(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Civil Application is filed by the appellant insurance company seeking condonation of delay of 1100 days in filing the First Appeal.
The First Appeal is directed against the judgement and award of the Claims Tribunal dated 29.3.2008 passed in Motor Accident Claims Petition No.342/1997. The Claims Tribunal had awarded a sum of Rs.12,77,000/- to the heirs of deceased who expired in vehicular accident. It is the claim of the appellant insurance company that though in the body of the award, the Claims Tribunal apportioned only 50% negligence on the driver of the vehicle which the applicant insurance company had insured, in the final directions, there is no clarity regarding the liability of the insurance company being limited to that extent. We are prima facie of the view that such an issue is not germane. Accident occurred when two vehicles collided. Deceased was travelling in one of them. He was not driving the vehicle. Claims Tribunal held that driver of both the vehicles were negligent to the extent of 50% in causing the accident. In so far as the claimants are concerned, liability of the respondents would be joint and several.
Be that as it may, we are not at this stage concerned with the issues arising in First Appeal. Question is could such gross and inordinate delay of 1100 days be condoned.
For such purpose, we have heard learned counsel for the applicant at considerable length. We have also perused the explanation rendered in this application for condoning such delay. Averments made in the Civil Application for explaining such delay reads as under :
"3.
It is respectfully submitted that the award was delivered on 29.3.2008. The advocate appearing before the Tribunal applied for the certified copy on 3.5.2008. The certified copy was ready and delivered on 14.5.2008 and the appeal is filed on 15.7.2011. Thus there is delay of 1100 days in filing of the appeal, for reasons stated below :
The aforesaid award was pronounced on 29.3.2008.
The advocate for the appellant had submitted an application for the certified copy on 3.5.2008.
The certified copy was ready and delivered on 14.5.2008.
The advocate before the Tribunal sent the aforesaid copy of the Award to the Branch office at Surat along with an opinion to file an appeal on 30.5.2008.
As there were not sufficient papers available in the file, the Branch office called for written submission, if any, filed by the advocate, on 5.6.2008.
The advocate sent the copy of written submissions to the Branch Office on 25.6.2008.
The same was received in the Branch Office at Surat 30.6.2008 and the file was tagged with other file and could not be attended.
Recently while reviewing the other files pertaining to MACT claims, this file was found tagged with some other file. Therefore, it was immediately sent to the Regional Officer for further necessary action, in the second week of July, 2011.
The Regional Office decided to file an appeal and therefore, sent the papers to the lawyer appearing before this Hon'ble Court on 13.7.2011.
Looking to the urgency, the lawyer prepared the appeal and filed on 15.7.2011.
Thus there is delay of 1100 days in filing of the appeal due to circumstances narrated herein above and it is therefore, requested to condone the delay of 1100 days, in the interest of justice."
Other than above averments, there is no other explanation for delay. From the above noted portion of the application, it emerges that the certified copy of award which was pronounced on 29.3.2008 was available with the counsel for the insurance company on 14.5.2008. Counsel also forwarded the same to the insurance company on 30.5.2008. Insurance Company thereupon called for written submissions which were also sent by advocate on 25.6.2008. Appeal thereafter, came to be filed only on 15.7.2011 i.e. more than three yeas later. To explain such gap of three years all that is stated in the application is that when written statements were received by the Branch office of insurance company, Surat on 30.6.2008, such statements and files were tagged with other files and therefore, could not be attended.
We are of the opinion that such brief and rather cryptic explanation for delay of three years is simply not sufficient to condone delay. We had inquired with the counsel for the insurance company as to when and how the insurance company had deposited 50% of the amount on its understanding of the award. Counsel stated that such amount was deposited on or around 20.9.2008 after the claimants filed the execution proceedings before the Claims Tribunal. It thus becomes immediately clear that after the Claims Tribunal pronounced its award on 29.3.2008 and the insurance company not only received a certified copy thereof but also the submissions of the advocate, the insurance company also had to deposit a certain portion of the awarded amount under execution instituted by the claimants. Even beyond June 2008 therefore, the insurance company was well aware and presumably acutely conscious about the passing of the award and the implications of directions contained therein. As late as in September 2008, the insurance company having satisfied part of the award, it cannot take shelter of the assertion that after June 2008 file was tagged with wrong file and therefore, could not be traced. In the recent decision of the Apex Court in case of Office of the Chief Post Master General & ors. v. Living Media India Ltd. & Anr. by judgement dated 24.2.2012 in Civil Appeal No. 2474/2012 and connected matters while dealing with delay condonation application of the State seeking condonation of 427 days made following observations and dismissed the prayer :
"13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
We have also cursorily perused the award of the Claims Tribunal. Deceased had done the course of electrical wire-man. He was employed as meter-reader in Surat Electricity Co. He was drawing salary of nearly Rs.7000/- on the date of accident. He was aged 45 years. Tribunal passed award of Rs.12,77,000/- which cannot be stated to be out of bracket.
In the result, we are of the opinion that huge delay of 1100 days has not been sufficiently explained. This application is therefore, dismissed.
(Akil Kureshi,J.) (C.L.
Soni,J.) (raghu) Top