National Insurance Co. Ltd. vs Tara Chand and Others

Lokeshwar Singh Panta, J.—The above said application has been filed by the applicant-appellant National Insurance Co. Ltd. u/s 5 of the Limitation Act for condonation of delay in filing the appeal against the award dated 7.12.2001 passed by Motor Accidents Claims Tribunal, Solan in M.A.C. Petition No. 64-S/2 of 1998.

Claimant Tara Chand, respondent No. 1 herein, has filed M.A.C. Petition No. 64-S/2 of 1998 on the file of Motor Accidents Claims Tribunal, Solan, u/s 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 6,12,000 on account of the injuries suffered by him in the accident. The claimant was the driver of Canter vehicle No. HP 15-1590. On 27.9.1998 the claimant was driving the said vehicle from Kumarhati to Nahan on the highway. Bus No. HP 14-3376 being driven by Raj Kumar, the respondent No. 2 herein in a rash and negligent manner struck against the vehicle of the claimant at a place known Gandhi Gram. The claimant suffered multiple fractures to his right leg below knee. The heel of the right leg was severely mutilated and was later on amputated through operation at P.G.I., Chandigarh, where claimant remained admitted for 15 days. The offending bus is owned by Pratap Singh, respondent No. 3 and insured with the appellant insurance company. Joginder Singh, respondent No. 4 herein, is the owner of Canter vehicle No. HP 15-1590. Whereas United India Insurance Co. Ltd., respondent No. 5 herein, is the insurer of Canter vehicle.

The claimant filed the claim petition for the grant of compensation. The claim petition has been allowed by the Claims Tribunal below on 7.12.2001. A total sum of Rs. 3,13,600 has been awarded to the claimant and against the respondent Raj Kumar, the appellant insurance company and respondent Pratap Singh jointly and severally and directed to be paid by appellant insurance company within 30 days from the said order with interest at the rate of 12 per cent per annum till the final payment or realisation.

National Insurance Co. Ltd. has filed the appeal against the impugned award of the Tribunal on 31.7.2003 before this court which according to the Registry of this court is time-barred by 141 days. Thus, the insurance company has filed the application for condonation of delay of the appeal. In this application the applicant-appellant submitted that as there was a typographical error in regard to the amount of compensation in the award dated 7.12.2001, learned counsel for the applicant company had filed an application u/s 152, CPC for rectification of the error which was allowed by the Tribunal below vide order dated 15.5.2002. After order dated 15.5.2002 was recorded by the Tribunal, the applicant company submitted application on the same day for supply of the copy of the order. Copy was attested on 18.5.2002 and delivered on 24.5.2002 to the counsel conducting the case on behalf of the applicant insurance company before the Tribunal below. The certified copy of the award was supplied by the advocate to Divisional Office of the insurance company at Shimla and the Divisional Manager of the company on receipt of the order examined the case file and decided to file an appeal in this court. The file was submitted to the advocate to draft the appeal which was drafted on 20.6.2002 but since the certified copy of the award was not available, learned counsel appearing for the company before the Tribunal was requested to supply the certified copy of the award vide letter dated 21.6.2002. The advocate had applied for the certified copy on 18.7.2002 which was attested on 22.7.2002 and delivered on 23.7.2002 and thereafter on receipt of the certified copy by the Divisional Office, the present appeal was filed. According to the applicant, the delay in filing the appeal is neither wilful nor intentional but for the circumstances detailed hereinabove. In support of the application Arun Alhuwalia, Administrative Officer has filed the affidavit.

The respondent No. 1 claimant Tara Chand has contested the application. In the reply he has stated that the limitation to file the appeal is to be reckoned from the date of passing of the award and not from the order of rectification of the award as the typographical error in the award has no effect on the merits of the case at all. The mistake in the award was merely about the amount mentioned therein awarding the compensation. He stated that there is no explanation worth the name with respect to the delay from the date of passing of the award as such there is neither good or sufficient ground which may justify condonation of delay in filing the present appeal. He stated that the application lacks full and material particulars, inasmuch as the appellant has failed to specify as to on which date the certified copy of original award was applied for and the certified copy thereof was made available and the delay has occurred due to the apparent negligence of the appellant-applicant. The claimant has prayed for the dismissal of the application.

