Ambanna vs V. Renukappa and Others

B. Veerappa, J.—1. The appellant claimant filed the above appeal against the order dated 25.09.2012 made in Misc. Case No. 6/2012 on the file of the Principal Senior Civil Judge & JMFC, Hospet, dismissing the application under Section 5 of the Limitation Act.

The claimant filed M.V.C. No. 920/2007 claiming compensation of Rs. 5,10,000/- alleging that he is the permanent resident of Chitwadigi Village, Hospet Taluk and was working as a coolie and met with an accident on 23.12.2006, sustained grievous injuries and therefore, he filed M.V.C. case for compensation.

After framing issues, case was posted for the claimant''s evidence. Due to the injuries, the claimant developed severe headache during the year 2008 and reason was not known and very recently on 20.03.2012 when he approached his advocate, he came to know that on 06.10.2008 his petition was came to be dismissed. Subsequently, the claimant filed Miscellaneous Case No. 6/2012 and there was delay. Therefore, he filed I.A. No. 1 under Section 5 of the Limitation Act to condone the delay. The said application was resisted by the present respondent No. 2 by filing objections.

After consideration, the Principal Senior Civil Judge and J.M.F.C., Hospet, by his impugned order dated 25.09.2012 dismissed the application i.e., I.A. No. 1 for condonation of delay. Consequently, dismissed the Miscellaneous Petition mainly on the ground that the appellant has not satisfied the delay of 3 1/2 years in filing the Miscellaneous Petition. Hence, the present appeal is filed.

I have heard the learned counsel for the parties to the lis.

Shri V.S. Kalasurmath, learned counsel appearing on behalf of Shri Suresh P. Hudedagaddi for the appellant contended that the impugned order passed by the Trial Court in dismissing the application is contrary to law and facts of the case. The Trial Court failed to notice that the appellant was a claimant before the Tribunal filed the M.V.C. case for compensation due to the injuries sustained by him under a road accident and he has explained the delay. The Trial Court without considering the material has proceeded to dismiss the application and consequently dismissed the miscellaneous petition without any basis. Therefore, he sought to set aside the order passed by the Trial Court by allowing the appeal.

Per contra, Smt. Vaishali K. Kaladagi, learned counsel appearing on behalf of Shri Shivakumar S. Badawadagi for the 2nd respondent vehemently contended that the appellant is not diligent in prosecuting M.V.C. No. 920/2007. When the matter was posted for evidence, it is the duty of the appellant to lead evidence and the said M.V.C. case came to be dismissed for default. Subsequently, he filed the Miscellaneous Case No. 6/2012 after inordinate delay of 3 1/2 years and there is no sufficient reason to condone the delay. Therefore, they sought to justify the impugned order passed by the Trial Court.

Shri T. Basavana Goud, learned counsel for the respondent No. 1 supports the contention of the learned counsel for the 2nd respondent.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

It is not in dispute that appellant met with an accident on 23.12.2006, thereby sustained grievous injuries, such as fracture of scalp, head injury, fracture or right querulous temporal bone, etc. Therefore, he filed M.V.C. No. 920/2007 claiming compensation. It is also not in dispute that the present respondent also filed objections before the Trial Court and after framing issues, matter was posted for evidence on 06.10.2008 and on that day, claimant and his counsel was absent. Therefore, the trial court dismissed the petition. The Trial Court while dismissing the petition for default ought to have given opportunity to the appellant to putforth his case, since the appellant filed M.V.C. for claiming compensation, though an opportunity was given to the appellant, but it is the mistake on the part of the learned counsel who represents the claimant before the Tribunal and the matter came to be dismissed. Because of the fault on the part of the learned counsel for the claimant, party should not suffer in view of the dictum of the Hon''ble Supreme Court in the case of Rafiq and another vs. Munshilal and another reported in , AIR 1981 SC 1400 which held in para 3 is as follows:

"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court''s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the leaned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi."

Apart from that, the appellant has specifically stated in the affidavit along with the application for condonation of delay that during August 2008, he has developed severe headache due to the injury and also undergone with serious medical procedures to ascertain the cause for headache. Therefore, he could not be able to contact his advocate and the matter came to be dismissed for default for non-representation when the case was called.

It is also contended in the application that he had intimated to the advocate that he is unable to attend the Court and his advocate assured that he will request the Court to take further time to lead evidence in the said claim petition and because of his severe headache and other ailments, in view of the accident, he could not attend the Court and the Doctor who treated him advised to take bed rest, as such, he could not attend the Court as well as the office of the counsel. In the meanwhile, he came to know that the said case was dismissed on 06.10.2008. The non-representation on 06.10.2008 by the claimant was due to the bona fide reasons and not intentional one. The Trial Court ought to have considered that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. In the present case, the delay is due to the injuries and illness on account of accident occurred. Therefore, that cannot be considered as an intentional delay and on that ground alone, the claim of the claimant cannot be thrown out at the very threshold on account of delay, since the claim petition filed for claiming compensation.

Taking into consideration, utmost the claimant shall be denied the benefit of interest for the delayed period. The Trial Court without considering the said aspect of the matter and without taking into consideration the very claim petition filed for claiming compensation thrown out at the very threshold without any compensation for the severe injuries borne by him in the accident.

Taking into consideration the physical and mental sufferings of the claimant, who sustained grievous injuries in the accident and taking into consideration the claim petition filed for compensation, the interest of justice would be met if delay is condoned and an opportunity is given to the claimant to proceed with the case by denying the interest for the delayed period from 06.10.2008 to 17.02.2016.

In view of the aforesaid reasons, the appeal filed by the appellant is disposed of. The impugned order passed by the Trial Court dated 25.09.2012 made in Miscellaneous Case No. 6/2012 is set aside. Application filed for condonation of delay is allowed. The order dated 06.10.2008 is set aside. M.V.C. No. 920/2007 is restored, subject to the condition that the claimant is not entitled to any interest from 06.10.2008 till today i.e., 17.02.2016, in case if he succeeds in the claim petition.

Ordered accordingly.