New India Assurance Company Limited, Hyderabad Vs. G. Sarada Prasad and Others - Court Judgment

Excerpt:
limitation - criteria for condoning delay - section 5 of limitation act, 1963 - appeal of claimant allowed even though insurer's appeal was also pending - insurer's appeal dismissed later on basis of earlier decision - letters patent appeal preferred by insurer after long delay - held, delay cannot be condoned if party failed to prove sufficient cause for delay. - - the learned counsel for the respondents, however, submits that the law of limitation also gives rights to parties and if a person looses a right by not coming to the court within the prescribed period of time and does not show a sufficient cause for not coming to the court even if a right is found in his favour, it is defeated.orderbilal nazki, j. 1. a claim petition was decided by the tribunal granting compensation of rs. 400 lakhs to the claimants. this was challenged by way of two appeals. one appeal had been filed by the claimants seeking enhancement of the compensation and the other appeal had been filed by the insurance company challenging the award. the appeal filed by the insurance company was numbered as cma no.1017 of 1991 and the claimants appeal was numbered as cma no. 1702 of 1991. it appears that the appeal filed by the claimants came to the decided first bythe learned single judge of this court and it was decided on 3rd december, 1997. the learned single judge only increased the compensation by an amount of rs.30,000/-. rs.15,000/- were awarded towards loss of the estate and rs.15,000/- for the loss of consortium. the appeal was decided after hearing the learned counsel for the insurance company. the insurance company did not dispute the liability of the insurance company even when this appeal was heard and decided. it did not also inform the court that the insurance company had also filed an appeal challenging the award on the ground that their liability was limited to rs.1-50 lakhs. the court recorded; 'the respondents who are the owner and insurance company did not file any appeal questioning the said award.' although this case was decided in the year 1997 no appeal was preferred against it. it appears that thereafter the appeal filed by the insurance company against the award came to be heard and decided on 20th march, 2000. the learned single judge dismissed the appeal mainly on the ground that, since the earlier appeal had been decided which had been filed by the claimants against the award by another bench of the court, therefore he could not interfere with the award. 2. there is a delay of 1047 days in filing the first letters patent appeal and there is delay of 139 days in filing the second letters patent appeal. the grounds taken by the insurance company in the application seeking condonation of delay are that, whereas the appeal filed by the claimant was entrusted to one counsel and the case challenging the award by the insurance company was entrusted to another counsel therefore lack of coordination between the two counsels resulted in disposal of the appeals at two different stages. this cannot be taken a ground for seeking condonation of delay. the first appeal was decided indecember, 1997. it was decided in presence of the learned counsel for the insurance company, therefore it can be presumed that they were aware of the orders passed by the learned single judge in the first appeal. even after knowing that the appeal of the claimants had been allowed and compensation had been enhanced, no steps were taken for almost three years to file an appeal. it is only after the second appeal was decided by the learned single judge that the insurance company came out of the slumber and tried to take steps to file the letters patent appeal. even in this appeal there is delay of 139 days. further grounds given are that, since the two advocates were pursuing two different matters arising out of the same award, paralle files were being run and relevant papers could not be traced and ultimately, according to them, it was on 27th june, 2000 that the approval to file an appeal was obtained. even after this date the appeal was filed after almost five months. 3. the learned counsel for the appellants has drawn the attention of the court to a judgment of the supreme court in state of haryana v. chandra mani, 1996 (2) uj (sc) 105. the supreme court in this case laid down that a liberal approach should be adopted in cases of condonation of delays. in para 11 the court stated: '11. it is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this court be it by private party or the state are barred by limitation and this court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. it is equally common knowledge that litigants including the state are accorded the same treatment and the law is administered in an even-handedmanner, when the state is an application, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making file pushing and passing of the buck ethos, delay on the part of the state is less difficult to understand though more difficult to approve, but the state represents collective cause of the community. it is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise, is a routine. considerable delay of procedural red tape in the process of their making decisions is a common feature. therefore, certain amount of latitude is not impermissible. if the appeals brought by the state are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. the expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. the factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice oriented process. the court should decide the matters on merits unless the case is hopelessly without merit. no separate standards to determine the cause laid by the state vis-a-vis private litigant could be laid to prove strict standards of sufficient- cause. the government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the course or whether cases require adjustment and should authorise the officers take a decisionor give appropriate permission for settlement. in the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. equally, the state cannot be put on the same footing an individual. the individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while state is an impersonal machinery working through its officers or servants. considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay.'4. however, the court added in para 12 that 'on the facts and circumstances of the case we are of the opinion that it is a fit case for condoning the delay.' the supreme court in this judgment however stated, as is quoted above, that the courts should decide the matters on merits unless the case is hopelessly without merit. this observation of the supreme court should be taken to have been made with reference to the case before it. the interpretation sought to be placed on this observation by the learned counsel for the petitioner if accepted would render law of limitation useless. he wants this court to understand that the supreme court has held that, wherever there is a case on merits the law of limitation shall not apply. this obviously cannot be the intention of the judgment of supreme court. the learned counsel for the respondents, however, submits that the law of limitation also gives rights to parties and if a person looses a right by not coming to the court within the prescribed period of time and does not show a sufficient cause for not coming to the court even if a right is found in his favour, it is defeated. 5. without going into the plea raised at the bar, we believe that this court is bound by the law laid down by the supreme court in a later judgment reported in p.k. ramachandran v. state of kerala, : 1997ecr785(sc) , wherein the supreme court held: 'law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the courts have no power to extend the period of limitation on equitable grounds. the discretion exercised by the high court was, thus, neither proper nor judicious. the order condoning the delay cannot be sustained. this appeal, therefore, succeeds and the impugned order is set aside.'6. since by latest judgment of the supreme court it is held that even if the law of limitation affects the party harshly but it has to be applied with all its rigour when sufficient cause is not found and in the present case as has been pointed out hereinabove sufficient cause has not been shown for condonation of delay of three years when the appellants were in know of the fact that the appeal by the claimant had been decided from the day when it was decided as they were represented in the said appeal, for these reasons the applications are dismissed. the awarded amount be paid within one month.

