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2024 DIGILAW 33 (HP)

United India Insurance Co. Ltd. v. Savitri Devi

2024-01-05

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant application, a prayer has been made to condone the delay of 7 years, 11 months 28 days in filing the review petition against judgment dated 28.07.2015 passed by this Court in FAO No. 213 of 2015, titled Savitri Devi vs. M/s Bharti Filling Station and another. 2. Respondent No.1 (hereinafter referred to as the claimant) had instituted a claim petition WCA No. 26/2 of 2011 under the provisions of Employee’s Compensation Act, before the Commissioner, Employee’s Compensation, Solan impleading inter alia M/s Bharti Filling Station as respondent No.1 and Insurance Company as respondent No.2. In the cause title of the WCA No. 26/2 of 2011, the particulars of Insurance Company were mentioned as under: “2. Insurance Company (name and address/particulars of Insurance of vehicle No. HP-07-3070 shall be disclosed by the owner/respondent No.1.” 3. During the pendency of WCA No. 26/2 of 2011, the petitioner herein (hereinafter referred to as the Insurance Company) was named as the Insurance Company. The Insurance Company contested the claim in WCA No. 26/2 of 2011. The claim petition was dismissed by learned Commissioner vide order dated 23.09.2014. The claimant filed an appeal before this Court against the order dated 23.09.2014 passed by learned Commissioner in WCA No. 26/2 of 2011. The appeal came to be registered as FAO No. 213 of 2015. This Court allowed the appeal vide judgment dated 28.07.2015 and fastened the liability to pay a sum of Rs.12,28,197.18 on Insurance Company towards the claimant. The Insurance Company was directed to pay the principal amount as well as interest, whereas the liability to pay the penalty was fastened on M/s Bharti Filling Station. 4. The claimant having remained unsuccessful in getting the awarded amount from the Insurance Company, approached the learned Commissioner by way of Execution Petition No. 39/10 of 2015. The Insurance Company filed its objections to the execution. The date of attestation of the affidavit filed in support of objection petition was 22.8.2017. The objection petition of the Insurance Company came to be dismissed by learned Executing Court vide order dated 18.11.2022. The Insurance Company challenged the order of Executing Court before this Court under Article 227 of the Constitution of India. The date of attestation of the affidavit filed in support of objection petition was 22.8.2017. The objection petition of the Insurance Company came to be dismissed by learned Executing Court vide order dated 18.11.2022. The Insurance Company challenged the order of Executing Court before this Court under Article 227 of the Constitution of India. On 30.06.2023, the challenge of Insurance Company to the order passed by the Executing Court came to be disposed of by a co-ordinate Bench of this Court in following terms: “On 19.05.2023, following order has been passed: “Heard for some time, learned counsel for the petitioner seeks time to obtain instructions. List on 16th June, 2023.” 2. When the matter was taken up, learned counsel for the petitioner sought permission to withdraw this petition with liberty to avail appropriate remedy including filing Review Petition against the judgment dated 28.7.2015 passed in FAO No. 213 of 2015. Prayer is not opposed. This petition is dismissed as withdrawn with leave and liberty as prayed for. Interim order dated 21.12.2022 stands vacated.” 5. On 25.07.2023 the instant application came to be filed. It is averred as a ground for condonation of delay that the Insurance Company was bonafide pursuing its remedy before the appropriate forum/court and for such reason the time spent by the Insurance Company in prosecuting its available remedies with due diligence deserves to be excluded. It is further submitted that the judgment passed by this Court on 28.07.2015 in FAO No. 213 of 2015 had been passed without affording any opportunity of being heard to the Insurance Company. During the entire proceedings of FAO No. 213 of 2015, the Insurance Company was neither called upon to present its case nor any notice was served upon it. The Insurance Company has further contended that it has been fastened with liability to pay compensation without their being any subsisting contract of insurance between M/s Bharti Filling Station and the Insurance Company on the date when the son of claimant Smt. Savitri Devi had died. 6. The claimant has contested the prayer for condonation of delay on the grounds that no cause much less sufficient cause has been shown by the Insurance Company for seeking condonation of delay. 6. The claimant has contested the prayer for condonation of delay on the grounds that no cause much less sufficient cause has been shown by the Insurance Company for seeking condonation of delay. It has been submitted that the Insurance Company has been grossly negligent in its conduct and now at such a belated stage it cannot be allowed to reap the benefits of its own defaults. As per the claimant the vested rights have already accrued in her favour and such rights cannot be taken away lightly. 7. