Bajaj Allianz General Insurance Co. vs Anil & Others

The present appeal is barred by 77 days, hence the appellant has filed the present application u/s. 5 of the Limitation Act for condonation of delay.

In order to decide the application seeking condonation of delay, it is also required to be seen as to whether the appellant is having good prima facie

case and if the delay is not condoned, it would suffer irreparable loss. It is also to be seen whether the appellant has explained sufficient cause for

condonation of delay in not approaching the Court within the period of limitation.

Facts of the case, in short, are as under. The appellant has filed the present appeal being aggrieved by the award dated 29.11.2014 by which the

learned Tribunal has awarded a compensation of Rs.2,67,000/- in favour of respondent No.1/claimant. As per claim case,on 16.1.2011 the claimant

was going on his motorcycle bearing Registration No. MP-05-MX-9540 as pillion rider along with his brother Sunil who was driving the motorcycle. At

about 6.20 pm., they met with an accident with another motorcycle bearing Registration No. MP-09-MD-1034, due to which, the appellant suffered

grievous injury in his leg. He was admitted in the hospital for a considerable long period. He lodged the FIR on 2.3.2011 after a delay of one month

and 16 days that one vehicle has dashed him. The police registered the criminal case against the respondent No.2 - owner of motorcycle bearing

Registration No. MP-09-MD-1034. The petitioner remained under treatment up to 2.9.2011 and thereafter filed the claim case u/s. 163-A and 165 of

the Motor Vehicles Act claiming compensation to the tune of Rs.8.00 Lakhs from the owner and insurance company of the offending vehicle.

In the claim case, the appellant Insurance Co. took the defence that in the MLC, the claimant has disclosed that he met with an accident with a 4-

wheeler and he disclosed this fact to the doctor who treated him, but at the time of registration of FIR, he has implanted motorcycle bearing

Registration No. MP-09-MD-1034 in order to get the insurance amount.

The learned Tribunal has disbelieved the defence taken by the Insurance Company and directed to pay the compensation of Rs.2,67,000/- to the

claimant, hence the present appeal before this Court.

Before the Tribunal, the owner of the offending vehicle remained ex-parte, therefore, the burden was on appellant to prove its defence that the

motorcycle bearing Registration No. MP-09-MD-1034 was not involved in the accident. The appellant Insurance Co. has only placed reliance over the

MLC, whereas the FIR was registered against respondent No.2, the owner of motorcycle bearing Registration No. MP-09-MD-1034. A charge u/s.

279 and 338 of the IPC were also framed and vide judgment dated 10.3.2011 (Ex. P/1), a fine of Rs.5,000/- was imposed. The appellant, Insurance

Company did not call the Investigating Officer before the learned Tribunal in order to prove its defence. The Insurance Co. could have prayed for

issuance of summons to the owner of the vehicle for the purposes of crossexamination. Therefore, the learned Tribunal had no option but to hold the

Insurance Co. is liable for payment of compensation. Hence, the appellant is not having good prima facie case in this appeal.

So far as delay of 77 days is concerned, the issue is whether it is liable to be condoned or not, as per Section 5 of the Limitation Act? The appellant

is required to explain the delay of each and every day. The appellant has filed the application for condonation of delay in a very casual manner without

explaining the delay. The appellant has simply stated that the delay is caused due to the procedure. In case of Maniben Devraj Shah v/s. Municipal

Corporation : (2012) 5 SCC 157, the apex Court has considered the scope of Section 5 of the Limitation Act in the cases where the State and its

agencies/instrumentalities are party, no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its

agencies/instrumentalities. Para 19 to 26 of the aforesaid judgment are reproduced below :-

 “19. In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556, this Court while reversing the order passed by the High Court which had

condoned 565 days delay in filing an appeal by the State against the decree of the Sub- Court in an arbitration application, observed that :

“6 the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts

have no power to extend the period of limitation on equitable grounds.

In Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106, the Court observed that a distinction must be made between a case where the delay is

inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant

factor, in the latter case no such consideration arises.

In State of Nagaland v. Lipok AO (supra), the Court referred to several precedents on the subject and observed that the proof of sufficient cause

is a condition precedent for exercise of discretion vested in the Court :

 “ ….What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be

taken into account in using the discretion.â€​

The Court also took cognizance of theusual bureaucratic delays which takes place in the functioning of the State and its agencies/instrumentalities

and observed:

 “13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought

to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, filepushing, and passing-on-the-buck ethos, delay

on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not

deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the

interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay

in presenting the appeal.â€Â 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.

What colour the expression “œsufficient€ cause†would get in the factual matrix of a given case€Â 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.

In cases involving the State and itsagencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making

process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies /

instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that

dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.

In the light of the above, it is to be seenwhether the explanation given by the respondent for condonation of more than 7 years and 3 months delay

was satisfactory and whether the learned Single Judge of the High Court had correctly applied the principles laid down by this Court for the exercise

of power under Section 5 of the Limitation Act.â€​

While dealing with the scope of jurisdiction under section 5 of the Limitation Act, as regards condonation of delay, the apex Court in the case of

Lanka Venkateshwarlu (dead) by L.Rs.Vs. State of Andhra Pradesh and others : (2011) 4 SCC 363 has observed as under:

“19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in

this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause

under Section 5 of the Limitation Act.

This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors. (1987) 2

SCC 107.

The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this

Court in the case of Balwant Singh Vs. Jagdish Singh, (2010) 8 SCC 685, as follows:-

“25. We may state that even if the term “sufficient cause†has to receive liberal construction, it must squarely fall within the concept of

reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of

“reasonablenessâ€​ as it is understood in its general connotation.â€​

The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be

adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one

party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take

away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party.

Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing

its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting

vigilantly.â€​

We are at a loss to fathom any logic or rationale,which could have impelled the High Court to condone the delay after holding the same to be

unjustifiable. The concepts such as “liberal approachâ€, “justice oriented approachâ€, “substantial justice†can not be employed to jettison

the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach

adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis

between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court

resorted to blatant sarcasms.

The use of unduly strong intemperate orextravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases.

Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled

discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The

discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form

the basis of exercising discretionary powers.â€​

In view of the above, in the present case also, the appellant has filed the application u/s. 5 of the Limitation Act in a very casual manner. The

appellant has not mentioned the date on which certified copy of the award was received, the date on which the case was sent to the company for

permission to file an appeal and the date on which the permission was granted, etc. It has simply been stated that due to exigency of work, time was

taken in getting the permission to file an appeal.

Since the appellant has failed to explain the reasons for delay , the delay cannot be condoned. Hence, the application (I.A. No.4277/2015) is

rejected. Consequently, this appeal is also dismissed.

No order as to costs.