The respondent United India Insurance Co. Ltd. in its reply has stated that the application for correction of an alleged typographical mistake u/s 152, CPC filed by the applicant was decided by the Tribunal below on 15.5.2002. The subsequent application for getting a certified copy of the award was moved on 15.5.2002 which was attested on 18.5.2002 and copy thereof was supplied on 24.5.2002 (wrongly typed as 24.2.2002 by the applicant in the application). The applicant has not explained the delay so occasioned till 30.7.2002 when the application had been filed. As such the appeal is grossly time-barred and the application merits dismissal as the sole reason given for the sufficient cause is procedural departmental delays. It also stated that the intervening period between 18.5.2002 and 30.7.2002 has not been properly explained except to the extent that the appeal was drafted on 20.6.2002 and could not be filed due to lack of the certified copy. In the facts and circumstances of the case the application for condonation of delay deserves to be dismissed.

Arun Alhuwalia, the Administrative Officer of the appellant company, has filed the supplementary affidavit in support of the application. He stated that Mr. B.R. Sharma, Advocate, Solan was representing appellant insurance company in the claim petition before the learned Tribunal below who after the claim petition was decided had filed the application for the supply of certified copy of the award on 12.12.2001 which was attested on 31.12.2001 and was delivered to him on the same day. The certified copy of the award was supplied to the Divisional Office of the insurance company at Shimla in the month of January, 2002. Mr. Sharma, Advocate visited the Divisional Office of the insurance company on 1.2.2002 when it was pointed out to him that copy of award was supplied by him without rendering his opinion in the matter. Mr. B.R. Sharma, Advocate, received back the certified copy of the award with an understanding to send the same along with his opinion. Mr. B.R. Sharma, Advocate on noticing that there was typographical error in para 43 of the award to the extent of the amount of compensation awarded by the Tribunal, he filed an application u/s 152, CPC on 28.2.2002 for correction of the award. The learned Tribunal below vide order dated 15.5.2002 allowed the said application. The certified copy of the order dated 15.5.2002 was applied by Mr. B.R. Sharma on the same day which was attested on 18.5.2002 and delivered to him on 24.5.2002. The copy was supplied by Mr. B.R. Sharma, Advocate through his clerk to the Divisional Office of the company at Shimla on 28.5.2002 and thereafter, the letter dated 30.5.2002 was sent to Mr. B.R. Sharma, Advocate requesting him to supply the certified copy of the original award along with his opinion in the matter. Mr. Sharma has sent photocopy of the award dated 7.12.2001 along with his opinion which was received by the Divisional Office of the company on 14.6.2002. Again a letter dated 17.6.2002 was sent to Mr. Sharma to send the original copy of award. In the meanwhile the photocopy of the award along with the case file was sent to the advocate at Shimla for drafting the appeal in this case. The appeal was drafted on 20.6.2002 when the advocate at Shimla vide his letter dated 21.6.2002 asked the applicant insurance company to supply the certified copy of the award and accordingly another letter dated 22.6.2002 was sent to Mr. B.R. Sharma, Advocate. Mr. B.R. Sharma, Advocate had applied for another copy of the award on 18.7.2002 which was attested on 22.7.2002 and copy thereof was delivered to him on 23.7.2002. Certified copy of the original award dated 7.12.2001 was thereafter sent by Mr. B.R. Sharma, Advocate to the Divisional Office, Shimla. On receipt of the certified copy of the award the same was sent to the advocate at Shimla vide letter dated 29.7.2002 who thereafter prepared the application seeking condonation of delay in filing the appeal on 30.7.2002. The appeal along with the application for condonation of delay came to be filed in this court on 31.7.2002. The deponent has stated that the delay of 141 days occurred in filing the appeal was neither wilful nor intentional but due to the circumstances detailed hereinabove and, therefore, delay deserves to be condoned in the interest of justice.

