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2014 Supreme(Sikk) 1
IN THE HIGH COURT OF SIKKIM : GANGTOK
S.P. WANGDI, J
The Branch Manager, National Insurance Company Ltd., Gangtok Branch, Gangtok, East Sikkim - Applicant/Insurer
Versus
Smt. Rina Subba (Lama) & Ors. - Respondents/Claimants
M.A.C. Appeal No. 01 of 2014
Decided on: 30-01-2014
Advocate Appeared
FOR APPELLANT :MR. MANISH KUMAR JAIN, ADVOCATE
The main legal point established in the judgment is the requirement to show sufficient cause for delay in filing an appeal under the Motor Vehicles Act, 1988, as well as the imperative consideration of contributory negligence in motor accident cases.
Headnote:
Motor Vehicles Act - Compensation - Section 166, Section 140, Section 173 - The court discussed the provisions of Section 166, Section 140, and Section 173 of the Motor Vehicles Act, 1988. The court emphasized the imperativeness to consider the aspect of contributory negligence by the Claims Tribunal, as highlighted in the case Minu B. Mehta vs. Balkrishna Ramchandra Nayan & Another – AIR 1977 SC 1248. The court also examined the requirement for condonation of delay under the second proviso to Section 173 and concluded that the appellant failed to show sufficient cause for the delay, leading to the dismissal of the appeal.
Fact of the Case:
The appeal was filed against the judgment of the Motor Accident Claims Tribunal, seeking compensation for the death of an individual in a motor vehicle accident. The appellant also filed an application for condonation of delay in filing the appeal.
Finding of the Court:
The court rejected the application for condonation of delay and dismissed the appeal, citing the appellant's failure to show sufficient cause for the delay.
Issues: The main issue was the delay in filing the appeal and the application for condonation of delay.
Ratio Decidendi: The court held that the appellant failed to show sufficient cause for the delay, leading to the dismissal of the appeal.
Final Decision: The MAC Appeal was dismissed, and no order as to costs was made.
Wangdi,J.
This Appeal is directed against the impugned judgment of the Motor Accident Claims Tribunal, East and North Sikkim at Gangtok dated 31.10.2012 in M.A.C.T. Case No. 30 of 2011. The claim had been preferred by the respondents under Section 166 of the Motor Vehicles Act, 1988 seeking compensation from the appellant on account of the death of Arun Kumar Lama, the husband of the first respondent and father of the second respondent in a motor vehicle accident that took place on 17.10.2010.
2. By the impugned judgment, the Claims Tribunal had awarded compensation of Rs.23,89,820/-(Rupees Twenty three lakhs eighty nine thousand eight hundred and twenty) only with interest @ 10% per annum from the date of filing of the claim petition which was 08.11.2011 until its full and final payment with necessary deduction of interim payment of Rs. 50,000/-granted vide order dated 22.05.2012 under Section 140 of the Motor Vehicles Act, 1988.
3. The Appeal is accompanied by an application under consideration which is for condonation of delay of 363 days in filing the appeal on the ground that it was caused due to the time taken in the movement of the file and in seeking legal opinion.
4. Mr. Manish Kumar Jain, learned Counsel appearing for the appellant, submits that the learned Claims Tribunal had committed a serious infraction of law, in as much as, it had failed to consider the question of contributory negligence on the part of the deceased in causing the accident although he fairly submits that no issue had been framed on this and had not pressed the point during the proceedings before the Tribunal.
5. Mr. Jain, has relied upon para 21 of Minu B. Mehta vs. Balkrishna Ramchandra Nayan & Another – AIR 1977 SC 1248 to emphasize the imperativeness to consider the aspect of contributory negligence by the Claims Tribunal.
6. Before we embark upon considering the merits of the grounds raised in the appeal, the appellant is required to cross over the main hurdle of delay in approaching this Court. The circumstance in which delay in filing appeals under the Motor Vehicles Act, 1988 is provided in the second proviso to Section 173 of the Act. We may reproduce the proviso for convenience:-
“173. Appeals-(1)…………………………………………….. ………………………………
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
…………………………………………………………………………….”
From the above, it is manifest that an appeal filed after the expiry of period of 90 days may be entertained by the High Court only if it is satisfied that the appellant was “prevented by sufficient cause” from preferring it within the prescribed period. It is thus obvious that discretion in condoning delay may be exercised by the High Court only if the appellant is successful in showing that he was prevented by sufficient cause from preferring the appeal in time. Keeping in view this principle, let us examine as to whether in the present case the appellant has been successful in satisfying the aforesaid requirement. For convenience we may reproduce the entire pleadings contained in the application for condonation of delay which reads as under :
“ …………………………………………………………………………..
1. That this day, the petitioner has filed an Appeal challenging the judgment and Award passed by the Learned Member, Motor Accident Claim Tribunal, East and North at Gangtok, in MACT case No. 30 of 2011.
2. That the judgment in the aforesaid case was pronounced by the Ld. Claim Tribunal on 31/10/2012 as such the appeal challenging the said judgment ought to have been filed by the petitioner appellant on or before the 30th day of January, 2013. The appeal being filed today is delayed by 363 days as on 28/1/2014.
3. That the application for certified copies of the judgment was made on 8/05/2013 and the same was obtained on 18/05/2013. Thereafter, the entire file was sent to Divisional Of
