Raja Ram Gurjar S/o Anandilal R/o Tigaria, Tehsil Chaksu, vs Smt. Rajanti Alias Raji W/o Ramkuwar Meena, R/o on 09 Jan 2025

Judgment

1. Smt. Rajanti Alias Raji W/o Ramkuwar Meena, R/o Gokulpura

3. Dayaram S/o Ramkuwar Meena, Gokulpura, Tehsil Lalsot, Bhouri Lal S/o Hardev Meena, R/o Gokulpura, Tehsil Lalsot

4. Smt. Kesar W/o Bhouri Lal Meena, R/o Gokulpura, Tehsil Lalsot District Dausa

5. Noordin S/o Bhambhal, R/o Rasgan, Police Station Ramgarh, District Alwar

6. Icici Lombard General Insurance Company, Above P.l. Motors, M.i. Road, Jaipur ----Respondents For Appellant(s)

: Mr. Prahlad Sharma with Mr. Ram Prasad Sharma For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 09/01/2025 Order

1. Instant Civil Misc. Appeal is preferred by appellant-non- claimant aggrieved from award dated 10.08.2009 in claim case No. 752/2007 passed by learned Motor Accident Claims Tribunal, Dausa. Learned Tribunal has awarded compensation and directed insurance company to pay compensation to claimants and recover from present appellant (owner of offending vehicle). [2025:RJ-JP:3502] (2 of 8) [CMA-5958/2018]

2. Office has pointed out a delay of 3311 days in filing the instant appeal and an application under section 5 of Limitation Act is filed for condonation of delay. Learned counsel for appellant while relying upon judgment in case of N. Balakrishnan Vs. M. Krishnamurthy (civil appeal Nos. 4575-76/1998), and New Okhla Industrial Development Authority Vs. Rameshwar @ Ramesh Chandra Sharma (dead) 2022 SCC online SC 1599 submits that appellants were not aware about the award passed by learned Tribunal and when recovery notice of execution proceedings were issued against them, then only they came to know about the award passed by the Tribunal. He further referred the judgment in case of Jagdish Kumar Sood Vs. United India Insurance Co. Ltd. 2018(1) WLC (SC) Civil 702 and Mukund Dewangan Vs. Oriental Insurance Company (2017) 14 SCC 663 and submits that as per definition clause under section 2(21), 2(15) and 2(48) of Motor Vehicle Act, if a driver is licensed to drive light motor vehicle having weight of 7500 kg, then he is entitled to drive a commercial transport vehicle of same category. He also submits that after legal position settled by Hon’ble Supreme Court, the appellant is entitled to challenge the award dated 10.08.2009. At last, he submits that appellant is a poor person and in case delay is not condoned and the matter is not considered on merits, then the appellant has to suffer irreparable loss.

3. Heard learned counsel for the appellant and perused the material placed on record. Also perused the judgments as referred by learned counsel for appellant. [2025:RJ-JP:3502] (3 of 8) [CMA-5958/2018]

4. In case of N. Balakrishnan Vs. M. Krishnamurthy (supra) Hon’ble Supreme Court has laid down that length of delay is immaterial and acceptability is also criteria in condonation of delay. in case of New Okhla Industrial Development Authority Vs. Rameshwar @ Ramesh Chandra Sharma (supra), Hon’ble Supreme Court has condoned the delay of more than 22 years while considering appeal for enhancement from land acquisition. In case of Jagdish Kumar Sood Vs. United India Insurance Co. Ltd. (supra) Hon’ble Supreme Court has laid down that if a motor vehicle having unladen weight up to 7500 kg is within the definition of light motor vehicle (LMV) and a driver having valid and effective licence to drive LMV then he can drive a transport vehicle of same category without separate endorsement on licence. Similarly, the issue was considered in case of Mukund Devagan Vs. Oriental Insurance Company (supra). Herein, in instant case the appellant-non-claimant was driving a JCB and an accident was caused by driver of JCB on 29.09.2007 which resulted into death of Ram Kumar. On basis of this claim petition, an award was passed by Learned Tribunal, but pay and recovery rights were given to insurance company after satisfaction of the award.

5. A perusal of award indicate that present appellant was well represented before the Tribunal as he filed reply to the petition. The appellant has failed to submit any evidence. Learned Tribunal while considering issue No.3 has observed that driver was authorized driver of LMV, but he was driving a heavy vehicle (JCB) at the time of accident and not having any driving licence to drive heavy vehicle. [2025:RJ-JP:3502] (4 of 8) [CMA-5958/2018]

6. As per registration certificate, the category of vehicle was heavy vehicle and Tribunal has opined that only on ground that the unladen weight of vehicle is 7500 kg, the vehicle cannot be considered as light motor Vehicle (LMV). In this case the category of vehicle is heavy vehicle and the category has been decided by the Transport Department at the time of registration. The JCB is not a light motor vehicle rather it is a special vehicle used for special purpose requires special skill to operate.

7. A Constitution Bench of Hon’ble Supreme Court in case of M/s Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi & Ors. 2024 INSC 840, considered similar issue of license to drive LMV and not having specific authorization to drive transport vehicle.

8. Herein, this case the delay is of 3311 days. Section 5 of the Limitation Act prescribes that any appeal or revision or an application may be admitted after the prescribed period, if the appellant or the petitioner satisfies the Court on sufficient cause for not preferring an appeal or revision or making an application within prescribed period. 9. In case of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Hon’ble Supreme Court laid down the following principles to allow application under Section 5 of the Limitation Act:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. [2025:RJ-JP:3502] (5 of 8) [CMA-5958/2018]

3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay. every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

10. 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 [2025:RJ-JP:3502] (6 of 8) [CMA-5958/2018] 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.

11. 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.

12. Very recently condonation of delay under Section 5 of Limitation Act was considered by Hon’ble Supreme Court in case of P. Subba Reddy (died) by LRs. And Ors. Vs. Special Deputy Collector (LA) 2024 INSC 286 wherein also it was held that unless sufficient cause is shown the application under Section 5 of Limitation Act cannot be allowed. The underlying provisions after harmonious construction of provision of law were formulated in following manner:- (i) Law of limitation is based upon public policy that there should be an end to litigation by [2025:RJ-JP:3502] (7 of 8) [CMA-5958/2018] forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the L imitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; liberal (iv) In order to advance substantial justice, justice-oriented approach, though approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamount to disregarding the statutory provision.

13. The law over the point is settled that any judgment cannot be recalled or reviewed or challenge in appeal only on the ground that after some years, the interpretation of law has changed. In this case, the offending vehicle is heavy vehicle and same was categorized by Transport Department. The registration certificate under heavy vehicle category was never challenged by the appellant, therefore the appellant cannot take the benefit of [2025:RJ-JP:3502] (8 of 8) [CMA-5958/2018] judgment of Jagdish Sood (supra) and Mukund Devagan (supra). The delay is an important factor in considering the instant civil miscellaneous appeal. There is no ground to condone the delay, therefore, the application for condonation is dismissed and as a result of which, instant civil miscellaneous appeal is also dismissed.

13. No order as to costs. MONU /7 (ASHOK KUMAR JAIN),J