Venkatesh vs Devaraju and The Manager, The New India Assurance Co., Ltd.

N.K. Patil, J.—This appeal by the claimant is directed against the judgment and award dated 8th May 2009, passed in MVC No.

1050/2007, by the Additional Civil Judge (Sr. Dn), Member, Additional Motor Accident Claims Tribunal, Hassan, (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 776 days in filing the Appeal.

The delay of 776 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, due to accident, the appellant has lost his earning capacity from in the date of accident till this date, he

could not earn anything and he could not do any work and the accident took place due to rash and negligent driving by the driver of the offending

vehicle. As a result of the fracture, he is now not in a position to perform his duty as efficiently as prior to the date of accident. All these days, he

was suffering from untold hardship, mental agony, pain and sufferings, etc. He is having severe pain in injured parts ever since the time of accident

and with pains through out his life as a result of the injured of the parts and due to severe physical disability, he is not able to move from his

residence and therefore, he says that there is a delay in filing the above appeal which is not intentional but for the aforesaid bona fide reasons and

that if the delay is not condoned, he would be put to great hardship and irreparable injury, on the contrary, no prejudice would be caused to

respondents 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 776 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 776 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.

In the entire affidavit, except the date of the impugned judgment passed by Tribunal, not even a single date is mentioned, explaining the delay.

Hence, in view of non explanation of inordinate delay in filing the appeal, in a satisfactory 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 oral evidence of PW2, Doctor, the appellant has sustained fracture of right femur and on further examined, he found that

there is a restriction in the movements of right elbow and he could not walk and stand for long time and he cannot sit cross legged position and

there is restriction in the movements of the right femur. Because of the said injuries, the Doctor has assessed total functional disability at 25% in

respect of right leg and the Tribunal, has assessed the whole body disability at 8% and awarded a sum of Rs. 48,960/- towards loss of future

earnings, assessing the income of the appellant at Rs. 3,000/- per month. The accident is of the year 2006. The appellant is stated to be running

Hair Dresses by name Swagath Hair Dresses. From Ex. P7, it is seen that he has obtained licence from the concerned Gramapanchayath for

running the same. Having regard to the fact that the said shop is run in a village in Hassan Taluk, the said income assessed by Tribunal is just and

proper.

Further, the Tribunal, after critical evaluation of the oral evidence of PW1, appellant and Dr. M.K. Harish, PW2 and documentary evidence at

Exs. P1 to P14, and Ex. R1, has awarded compensation towards medical expenses, injury, pain and sufferings, loss of future earnings, loss of

amenities, discomfort and unhappiness, conveyance, nourishing food and attendant charges and loss of earnings during treatment period, and rest,

in all a sum of Rs. 1,06,460/- for the injuries sustained in the road traffic accident. The same in view is just and proper and 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.