immediately since the dealing counsel at Nalagarh had informed that an execution petition has been filed. It was stated by the counsel, vide letter dated 09.05.2017, that the certified copy of the award was still awaited from the insurer and the award in question could not be assailed before the Hon’ble High Court by filing a fresh appeal unless the certified copy of the award was supplied. Since no intimation was received about the certified copy from Shri B.R. Sharma, Advocate, vide letter dated 01.06.2016 the insurer requested yet another Advocate Shri Ravinder Thakur, to apply for a certified copy of the award and send the same immediately. A reminder letter dated 19.06.2017 and letter dated 29.07.2017 were also sent. The copy of the award was attested on 06.10.2017 and was sent by Shri B.R. Sharma, Advocate to the Divisional Office, Shimla. The certified copy was sent to the counsel vide letter dated 16.10.2017. Thereafter, the learned counsel requested for the records from the insurer. After receipt of the same, the appeal was filed on 06.11.2017. The copy of the award was attested on 06.10.2017 and was sent by Shri B.R. Sharma, Advocate to the Divisional Office, Shimla. The certified copy was sent to the counsel vide letter dated 16.10.2017. Thereafter, the learned counsel requested for the records from the insurer. After receipt of the same, the appeal was filed on 06.11.2017. Therefore, it is pleaded that the supplementary affidavit be accepted. 4. Heard learned counsels. 5. On considering the reasons assigned, I do not find that any sufficient cause has been shown by the applicant/appellant to condone the delay. It would appear that the insurer has taken things for granted. The writ petition was dismissed as withdrawn with a liberty to file an appeal in terms of the order dated 14.07.2016. The appeal was filed on 06.11.2017, i.e. one year and four months thereafter. The only reason assigned is the delay in obtaining the certified copy of the award and even the Advocate who was asked to procure the certified copy of the award, has failed to do so. I do not find any affidavit of any counsel that has been filed herein to support the plea in the affidavit. Blaming the previous Advocates, without their affidavits, cannot be accepted as sufficient cause to condone the delay. It would appear that the insurer has taken things in a very casual manner, which has occasioned in the huge delay. 6. Even though, the Courts are always liberal in condoning the delay, it does not mean that each and every delay requires to be condoned. In the instant case, the accident occurred on 07.11.1999. The matter was contested before the Tribunal. A writ petition was filed. It is almost twenty-two years since the filing of the claim petition and the claimant has not received any compensation. Even though, that is not the sole ground to consider an application seeking condonation of delay, it is an important factor that the Court should take into consideration. The delay has been caused only due to the acts of omission committed by the appellant. The applicant/appellant is not a rustic litigant, but an Insurance Company. Presumably, it is assisted by the finest lawyers. Therefore, to file such affidavits which do not satisfy any requirements of law or facts, I do not find any ground to entertain this application. 7. The applicant/appellant is not a rustic litigant, but an Insurance Company. Presumably, it is assisted by the finest lawyers. Therefore, to file such affidavits which do not satisfy any requirements of law or facts, I do not find any ground to entertain this application. 7. In view of the absence of any sufficient cause being shown by the applicant/appellant, the application seeking condonation of delay, is dismissed. Consequently, the appeal (FAO No. 85 of 2021) stands rejected. In view of the long pendency of the matter, the insurer is directed to deposit the amount before the Tribunal within a period fifteen days from today.