Gurcharan Singh vs Kuldeep Singh

The Motor Accident Claims Tribunal, Jammu in claim petition filed by the respondent herein has awarded compensation to the extent of 1.40

lacs payable by the petitioner herein vide order passed on March, 17, 1986. Petitioner has filed appeal against the said award. Along with Appeal

he has filed the present application for condonation of delay.

The petitioner has alleged in this application that he applied for copy of the award on March, 19,1986 and copy was delivered to his father on

27-3-1986 after which he entrusted the same to Shri B.K. Bhasin, Advocate who was his counsel, alongwith affidavit and vakalatnama. He has

further alleged that he was told by his Advocate that appeal had been filed. He did not receive any notice about the case and became suspicious

and requested the Advocate to accompany him to the High Court Registry to find out present position of the appeal on which the advocate asked

him to come to his residence on 9-1-1986. Petitioner's further plea is that on 9-1-1987 when he went to the house of his advocate at Sarwal he

was not available but his wife delivered him the file containing copy of judgment, Vakalatnama and affidavit pointing out that no appeal had been

filed. On the same day he engaged Shri H.L. Bhagotra advocate and explained all circumstances to him who filed the appeal and present

application. He has further alleged that he was misled by his counsel, Shri B.K. Bhasin who not only got vakalatnama, copy of judgment and

affidavit but also fee of the case and in spite of that he kept him in dark.

Respondent has filed objections op-posting the application of the petitioner and denying his allegations. According to him the applicant has not

been able to make out a sufficient cause for condoning the delay.

The petitioner, besides himself, has examined his father Shri Piara Singh as witness. Respondent has produced Shri B.K. Bhasin Advocate as

witness.

We have heard the learned counsel for the parties and perused the record. Mr. Bhagotra, learned counsel appearing for the petitioner has

argued that the delay in filing appeal has not been caused due to the fault or negligence of the petitioner but it was due to the Negligence of his

counsel, Shri B.K. Bhasin, who kept the papers with him and wrongly informed the petitioner about the filing of appeal before the High Court and

under such circumstances the petitioner is entitled to claim condonation of delay. Mr. Thakur, learned counsel for the respondents, on the other

hand, has contended that the plea of the petitioner and his statement made before the Court as well as that of Shri B.K. Bhasin Advocate are

contradictory in nature and no cause has been shown for condonation of delay.

Period of limitation provided for filing appeal in such like cases is 90 days. Present appeal has been filed after more than nine months of the date

of award. Appeal is thus certainly time barred. Admittedly the provisions of Section 3 of the Limitation Act for condoning delay does not apply to

such cases. There is, however, a proviso to Section 110-D(i) of Motor Vehicles Act which permits for entertaining appeal after expiry of period of

limitation if the court is satisfied that appellant was prevented by sufficient cause from preferring the appeal in time. Petitioner's case is that in

March, 1986 he handed over copy of the award along with his affidavit and Vakalat-nama and also fee of the case to Shri B.K. Bhasin advocate

for filing appeal, who did not do so and for this negligence of the counsel he is not required to be penalised. The first question thus requiring

determination is whether abovesaid allegation of the petitioner is correct and thereafter the second point requires to be decided is whether

negligence of the counsel in such like matters can offer a ground for condoning the delay.

Shri B.K. Bhasin Advocate has been produced by the respondent in this case. In his statement he has admitted that the petitioner approached

him for filing appeal, probably in the month of April, 1986, and engaged him also for it. According to him he drafted the appeal but he met with an

accident due to which he could not file appeal. He has further stated that he asked his clerk to hand over the papers to the petitioner but after that

he found that the clerk had not given the papers to the petitioner. This witness has further admitted that petitioner came to him in the month of

January, 1987 when papers were handed over to him.

We think that in view of the statement of Shri Bhasin other evidence of the petitioner and his father does not require analysis. When we consider

the statement of Shri Basin, we find that it was he who was responsible for delaying the filing of appeal. He met with an accident and could not file

appeal.

Their Lordships of the Supreme Court in case Rafiq and Another Vs. Munshilal and Another, has considered such like point and has held that a

party should not suffer for misdemeanour or inaction of his counsel where his appeal is dismissed for default of his counsel. It has been laid down in

this case that a party who, as per present adversary legal system, selected his advocate, briefed him and paid his fee can remain supremely

confident that his lawyer will look after his interests and such an innocent party, who has done everything in his power and expected of him, should

not suffer for the inaction, deliberate omission or misdemeanour of his counsel. This court has also followed similar principle in case Om Parkash

Vs. Mohant Hari Krishen, . In another case Smt. Lachi Tewari and Others Vs. Director of Land Records and Others, it has been held that where

petitioner had taken care to engage three lawyers and nothing more could be expected of him and further he had taken steps to file an early

application to avoid being thrown out unheard, and under such circumstances he was entitled to restoration of his case beyond the period of

limitation.

In the present case the facts reveal that the petitioner took all possible steps to file appeal in time. He obtained copy of the award immediately

after passing of it, and handed-over the same to his counsel Shri B.K. Bhasin, along with affidavit, power of attorney and also paid the fee. The

Counsel who met with accident remained bed-ridden and was negligent in filing appeal before this court or handing over the papers to the

petitioner. Mr. Thakur has laid stress that action of the counsel amounted to misconduct on his part for which action under law could be taken

against him but, according to him, the petitioner is not entitled to have relief of condonation of delay. We, however, are not prepared to accept this

argument. No doubt Shri Bhasin was negligent but that was also due to the circumstances beyond his control as he had met with a serious

accident. Petitioner was however, not in any manner responsible for the delay caused in filing the appeal. Petitioner cannot be penalised for inaction

on the part of his counsel. He has shown sufficient cause for not filing appeal in time. As such this application is allowed and the delay in filing

appeal condoned.