National Insurance Co. Ltd vs Javid Ahmad Malik And Others

In the instant application, applicant-company seeks condonation of delay in filing an appeal under Section 173 of the Motor Vehicles Act, 1988

against an award dated 27.05.2013 passed by the Motor Accidents Claim Tribunal, Ramban ( for brevity†Tribunal), in Claim petition No. 19/2013

titled as „Javid Ahmed Malik vs. Mohd Yaqoob Rather and others‟.

The background facts those emerge from the case in hand are that on 02.05.2004 Non-applicant/respondent No. 1 herein while riding a scooter met

with an accident and received injuries as a result of which he suffered permanent disablement to the extent of 30%. The claimant-respondent No. 1 at

the time of accident was 30 years old.

The Non-applicant/respondent No. 1 instituted a claim petition under Sections 166/140 of Motor Vehicle Act and a contesting award came to be

passed by the Tribunal on 27.05.2013 allowing an award of Rs.1,40,000/-.

The aforesaid award (supra) is questioned in the appeal accompanying the instant application.

The case set up by the applicant â€"company in the application for condonation of delay in filing the appeal is that upon passing of the award on

27.05.2013 by the Tribunal, the applicant-company‟s counsel defending the case at Ramban applied for certified copy on 05.08.2013, whereafter

counsel for the applicant-company is stated to have sent the certified copy of the award to the applicant-company by registered post stated to have

been received on 22.08.2013 and whereupon the legal section of the applicant-company is stated to have bonafidely considered the impugned award

and obtained opinion of the defending counsel as well. The entire claim file along with copy of the award is stated to have been sent to the Regional

Office at Chandigarh for their consideration/permission, since as per the norms of the company, it is only the Regional office which is competent to

decide whether appeal should be filed against the award or not.

It is being stated that the entire claim file was bonafidely considered by the Regional Office of the applicant-company at various levels for which

the file had to move from table to table and from officer to officer, thereby resulting into ubintentional delay. It is further being stated that the facts as

detailed out in the application, constitute a good and sufficient cause for condoning the delay of 59 days in filing the appeal.

Per contra, respondents-non-applicants 2 and 3 have filed objections in opposition to the instant application and seek dismissal of the same on the

premise that no important question of law is involved in the appeal accompanying the instant condonation application and that in the memo of appeal it

is wrongly alleged that driving license of respondent No. 3 was fake, as no evidence had been produce by the applicant-company in this regard. The

further stand taken in the objections is that respondent No. 3 was possessing a valid licence and was authorized to drive heavy passenger motor

vehicle (Bus) at the time of accident. It is further averred in the objections that no cogent reason has been mentioned by the applicant-company in the

condonation application for not filing appeal within time.

Heard learned counsel for the parties.

Before proceeding to analyze the application and grounds urged therein for condonation of delay it would be appropriate and advantageous to refer

to the legal position enumerated by the Apex Court on the subject of condonation of delay.

The law on the subject of section 5 of the Limitation Act is no more res integra and there is a long line of decisions rendered and delivered by the

Hon‟ble Apex Court on the subject.

It is established that the law of limitation has to be applied with all its rigor prescribed by a statute. Although Section 5 of J&K Limitation Act

Samvat , 1995 provides for extension of the period of limitation in certain cases, and appellant/applicant seeking such extension is required to satisfy

the court that there has been a sufficient cause for not preferring the appeal or making the application within the prescribed period.

Apex Court in State of Madhya Pradesh and others and Bherulal, 2020 (10) SSC 654, at paras 3 and 5 has observed as under: -

“3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial

pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government [LAOv.Katiji]. This

position is more than elucidated by the judgment of this Court in Post Master General v. Living Media India Ltd. (2012) 3 SCC 563 where the Court

observed as under:-

“27) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of

limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation

when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation,

we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party

before us.

28) Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of

bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department

cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making

several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody

including the Government.

29) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and

acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for

several months/years due to considerable degree of procedural red- tape in the process. The government departments are under a special obligation to

ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated

benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30) Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according

to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.†Eight years hence

the judgment is still unheeded!

A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is

good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the

jurisdiction of the Court in an appropriate case to condone the delay.â€​

The Hon‟ble Apex Court in Perumon Bhagvathy Devaswam vs. Bhargavi Amma, 2008 (8) SCC 321, at para 13 (iii) enunciated besides others the

following principle qua an application under Section 5 of the Limitation Act:-

“(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.â€​

A Reference to a judgment of the Hon‟blr Apex Court reported in AIR 1998 SC 2276, titled as P. K. Ramachadran v. State of Kerala would also

be appropriate and advantageous, wherein at para 6 following is noticed.

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

no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was thus, neither proper nor judicious.

The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the

application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by

time. No costs.â€​

Keeping in mind the above legal position enunciated by the Apex Court what emerges from the perusal of the record and pleadings of the

applicant-company is that the applicant-company has failed to give any plausible reasons for condoning the delay in filing the appeal. The averments

made by the applicant-company in the application for condonation of delay do not constitute sufficient cause for condonation of delay. The appellant

has made vague averments in the application. In para 2 of the application, it is stated that the impugned award was passed on 27.05.2013 and the

certified copy was applied for by the applicant‟s counsel on 05.08.2013 which was delivered to the counsel on 15.08.2013 and received by the

applicant-company on 22.08.2013. No explanation has been given in the application about the delay on the part of the applicant‟s counsel to apply for

the certified copy on 05.08.2013 and delay in handing over the certified copy to the applicant-company on 22.08.2013. In para 4 of the application, it is

stated that the entire claim file along with the copy of the award as also with the opinion of the defending counsel was sent to the Regional office at

Chandigarh through legal section of the applicant-company and considered at various levels for which the file had to move from table to table and

from officer to officer. Neither any affidavit of the concerned Officer has been filed who had custody of the claim file for consideration nor any

details and dates are provided in this regard. It is stated that the defending counsel of the applicant-company delivered the certified copy of the award

to the applicant-application on 22.08.2013, for the reasons best known to him meaning thereby that the applicant-company is not even aware of the

said reasons. This may show negligence on the part of the counsel for the applicant-appellant, yet the same negligence seems to be contributed as the

applicant-company has not made any effort to ascertain the said reasons from the counsel. Even after 22.08.2013, the applicant has taken more than

three months to file the appeal and there is no sufficient explanation offered for the said period as well.

The application in hand seemingly is filed with the impression that in seeking condonation of delay, the expresses „sufficient cause‟ would

receive as liberal construction in favor of the appellant-applicant being an agency of the Government. It is however, manifest and without any doubt

that the explanation offered by the appellant /applicant in the application in hand cannot by any sense of imagination said to be sufficient, plausible, and

cogent. The explanation per se is cryptic and casual.

Risking repetition it is worth mentioning herein that the instant application relates to condonation of delay in filing an appeal under Section 173 of

the Motor Vehicles Act, against an award passed in favour of the non-applicant/respondent No. 1 who suffered 30% disability on account of a

vehicular accident. A claim lodged before the Tribunal and an award passed thereon in such cases aims at providing cheap and speedy remedy and

justice by way of compensation to a victim. A justice oriented approach thus, in such matters is possible if the courts lean against the casual and non-

diligent approach and unbecoming conduct of the applicants seeking condonation of delay in filing the appeals against such awards, unless, a sufficient

cause is shown in tune and line with the principles and propositions laid down by the Hon‟ble Apex Court. The said principle of sufficient cause,

however, as noticed above is missing in the instant case..

Viewed in the context what has been observed, considered and analyzed hereinabove, the application in hand is found to be without any merit and

is, accordingly, dismissed, as a consequence whereof the accompanying appeal shall also stand dismissed.

Dismissed along with connected IA(s)