Judgment:
ORDER

Bilal Nazki, J.

1. A claim petition was decided by the Tribunal granting compensation of Rs. 400 lakhs to the claimants. This was challenged by way of two appeals. One appeal had been filed by the claimants seeking enhancement of the compensation and the other appeal had been filed by the Insurance Company challenging the award. The appeal filed by the Insurance company was numbered as CMA No.1017 of 1991 and the claimants appeal was numbered as CMA No. 1702 of 1991. It appears that the appeal filed by the claimants came to the decided first bythe learned single Judge of this Court and it was decided on 3rd December, 1997. The learned single Judge only increased the compensation by an amount of Rs.30,000/-. Rs.15,000/- were awarded towards loss of the estate and Rs.15,000/- for the loss of consortium. The appeal was decided after hearing the learned Counsel for the Insurance Company. The Insurance Company did not dispute the liability of the Insurance Company even when this appeal was heard and decided. It did not also inform the Court that the Insurance company had also filed an appeal challenging the award on the ground that their liability was limited to Rs.1-50 lakhs. The Court recorded; 'The respondents who are the owner and Insurance company did not file any appeal questioning the said award.' Although this case was decided in the year 1997 no appeal was preferred against it. It appears that thereafter the appeal filed by the Insurance company against the award came to be heard and decided on 20th March, 2000. The learned single Judge dismissed the appeal mainly on the ground that, since the earlier appeal had been decided which had been filed by the claimants against the award by another Bench of the Court, therefore he could not interfere with the award.

2. There is a delay of 1047 days in filing the first letters patent appeal and there is delay of 139 days in filing the second letters patent appeal. The grounds taken by the Insurance company in the application seeking condonation of delay are that, whereas the appeal filed by the claimant was entrusted to one Counsel and the case challenging the award by the Insurance Company was entrusted to another Counsel therefore lack of coordination between the two Counsels resulted in disposal of the appeals at two different stages. This cannot be taken a ground for seeking condonation of delay. The first appeal was decided inDecember, 1997. It was decided in presence of the learned Counsel for the Insurance Company, therefore it can be presumed that they were aware of the orders passed by the learned single Judge in the first appeal. Even after knowing that the appeal of the claimants had been allowed and compensation had been enhanced, no steps were taken for almost three years to file an appeal. It is only after the second appeal was decided by the learned single Judge that the Insurance Company came out of the slumber and tried to take steps to file the letters patent appeal. Even in this appeal there is delay of 139 days. Further grounds given are that, since the two Advocates were pursuing two different matters arising out of the same award, paralle files were being run and relevant papers could not be traced and ultimately, according to them, it was on 27th June, 2000 that the approval to file an appeal was obtained. Even after this date the appeal was filed after almost five months.

3. The learned Counsel for the appellants has drawn the attention of the Court to a judgment of the Supreme Court in State of Haryana v. Chandra Mani, 1996 (2) UJ (SC) 105. The Supreme Court in this case laid down that a liberal approach should be adopted in cases of condonation of delays. In Para 11 the Court stated:

'11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court be it by private party or the State are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handedmanner, when the State is an application, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making file pushing and passing of the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise, is a routine. Considerable delay of procedural red tape in the process of their making decisions is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient- cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the course or whether cases require adjustment and should authorise the officers take a decisionor give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay.'

4. However, the Court added in para 12 that 'On the facts and circumstances of the case we are of the opinion that it is a fit case for condoning the delay.' the Supreme Court in this judgment however stated, as is quoted above, that the Courts should decide the matters on merits unless the case is hopelessly without merit. This observation of the Supreme Court should be taken to have been made with reference to the case before it. The interpretation sought to be placed on this observation by the learned Counsel for the petitioner if accepted would render law of limitation useless. He wants this Court to understand that the Supreme Court has held that, wherever there is a case on merits the law of limitation shall not apply. This obviously cannot be the intention of the judgment of Supreme Court. The learned Counsel for the respondents, however, submits that the law of limitation also gives rights to parties and if a person looses a right by not coming to the Court within the prescribed period of time and does not show a sufficient cause for not coming to the Court even if a right is found in his favour, it is defeated.

5. Without going into the plea raised at the Bar, we believe that this Court is bound by the law laid down by the Supreme Court in a later judgment reported in P.K. Ramachandran v. State of Kerala, : 1997ECR785(SC) , wherein the Supreme Court held:

'Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside.'

6. Since by latest judgment of the Supreme Court it is held that even if the law of limitation affects the party harshly but it has to be applied with all its rigour when sufficient cause is not found and in the present case as has been pointed out hereinabove sufficient cause has not been shown for condonation of delay of three years when the appellants were in know of the fact that the appeal by the claimant had been decided from the day when it was decided as they were represented in the said appeal, for these reasons the applications are dismissed. The awarded amount be paid within one month.