HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No v. 1. Jagdish Kushwaha s/o

: Mr. Rahul Agarwal For Respondent(s) : Mr. Raaj Pal Choudhary HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 28/03/2025 Order

1. The instant Civil Misc. Appeal is preferred by the appellant- claimant Mukesh Jat dissatisfied from an award dated 22.01.2015 in accident claim case No.583/2011 passed by Motor Accident Claims Tribunal, Ajmer, (hereinafter referred to as ‘the Tribunal’) in a petition under Section 166 of the Motor Vehicles Act, 1988.

2. During pendency of this appeal, the claimant-appellant has expired and on 05.10.2023 time was granted and an application under Order 22 Rules 3 and 9 of CPC was filed on 15.03.2024 for taking on record the legal heirs. An application under Section 5 of the Limitation Act is also filed, for condonation of delay. [2025:RJ-JP:20127] (2 of 5) [CMA-1789/2015]

3. Learned counsel for the appellant while placing reliance upon judgment in case of Oriental Insurance Company Limited Vs. Kahlon alias Jasmail Singh Kahlon (deceased) through his legal representatives Naarinder Kahlon Gosakan and Anr.: AIR 2021 SC 3913 submitted that after death of appellant- claimant his legal heirs are entitled to be substituted in appeal to pursue the claim for loss of estate. He submitted that the term ‘loss of estate’ is required to be interpreted in broad manner and not in narrow sense. He also submitted that the maintainability of appeal can be considered at the time of final adjudication.

4. Aforesaid contentions were opposed by learned counsel appearing on behalf of the Insurance Company and submitted that no specific reason was assigned for condonation of delay and setting aside of abatement as the appeal has automatically abated on 91st day of the date of death of appellant. He further submitted that the Motor Accident Claims Tribunal (MACT) has already awarded compensation and the instant appeal is filed only for enhancement. He submitted that the appeal itself is frivolous and baseless. He placed reliance upon judgment in case of Manjuri Bera Vs. Oriental Insurance Co. Ltd. And another : 2007 ACJ 1279 (SC) and submitted that in case deceased was an earning member then his legal representative is entitled only to receive compensation under Section 140 of the Motor Vehicles Act, which was already awarded in the matter.

5. Heard learned counsel for the parties and considered the judgments of Hon’ble Supreme Court as referred by learned counsel for the parties. [2025:RJ-JP:20127] (3 of 5) [CMA-1789/2015]

6. The claimant Mukesh Jat (since deceased) has filed a petition under Section 166 of the Motor Vehicles Act before the Motor Accident Claims Tribunal, Ajmer for compensation and the MACT has awarded a compensation of ₹7,37,920/- with interest. The compensation was for his personal injuries, which includes loss of income and expenses.

7. Dissatisfied claimant (deceased) has filed instant appeal on

15.04.2015 and during pendency of this appeal, claimant Mukesh Jat has expired on 05.05.2022 but an application is filed for substitution on 15.03.2024. In the application, it was mentioned that Mukesh Jat was unmarried and at the time of his last breath, Mukesh Jat has resided with his brother Shivraj Jat and applicant Shivraj Jat has prayed for taking on record as L.R.

8. A perusal of application clearly indicate that Mukesh Jat was unmarried and he has expired on 05.05.2022. The application was not moved within time period of ninety days, rather it was moved after a delay of more than one year and ten months.

9. A perusal of application indicate that nowhere it was mentioned that mother and father of deceased are not alive. Further, it was not mentioned that except Shivraj Jat, no other brother or sister (sibling) is alive. These are very important fact as mother is class one heir and she supersedes the rights of brother (Shivraj). No document whatsoever is filed in support of application.

10. Considering that Office has pointed out about death of claimant-appellant and on 05.10.2023 two weeks’ time was granted but no application was filed within time. [2025:RJ-JP:20127] (4 of 5) [CMA-1789/2015]

11. No specific reason is assigned for condonation of delay. An application under Section 5 of the Limitation Act can be allowed, only if any sufficient cause for preferring appeal within time is assigned.

12. In case of Balwant Singh (dead) Vs. Jagdish Singh and Ors. 2010 (8) SCC 685, Hon’ble Supreme Court while considering Section 5 of Limitation Act has referred the judgment in the case of Union of India Vs. Ram Charan AIR 1964 SC 215 and observed that the explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi- benches of Hon’ble Supreme Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay. [2025:RJ-JP:20127] (5 of 5) [CMA-1789/2015]

13. In the case of Brijesh Kumar & Ors. v. State of Haryana & Ors.: (2014) 13 SCC 291, while referring the judgment of Esha Bhattacharjee v. Raghunathpur Nafar Academy & Ors.: (2013) 12 SCC 649, Hon'ble Supreme Court has laid down that sufficient cause is a condition precedent for exercise of discretion by the Court for condonation of delay. The Supreme Court further observed that the Court cannot condone the delay, if it is not properly, satisfactorily and convincingly explained, and a delay cannot be condoned on sympathetic grounds.

14. After 91st day of death of claimant Mukesh Jat, the appeal stands abated and there is no ground for setting aside abatement and condonation of delay. The legal representative is required to file application within 150 days but after 151st day, the applicant is required to show sufficient cause for condonation of delay and same is not available on record. Thus application for substitution of L.R. is time barred and cannot be allowed.

15. In view of discussion made hereinabove, the application under Section 5 of the Limitation Act is hereby dismissed. All other applications are also dismissed.

16. The appeal stands abated, hence, the same is dismissed in abatement.

17. Misc. application, if any, also stands disposed of. MR/148 supp. (ASHOK KUMAR JAIN),J