Sr.No. 03 v. New India Assurance Co. Ltd & Ors.

Mr. Uday Baskar, Advocate Coram: HON‟BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE JUDGMENT 30.05.2023 (ORAL)

1. Through the medium of instant application, the applicants are seeking condonation of delay of 2869 days in filing an appeal against award dated

15.04.2009, passed by the Motor Accident Claims Tribunal, Jammu (for short „the Tribunal‟) in claim petition titled as “Tej Krishan Raina & Ors vs Davinder Kumar.”

2. The facts riving rise to the filing of the instant application would reveal that the applicants herein filed a claim petition before the Tribunal under the provisions of the Motor Vehicles Act, 1988 for compensation owing to the death of one Meena Raina in a vehicular accident on 22.04.2005, while travelling in a motor vehicle bearing registration No. JK02P-4249.

3. The Tribunal after adjudication of the claim petition, passed the award supra on 15.04.2009 holding the claimants applicants herein entitled to an amount of compensation of Rs.4.11 lacs. 2 CM 6404/2019, Cr.Obj 21/2019

4. The Insurance Company non-applicant herein being aggrieved of the award preferred an appeal against the same on 08.09.2009 along with an application for condonation of delay. The said application for condonation of delay upon entering of appearance of the non applicants therein-applicants herein came to be disposed of on 23.08.2010 condoning the delay in filing the said appeal.

5. The grounds urged in the instant application for condonation of delay is that the applicants not being satisfied with the quantum of award passed in their favour by the Tribunal had requested the counsel engaged to file an appeal against the same which the counsel could not file on account of non availability of the applicants owing to ill health of applicant No.1 as also on account of depression of the other applicants having suffered because of the death of the deceased Meena Raina. Further the said counsel in this regard is stated to have been approached by the applicants in the month of April 2018 who is stated to have informed the applicants that the delay in filing the appeal filed by the Insurance Company stands condoned and that the applicants can also file cross objections/appeal for enhancement of the compensation even at this stage, whereafter the applicants states to have got the appeal/cross objection drafted accompanying the instant application. It is being further stated in the application that the applicants could not file the appeal in time as the counsel had informed them that the court has ample power to enhance the amount of compensation even without filing of cross appeal/cross objection, yet lately the counsel instructed the applicants to file the cross appeal.

6. Objections to the application have been filed by the non-applicant/ Insurance Company wherein it is being stated that the application is hopelessly 3 CM 6404/2019, Cr.Obj 21/2019 time barred without there being any explanation for the delay of more than 7 years. It is being further stated that the period of limitation for filing of cross objection/appeal in terms of Order 41 Rule 22 CPC is one month from the date of service upon the respondents and that in the appeal filed by the non-applicant Insurance Company, the applicants came to be served in the year 2010 itself and that the counsel for the applicants herein appeared on 07.08.2010 in the said appeal. It is being further stated that no good or sufficient grounds have been stated by the applicants for seeking condonation of delay in filing the application. Heard learned counsel for the parties and perused the record.

7. Before proceeding to analysis the grounds urged in the instant application, it would be appropriate to refer to the relevant provisions of law being Section 5 of the Limitation Act, inasmuch as, the proposition of law laid down by the Apex Court in this regard. It is established that the law of limitation has to be applied with all its rigor prescribed by a statute. Although Section 5 of the Limitation Act Samvat, 1995 provides for extension of period of limitation in certain cases, yet, the applicant seeking such extension is required to satisfy the court that there has been a ‘sufficient cause’ for not preferring the appeal or application both in the prescribed period. The Apex Court in case titled as “P K Ramachadran v State of Kerala, reported in AIR 1998 SC 2276” has laid down in para 6 as under: “Law of limitation may harshly affect a particular party but it has to be applied with all its rigor 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 4 CM 6404/2019, Cr.Obj 21/2019 filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs.” In case titled as “Perumon Bhagvathy Devaswam vs Bhargavi Amma, reported in 208 (8) SCC 321”, the Apex Court in para 13 (iii) has inter alia provided as follow: “(iii) the decisive factor in condonation of delay, is not the a satisfactory length of delay, but sufficiently of explanation”.

8. Keeping in mind the aforesaid position and principles of law and reverting back to the case in hand, it is an admitted fact that the non applicant Insurance Company filed time barred appeal on 8th September 2009 wherein the present applicants have had been impleaed as respondents and upon entering their appearance through their counsel on 28.08.2010, the delay in preferring that said appeal came to be condoned. It is also admitted by the applicants in the application that they had full knowledge and information about the appeal filed by the non-applicant Insurance Company herein and that they had engaged a counsel therein. The only ground urged in the application seeking condonation of delay of more than seven years is the alleged ailment of the applicant 1 and alleged depression of the other applicants owing to the death of the deceased. Perusal of the application, however, would demonstrates that the applicants have not placed on record any material in support of the said contentions, be it a medical prescription or a certificate evidencing the fact of alleged ailment(s). The cause/explanation shown and offered in the instant application by the applicants for seeking condonation of delay is neither convincing nor support. The application is cryptic in nature and seems to have been filed with an impression that in seeking condonation of delay, the expression ‘sufficient cause’ would receive as liberal construction in favour of the applicants. 5 CM 6404/2019, Cr.Obj 21/2019

9. Viewed in the context what has been observed and considered in the preceding paras, the application is found to be without any merit and is, accordingly, dismissed, consequently, the accompanying Cross Objection shall also stand dismissed. (Javed Iqbal Wani) Judge Jammu: 30.05.2023 Vijay Whether the order is speaking: Yes Whether the order is reportable: Yes/No