Oriental Insurance Co. Ltd. vs Sabita Roy

S.R. Mishra, J.—This is an application u/s 5 of the Limitation Act for condonation of delay in preferring the appeal which is time-barred by 471 days. When the appeal was presented a Bench of this Court directed the appellant to serve copies of the application upon the opposite parties by registered post with acknowledgment due and thereafter the matter be listed. When the case was listed on 17.6.1996 after perusing the application u/s 5 we were not satisfied that the case for condonation of delay is made out. However, the order passed on 17.6.1996 was not signed as the learned Counsel for the appellant wanted to address the court in support of Section 5 application. Accordingly, the case was posted for today.

We have heard the learned Counsel for the appellant at some length.

The reasons mentioned in the application u/s 5 are as follow:

Hundreds of claim cases arising out of motor car accidents are filed each year in different Tribunals throughout the country in which the petitioner is made a party and it is difficult for the petitioner to follow up proceedings of each case by contacting lawyers and as such the usual procedure followed by your petitioner is to entrust a case to a particular advocate who is required to keep your petitioner posted with the development from time to time. The said M.A.C.C. No. 134 of 1980 was entrusted to an advocate practising in the Alipore court who was to act in accordance with the said procedure. The last information about the position of the said case was intimated to the petitioner by the said learned advocate as per his letter dated 25.4.1980.

Thereafter no information in regard to the position of the case was received by the concerned Divisional Office of the petitioner at Howrah.

In para 7 (b) it has also been stated as follows:

On or about 12.1.1993 your petitioner received a letter dated 29.12.1992 from its Head Office at New Delhi enclosing therewith a notice dated 28.11.1992 received from the opposite party No. 1 asking for the reason as to why the award dated 4.10.1991 passed in the said matter was not satisfied.

Thereafter it has been stated that enquiry was made and application for the copy of the appeal was filed.

A perusal of the explanation would go to show that the real cause shown in support of the condonation of delay is the administrative exigency and as a matter of fact it does not disclose the reasons that who was the advocate who was entrusted with the case and once a letter as far back as on 25.4.1980 was received from the said advocate who is said to have been entrusted with the case. Thereafter it was the duty of the Divisional Office or any other office having authorisation to look after the case pending before the Claims Tribunal to find out as to what happened in the case and for a period of about 13 years, the office was sleeping over the matter and it is only on 12.1.1993 when a letter from the Head Office, New Delhi was received then the Divisional Office started making enquiry of the case. It is not a case where from the very beginning the appellant has no knowledge of the case, but on the other hand, they received notice and they also appeared before the Claims Tribunal, but on the later days the case was taken up for hearing on 2.8.1989, 20.3.1990, 31.7.1990, 5.2.1991 19.2.1991 and 25.9.1991. The case was taken up as we find from the judgment impugned which are as follow:

In presence of Mr. Dipak Kumar Mukherjee, Advocate for the petitioners and of Mr. T.K. Banerjee, Advocate for opposite party No. 2 and of Mr. S. Guha Thakurta, Advocate for O.P. No. 2 (a), in the memo pertaining to the judgment Oriental Insurance Co. Ltd., appellant as the opposite party No. 2 and National Insurance Co. as opposite party No. 2 (a) though in the application in support of the condonation application it has been stated that it is true that on earlier days, the learned Counsel for the appellant was present but on the last date of the hearing, in spite of the repeated call he was not present which is said to be taken out of the order sheet of that date said to have been supplied by the learned Counsel for the appellant. It is a clear case of sheer negligence on the part of the appellant in pursuing this case and we are not satisfied that the explanation offered in support of Section 5 application makes out a case and if it is the negligence on the part of the office or there is no material before us to show that the office of the appellant has done its duty and it was the mistake on the part of the learned Counsel in not looking after the case. A class one officer of the State Bank met with an accident. He was about 38 years of age. The insurance company carrying on a business towards the miseries of human beings arising out of accident is supposed to deal with the cases of compensation with due diligence. It is obvious on the record of the present claim case that there was no system in the administrative department of the appellant (insurance company) and the authorities have voluntarily neglected in pursuing the matter although the matter was kept pending before the Claims Tribunal for such a long period of about 13 years.

Section 5 of the Limitation Act extends prescribed period of limitation in filing an application or an appeal. What constitute sufficient cause cannot be laid down by hard and fast rules. In New India Assurance Co. Ltd. v. Shanti Misra 1976 ACJ 128 (SC), the Apex Court held that the discretion given by Section 5 should not be defined or crystallised as to convert a discretionary matter into rigid rule of law. The Apex Court has further said that the expression ''sufficient cause'' should receive a liberal construction. As has been held in Brij Inder Singh v. Kanshiram AIR 1917 PC 156, it was observed that the true guide for a court to exercise the discretion u/s 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal; in such matter what is relevant consideration for exercising the discretion is that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

It is true that in Mata Din Vs. A. Narayanan, the Apex Court held that there is no general proposition that a mistake of a learned Counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. The crux of the matter is that when the mistake of a learned Counsel was bona fide then Section 5 is clearly attracted. Whether there is sufficient cause for condonation of delay is essentially a question of fact depending upon the facts and circumstances of a case. It is also to be taken note of that in the normal course the leaning of the court is to decide a matter on merit and when a question of discretion of exercising the jurisdiction u/s 5 of the Limitation Act arises as stated earlier it should receive a liberal construction but when a party with a false plea to get rid of limitation barred by not supplying the materials so that the bona fide of a party could be considered. The court should not encourage such a person by condoning the delay. In the present case, when the claim petition on the death of a person was filed in the year 1980 we have already observed that the delay has not been explained and the reasons mentioned in support of Section 5 application are not bona fide.

Accordingly we are satisfied from the materials on the record that no sufficient cause has been made out for condoning the delay. Accordingly, the application for condonation of delay u/s 5 is rejected. The appeal becomes incompetent and accordingly, it is dismissed as incompetent.

The stay order, if any, stands vacated. The learned Counsel for the parties are permitted to take out the gist of the order.

S. Narayan, J.

I agree.