Mr. Braham Raj Sharma, Advocate in his affidavit has stated that he appeared as the counsel for the applicant insurance company in the claim petition before the learned Tribunal below which was decided on 7.12.2001. He applied for the supply of certified copy of the award on 12.12.2001 which was attested on 31.12.2001 and the copy was delivered to him on the same day. The certified copy of the award was supplied to the Divisional Office of the appellant company at Shimla in the month of January, 2002. He visited the Divisional Office on 1.2.2002 when the Assistant Administrative Officer pointed out that the copy of the award was supplied by him without rendering opinion in the matter. So he received back the certified copy with an understanding that the same will be supplied back along with his opinion. On going through the award, he noticed that there was typographical error in para 43 of the award in regard to the amount of compensation awarded by the learned Tribunal below. He filed an application for correction of the award u/s 152, CPC on 28.2.2002 as the application could not be filed prior to that date due to winter vacations in the courts at Solan. The said application was allowed by the Tribunal vide order dated 15.5.2002. He applied for the certified copy of the order dated 15.5.2002 on the same day which was attested on 18.5.2002 and was delivered to him on 24.5.2002. The copy of the order dated 15.5.2002 was supplied by him to Divisional Office of the applicant company at Shimla through his clerk. He received intimation from the Divisional Office on 28.5.2002 requesting to supply certified copy of the original award along with his opinion in the matter. He had sent photocopy of award dated 7.12.2001 along with his opinion which was received by the company on 14.6.2002. Thereafter he received a letter dated 17.6.2002 from the Divisional Office requesting him to send the original copy of the award followed by another letter dated 22.6.2002. Thereafter, he applied for another copy of the award on 18.7.2002 which was attested on 22.7.2002 and certified copy of the award was delivered to him on 23.7.2002. Then he sent the certified copy to the Divisional Office at Shimla for necessary action in the matter.

Learned counsel for the parties have been heard at length. Mr. Ashwani Kumar Sharma, learned counsel for the appellant insurance company contended that delay is absolutely bona fide caused due to the fault of the advocate who had represented the insurance company before the Tribunal below, therefore, the appellant insurance company being public undertaking should not be made to suffer or penalised. In support of his submission he has cited and relied upon a Division Bench judgment of the Jammu and Kashmir High Court in Gurcharan Singh Vs. Kuldeep Singh, In the said judgment it has. been held that appellant Gurcharan Singh was not in any manner responsible for the delay caused in filing appeal and cannot be penalised for inaction on the part of his counsel as clerk of the counsel did not handover the paper to the appellant and appeal could not be filed within limitation.

In Rafiq and Another Vs. Munshilal and Another, it is held that a party who, as per the present adversarial legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest 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.

In State of Haryana Vs. Chandra Mani and others, their Lordships of the Supreme Court dealing with the provisions of Section 5 of the Limitation Act, 1963 have said:

"(10) It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this court- be it by the private party or the State- are barred by limitation and this court generally adopts a liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that the litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with note-making, file-pushing and passing-on-the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise-is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, a certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression ''sufficient cause'' should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day''s delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would thus be cognizant to and require adoption of a pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants..."

Again in Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma, learned Judges in para 2 have observed:

"(2) It is now well settled law that when the delay was occasioned at the behest of the government, it would be very difficult to explain the day-to-day delay. The transaction of the business of the government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice, it would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the court would be pragmatic but not pedantic..."

Per contra, Mr. Praneet Gupta, the learned counsel for claimant-respondent No. 1 contended that for filing application u/s 152 of the CPC for rectification of the typographical mistake which had crept in the award dated 7.12.2001, there was no requirement to file a certified copy of the award with the said application and the date of decision of the award will remain the same. He next contended that in supplementary affidavit filed by Arun Alhuwalia, Administrative Officer, no efforts were made to explain the days right from January, 2002 when Mr. Sharma, Advocate visited the office of the Divisional Officer of the insurance company at Shimla till May, 2002. He contended that the appeal is grossly time-barred and no sufficient cause has been shown by appellant insurance company to condone the delay. Reliance is placed on a judgment of the Gujarat High Court in New India Assurance Co. Ltd. Vs. Vijaybhai Laxmanbhai Solanki and Others, Sant Ram v. Puran Chand, Latest HLJ 2001 (HP) 1047 and State of H.P. v. Bija Ram, Latest HLJ 2003 (HP) 650. I have considered the ratio of the said decisions of the learned Judges. In New India Assurance Co. Ltd. v. Vijaybhai Laxmanbhai Solanki (supra), the learned single Judge found that the matter has been taken by the insurance company so casually and carelessly that the delay of 182 days in filing the appeal could not be condoned. The learned single Judge said that even if the time taken by the expert in giving his opinion is excluded, still there is carelessness and negligence on the part of officers of the insurance company who dealt with the matter for the purpose of filing the appeal against the impugned order. In the facts and circumstances of the case the delay was not condoned. In Sant Ram''s case (supra), the learned single Judge of this court has said that the period of limitation cannot be extended nor the delay can be condoned on the principles of natural justice, equity and fair play. Law of limitation though may at times affect a party harshly, but nevertheless it has to be applied with all its rigours. The delay in that case was not condoned as sufficient cause was not shown by the party applying for such condonation. Similar observations were made by the learned single Judge in State of H.P. v. Bija Ram (supra).

