Delay in filing an appeal can be condoned under Section 5 of the Limitation Act if the prior proceedings were conducted bona fide in a court lacking jurisdiction, with specific periods excluded under Section 14.

27.06.2024 Heard Shri B.R. Das, learned counsel for the applicant. Also heard Ms. R.D. GAHC010005192023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/399/2023 in MACApp./300/2023 PATALI CHUTIYA W/O LT. GHANASYAM CHUTIA, VILL.- JALBHARI, P.O.- JALBHARI, P.S.- DHAKUWA KHANA, DIST.- LAKHIMPUR, ASSAM. VERSUS ORIENTAL INSRANCE COM. LTD. AND 2 ORS. REP. BY REGIONAL MANAGER, GAUHATI, GS ROAD, CHRISTAN BASTI ASSAM.

Advocate for the Petitioner : B R DAS Advocate for the Respondent : MR M CHETIA (r-3) BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER 27.06.2024 Heard Shri B.R. Das, learned counsel for the applicant. Also heard Ms. R.D. Mozumdar, learned counsel for the contesting respondent no.1 who has also filed objection.

The names of the respondent nos. 2 & 3 were struck off vide an order dated 03.01.2024. The instant application is filed under Section 5 of the Limitation Act praying for condonation of delay of 1273 days in preferring the appeal against the judgment and award dated 23.12.2015 passed by the learned Member of Motor Accident Claim Tribunal at Lakhimpur in MACT Case No. 22/2013. It is submitted by the learned counsel for the applicant that initially the appeal was filed before the Itanagar Bench of this Court on 22.05.2018. However, the said appeal which was registered as MAC Appeal No. 9/2018 was dismissed on 19.03.2021 as not maintainable. It was observed that the jurisdiction would be in the State of Assam. Thereafter on 06.01.2023 the connected appeal has been preferred and in the said process there is a delay of 1273 days. It is contended that the appeal before the Itanagar Bench of this Court had consumed 1018 days and thereafter, some more period was taken for receipt of the certified copy. The learned counsel further submits that the compensation awarded is absolutely inadequate wherein the aspect of the employment of the deceased and the remuneration have been overlooked.

Per contra, Ms. R.D. Mozumdar, the learned counsel for the Insurance Company, by referring to the objection has submitted that the calculation made by the Registry is incorrect and actually the delay is much more. She has also submitted that the documents annexed to this application in support of the prayer for delay condonation are apparently frivolous.

The rival contentions have been duly considered.

In the instant case, it is not in dispute that the appeal against the impugned judgment and award of the learned MACT, Lakhimpur was initially filed in the Itanagar Bench of this Court on the assumption and ground that the Insurance Company had a Divisional Office at Itanagar. However, the Itanagar Bench of this Court having held the appeal to be not maintainable due to lack of territorial jurisdiction vide order dated 19.03.2021, the present appeal has been filed in this Court. Section 14 of the Limitation Act, 1963 deals with exclusion of time of proceeding bona fide in Court without jurisdiction. It is seen that the period consumed in the appeal before the Itanagar Bench of this Court is 1018 days. In the opinion of this Court, the aforesaid period would have to be excluded by application of the provisions of Section 14 of the Limitation Act as there was an order indicating lack of jurisdiction.

The contention advanced by Ms. Mozumdar, regarding the error in calculation of delay has also been considered and it is found that the Registry while calculating the delay had also taken into consideration the COVID period in which the Hon’ble Supreme Court has laid down that limitation would not run. Ultimately, the delay would be of 255 days which would include the period for obtaining certified copy.

Considering the aforesaid facts and circumstances and also the aspect that the present application has been filed for enhancement of the compensation in a death case, the delay in filing the present appeal is condoned.

At this stage, Ms. Mozumdar submits that while considering the appea