Smt. Leela @ Leelavathi vs Mohammed Musthafa and The ICICI Lombard General Insurance Co., Ltd.

N.K. Patil, J.—This appeal by the claimant is directed against the judgment and award dated 14th December 2010, passed in MVC No. 1005/2008, by the II Additional District Judge and Member, Motor Accident Claims Tribunal-III, D.K., Mangalore, (for short, ''Tribunal'') on the ground that the compensation awarded is on the lower side and is liable to be enhanced. Along with the appeal, learned counsel appearing for appellant has also filed I.A. 1/2011, seeking condonation of delay of 256 days in filing the Appeal.

The delay of 256 days in filing the appeal has been explained at paragraphs 4 and 5 of the affidavit filed in support of the application, I.A. 1/2011. In the said affidavit, it is stated that the impugned judgment is passed by the Court below on 14th December, 2010 and the certified copy was applied on 15th December, 2010 and the copy was ready on 1st January, 2011. Thereafter, at paragraph 5, it is stated that the Advocate advised the claimant that there is 256 days time to file the above appeal and that she was in deep financial crisis and after mobilizing the money from her friends and well wishers, she could prefer the above appeal. Therefore, she could not prefer the appeal well in time and she has stated that the said delay in filing the above appeal is not intentional, but the same is for aforesaid reasons and that if the delay in filing the above appeal is not condoned, she would be put to irreparable injury and hardship, but, on the other hand, no hardship or injury would be caused to the other side, if the delay is condoned.

I have heard the learned counsel appearing for appellant and perused the statements made in the affidavit, accompanying the application, I.A. 1/2011.

After going through the statements made in the affidavit filed in support of the application, I am of the considered view that the inordinate delay of 256 days in filing the appeal has not been explained satisfactorily by assigning valid and cogent reasons. The explanation offered is in a very casual manner. Except making bald statements, no credible or trustworthy reasons are assigned for explaining the delay of 256 days in filing the appeal. Whenever there is inordinate delay, the party is bound to explain each day''s delay in filing the appeal by setting out the dates and events. Further, it can be seen that, at paragraph 5, it is stated that the Advocate advised the claimant that there is 256 days time to file the appeal. The said statement is totally baseless and cannot be sustained at all and it shows sheer non application of mind while drafting the delay application. Hence, in view of non explanation of inordinate delay in filing the appeal, in a proper manner, I am of the view that delay cannot be condoned nor the appellant has made out a good case to condone the delay. Hence, for the foregoing reasons, I.A. 1/2011 is dismissed as misconceived.

However, in the interest of justice and equity, I have gone through the impugned judgment and award passed by Tribunal. After perusal of the same, it is seen that as per Ex. P16, Wound Certificate, the appellant has sustained lacerated wound 1 cm x 0.5 cm x skin deep on scalp over frontal region and tenderness over back. As per X-ray of the back, there is multiple compound fracture of upper thoracic T7 with organo patic changes T3 to T7. As per Ex. P18, Discharge Summar, issued by the Government Wenlock Hospital, Mangalore, the claimant has sustained fracture of 3rd, 4th, 5th and 6th ribs on right side and X-ray of spinal chord showed T3, T4, T5, T6 and T7 vertebral fracture. She is also treated as in-patient in the said Hospital from 26-11-2007 to 4-12-2007 for a period of nine days. Therefore, a sum of Rs. 30,000/- towards injury, pain and sufferings and Rs. 6,250/- awarded towards conveyance, nourishing food and attendant charges is just and proper and the Tribunal is also justified in awarding a sum of Rs. 6,000/- towards loss of earning during treatment period. Further, it can be seen that the claimant has suffered 35% functional disability. The Tribunal has rightly assessed the whole body disability at 10% and awarded a sum of Rs. 25,200/- towards loss of future earnings on account of disability. The same in my view is just and proper and it does not call for interference.

The Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly awarded compensation under all the heads. Hence, it does not call for interference. Therefore, the appeal filed by appellant is liable to be dismissed. For the foregoing reasons, the appeal filed by appellant is dismissed both on the ground of delay and laches as also on merits.