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 8. It is not in dispute that the Insurance Company had been impleaded by name in the Execution Petition filed in the year 2015. The notice was served upon the Insurance Company and it had filed its objections somewhere in the month of August, 2017 as the affidavit in support of objection petition filed by the Insurance Company was attested on 22.08.2017. Thus, the Insurance Company became aware of the judgment passed by this Court in FAO No. 213 of 2015 atleast on said date. 9. The Insurance Company is now trying to take shelter of Section 14 of the Limitation Act. For application of Section 14 of the Limitation Act, it is necessary to prove that the earlier proceedings were being prosecuted with due diligence in a Court which either did not have jurisdiction or had other cause of the like nature and for such reason, such proceeding was not entertained. In addition, the applicant has also to prove good faith in prosecuting other proceedings in a Court lacking jurisdiction. 10. In the case in hand, it cannot be said that the objection petition filed in the execution proceedings by the Insurance Company were prosecution of a remedy with due diligence and in good faith before a Court, which eventually lacked jurisdiction. The Insurance Company had at its own will, opted for contesting the Execution Petition without assailing or seeking review of the judgment passed by this Court in FAO No. 213 of 2015. 11. The Insurance Company had a right to either file review against the judgment passed in FAO No. 213 of 2015 or to assail it in the higher Court immediately after having attained knowledge about the passing of judgment in FAO No. 213 of 2015. 11. The Insurance Company had a right to either file review against the judgment passed in FAO No. 213 of 2015 or to assail it in the higher Court immediately after having attained knowledge about the passing of judgment in FAO No. 213 of 2015. As noticed above, in August, 2017, the Insurance Company had become aware of the passing of the judgment. The conduct of Insurance Company cannot said to be diligent at all. In case it has failed to avail remedy within the time prescribed under law at its own option, it cannot now turn around to say that it had been prosecuting other available remedy diligently. In fact, raising objection to the execution of a judgment or an order cannot be said to be an alternative remedy to file review or appeal. The Insurance Company simultaneously had both the remedies i.e. to file review or appeal as also to contest the execution petition. Supposedly, there was no dearth of legal advice for the Insurance Company which is a public sector undertaking. In the given circumstances, I am of the considered view that the Insurance Company has not been able to make out a case of any cause much less sufficient cause for condonation of delay in filing the review petition. 12. Learned Senior Counsel for the Insurance Company has placed reliance upon a judgment passed by Hon’ble Supreme Court in Sheo Raj Singh (deceased) through LRs and others vs. Union of India and another (2023) 10 SCC 531 to canvass that the Court should adopt liberal approach while making adjudication on prayers for condonation of delay. He contended that the approach towards substantial justice should prevail upon the technicalities. 13. In my considered view the judgment relied upon by learned Senior Counsel for the Insurance Company will not help its cause for the reason firstly that the judgment on which he has placed reliance has been passed in its own peculiar facts and secondly, there is no mandate that sufficiently of cause is not to be seen in any case. 14. In Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157 , the Hon’ble Supreme Court has held as under: “23. 14. In Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157 , the Hon’ble Supreme Court has held as under: “23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.” 14. A similar reiteration of law can be found in the judgment passed by the Hon’ble Supreme Court in Brahampal alias Sammay and another vs. National Insurance Company (2021) 6 SCC 512 , wherein it has been held as under: The Court in the abovementioned cases, highlighted upon the importance introducing the concept of “reasonableness” while giving the clause “sufficient cause” a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the party’s inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties. 22. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of “sufficient cause”. 22. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of “sufficient cause”. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.” 15. Having considered above discussed facts at the touch stone of the legal position, as noticed above, I have no hesitation to hold that the Insurance Company has failed to show any cause for condoning the huge delay of more than seven years that has occurred in filing the review petition. 16. Lastly, learned Senior Counsel for the Insurance Company has submitted that the grounds of review sought to be raised by it have strong factual and legal foundations and the delay if condoned, there is every likelihood of Insurance Company succeeding in review. Be that as it may, mere meritorious case of the Insurance Company will not be sufficient for it to succeed without showing sufficient cause as contemplated under Section 5 of the Limitation Act. 17. In light of above discussion, I find no merit in the application and the same is dismissed.