Mr. Vishal Panwar, Advocate, appearing on behalf of respondent Nos. 2 and 3, contended that Section 152, CPC does not provide modification of the award and merely permit the court to rectify any accidental slip or omission or correct any clerical or arithmetical errors. In support of the contention reliance is placed on a Full Bench judgment of the Punjab and Haryana High Court in Partap Kaur and Another Vs. Sardara Singh and Another, In the said case the scope of Section 152, CPC has been dealt with and the decision has no application of law in the facts and circumstances of the present case.

Mr. Sanjeev Kuthiala, learned counsel for United India Insurance Co. Ltd., respondent No. 5, adopted the arguments urged by Mr. Praneet Gupta, Advocate, appearing on behalf of the claimant. He has cited and relied on decisions in the cases of Government of Andhra Pradesh and Another Vs. Bactchala Balaiah Vs. OVERRULED, National Insurance Co. Ltd. v. Manoran-jan Dash 1987 ACJ 381 (Orissa) and Bar-iam Singh v. Agya Ram 2003 (1) Sim LC 25 . In Government of Andhra Pradesh''s case (supra), the learned Judges said that interdepartmental correspondence or consultation would not constitute sufficient cause for condonation of delay. The ratio of this judgment cannot be applied in the present case in view of the law laid down by the Supreme Court in State of Haryana Vs. Chandra Mani and others,

In National Insurance Co. Ltd. v. Manoranjan Dash 1987 ACJ 381 (Orissa), the learned single Judge dismissed the application of the insurance company for condonation of delay caused due to routine and leisurely inter-departmental consultations of the employees of the company.

The learned single Judge of this court in Bariam Singh''s case 2003 (1) Sim LC 25, has not found sufficient cause for condonation of delay as the delay has not been properly explained.

After giving my best consideration to the respective contentions of the learned counsel for the parties, I am of the view that law laid down in Rafiq and Another Vs. Munshilal and Another, and in State of Haryana Vs. Chandra Mani and others, and Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma, squarely applies to the facts and circumstances of the present case and delay deserves to be condoned. [Also see State of HP. v. Bhaynsroo 1993 (3) Sim LC 416 and State of H.P. v. Surat Ram 2002 (2) Sim LC 246]. The Administrative Officer of the appellant insurance company has time and again requested Mr. B,R. Sharma, Advocate to render his opinion whether it was a fit case to challenge the award dated 7.12.2001 passed by the Tribunal below by way of appeal or not. Mr. B.R. Sharma, without expressing his opinion, had chosen to file application u/s 152, CPC for rectification of the typographical mistake occurred in para 43 of the award. He has filed certified copy of the impugned award along with the said application. The Tribunal below by order dated 15.5.2002 accepted the application and ordered that the amount recorded as Rs. 1,25,000 at Sl. No. 5 of para 43 of the award be read as ''Rs. 1,00,000'' and order dated 15.5.2002 passed on the application would be deemed to be a part of para 43 of the award passed on 7.12.2001. On perusal of the certified copy of the impugned award filed with the memorandum of appeal, some correction regarding para 43 of the award was made by Reader pursuant to the order of the Tribunal dated 15.5.2002. The fault, if any, in delaying the matter lies with Mr. B.R. Sharma, Advocate, who has not advised the appellant insurance company well within time whether the appeal should be filed against the impugned award. He on his own filed the application for correction of typographical mistake crept in the award. He has not applied for certified copy of the impugned award after the application u/s 152, CPC was decided by the Tribunal below. It was only on the persistent request of the Administrative Officer of the appellant insurance company that Mr. B.R. Sharma, Advocate applied for second copy of the award on 18.7.2002 which was attested on 22.7.2002 and delivered to him on 23.7.2002. Thereafter, the advocate at Shimla prepared the application for condonation of delay on 30.7.2002 and finally the appeal was filed on 31.7.2002 along with application for condonation of delay. The appellant insurance company being a public undertaking should not be made to suffer for the fault of the counsel. No official of the appellant insurance company has been found negligent or careless in delaying the filing of the appeal.

Thus, from the narration of the facts and circumstances of the case, in my view it is a fit case for condoning the delay by giving liberal construction to ''sufficient cause'' and taking a pragmatic approach keeping in view that the insurance company is an impersonal machinery working through its officers or servants who may have worked at snail pace but they cannot be held guilty of inaction or negligence. Moreover, if delay is not condoned and appeal is not considered on merits public interest would also suffer. Accordingly, the application is allowed and delay is condoned. There is no order as to costs.