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1994 Supreme(J&K) 76
IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
M.L. Koul, J.
Oriental Insurance Co. Ltd. - Appellant
Versus
Zarifa & Ors. - Respondent
CMP No. 256/1993 And CIMA No. 48/1993
Decided On : 14 July, 1994
Advocate For Appellant: H.L. Chaudhery
Advocate For Respondent: D.S. Thakur
Advocate For Respondent: M.K. Bhardwaj
The expression 'sufficient cause' in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice in favor of parties, where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay.
Headnote:
LIMITATION ACT - SECTION 5 - MOTOR VEHICLES ACT, 1988 - SECTION 173 - CONDONATION OF DELAY - INSURANCE COMPANY - DELAY IN FILING APPEAL - SUFFICIENT CAUSE - BONA FIDES - SUBSTANTIAL JUSTICE - SOCIAL WELFARE LEGISLATION.
Fact of the Case:
The appellant/applicant, Oriental Insurance Company, sought condonation of delay in filing an appeal under Section 173 of the Motor Vehicles Act, 1988, against a judgment and award passed by the Motor Accidents Claims Tribunal. The delay was caused due to the insurance company's counsel not applying for a certified copy of the judgment for 24 days after it was passed, and subsequent inter-departmental consultations and legal opinions.
Finding of the Court:
The court found that the insurance company's counsel was present when the judgment was passed and knew the merits of the case and the important legal questions involved. The court also found that the insurance company did not provide any proof that the deceased was traveling as a trespasser or produce the insurance policy to assess its liability. The court held that the delay in filing the appeal was not due to sufficient cause and that the insurance company's explanation was vague and inconsistent.
Issues: 1. Whether the delay in filing the appeal was due to sufficient cause? 2. Whether the insurance company's explanation for the delay was bona fide? 3. Whether the delay should be condoned in the interest of substantial justice?
Ratio Decidendi: 1. The court held that the insurance company failed to show sufficient cause for the delay in filing the appeal. The court found that the insurance company's counsel did not apply for a certified copy of the judgment for 24 days after it was passed, and that the subsequent inter-departmental consultations and legal opinions did not constitute sufficient cause for the delay. 2. The court also found that the insurance company's explanation for the delay was not bona fide. The court noted that the insurance company did not provide any proof that the deceased was traveling as a trespasser or produce the insurance policy to assess its liability. The court also found that the insurance company did not take any steps to file the appeal within time, even after receiving the certified copy of the judgment two months before the limitation period expired. 3. The court held that the delay in filing the appeal should not be condoned in the interest of substantial justice. The court noted that the claimants had already suffered for a long time and that the insurance company's delay was willful.
Final Decision: The court rejected the application for condonation of delay and dismissed the appeal as time-barred.
2. The judgment and award was passed by the Tribunal in presence of the counsel for the parties on the aforesaid date and the counsel for the appellant/insurance company filed an application for the issue of certified copy of the judgment on 16-1-1993. The said copy was prepared on 20-1-1993 and delivered on 22-1-1993. In the application it has been urged that the copy of judgment was sent by post to the Insurance Company, which was received by it at Jammu on 29-1-1993. As the case was not within the financial competence of the applicant/appellant, therefore, after obtaining legal opinion at Jammu, the case was sent to the Regional Office at Chandigarh on 15-2-1993. The Regional Office after the receipt of the papers secured legal opinion and as the case involved some important legal question, it was returned to the Companys office at Jammu, for filing an appeal before this Court. The papers including the certified copy of the judgment were received by post on 31-3-1993 and during the first week of April, 3rd, 4th and 5th April, being holidays, the case was handed over to the counsel for preparation of the memo of appeal. The period of limitation for filing the appeal had expired on 23-3-1993 and thus the appeal was late by 15 days, which delay has been caused, as explained above.
3. Objections were filed and the application for condonation of delay was resisted on the ground that the application is hopelessly time barred, for the fact that the applicant failed to apply for the copy of the judgment and award well in time and it filed the said application after 24 days of the passing of the judgment and the counsel for the applicant/Insurance Company was present when the award was passed by the Tribunal. That the applicant/appellant has failed to explain the delay of every day and their contention is not bona fide. The applicant wants to frustrate the award passed in favour of the poor claimants and that the applicant being a State functionary has not acted fairly. That the delay cannot be condoned or excused, for the fact that no sufficient cause has been shown and therefore the Limitation Act has no application to the appeals under the Motor Vehicles Act.
4. The objections filed by Mr. D. S. Thakur, for respondents 1 to 8, have been adopted by Mr. M.K. Bhardwaj, appearing for the respondents 9 and 10, while arguing the case and he did not want to file any fresh objections to this application for condonation of delay.
5. Heard learned counsel for the parties, also went through the record and the judgment and award passed by the Tribunal.
6. At the outset it is suffice to say without any ambiguity that the award passed was announced by the Tribunal in presence of the learned counsel for the parties and Mr. Goja, learned counsel appearing for the applicant-Insurance Company before the Tribunal, was present when the award was passed against the applicant. Mr. Goja, who is a very Senior Counsel at Ramban, knew the merits of the case and he also knew as to what important questions of law were involved in the matter, for which an appeal was necessarily required to be preferred before the higher forum. But Mr. Goja slept over the matter and did not choose to file an application for issuance of a certified copy of the judgment, for 24 days. No proof is available on the file as to what circumstances restrained Mr. Goja to move such an application before the Tribunal for issuance of a copy of judgment and such an inordinate dely in not filing the application, has not been explained. Neither any affidavit in this regard has been filed by the applicant/ appellant, explaining therein as to why such an inordinate delay was
