Smt. Mamta Devi and anr. Vs. Udaiveer Singh - Court Judgment

Excerpt:
workmen compensation act, 1923 - section 30--limitation act, 1963--section 5--delay in filing appeal--petitioner's contention that advocate did not inform her--no sufficient cause to condone delay--no reliable evidence to prove that the deceased was employee of respondent no. 4--findings of trial court are not perverse--no substantial question of law involved--appeal dismissed being time barred.;appeal dismissed - - 5. the appellants have thus failed to satisfy this court that they were prevented by any sufficient cause from filing the present appeal within limitation.n.p. gupta, j.1. heard learned counsel for the parties.2. by the impugned order, the learned commissioner has dismissed the claim petition mainly on the ground that the victim rajnish is not proved to be in the employment of respondent no. 4 kansingh. the learned commissioner has also considered the fact that the tractor and trolley in which the deceased was travelling belonged to father and uncle of the deceased being respondent nos. 1 and 2 and the learned commissioner also considered the fact in this background that the story of the defendant no. 4 about the deceased having boarded the tractor just for spree is mere probable and natural. the learned commissioner also relied upon the fact that except the bare word of mouth, there is no other tangible corroborative evidence to establish the deceased to be the employee of kansingh.3. this finding recorded by the learned commissioner is a pure finding of fact and does not involve any substantial question of law.4. it is in this background that i have to consider the application filed by the appellant under section 5 of the limitation act. the impugned award was made on 29.3.1997 and the application for certified copy was moved on 13.1.1998 and the certified copy was received on 14.1.1998, while the present appeal was filed on 21.1.1998. the reason given in the application is that the appellant had engaged the advocate sh. kanhaiya lal sharma who did not inform regarding the decision of the case and that he assured that when the case will be decided, he will inform. therefore, the appellant was under the impression that her counsel will intimate. with this story, it has been contended that she came to court on 12.1.1998 and contacted the counsel and learnt that claim has rejected on 29.3.1997. suffice it to say that on perusal of the record, it transpires that sh. kanhaiya lal sharma was the counsel initially engaged when the claim was filed but as a matter of fact, the case was being conducted by sh. shailandra vyas inasmuch as when the statement of kan singh dw-1 was recorded, he was not cross-examined and, therefore, on 30.10.1996, an application was filed on behalf of the claimants to the effect that the claimant's advocate sh. shailandra vyas was busy with making preparation for m.p. judicial examination and had gone to indore and, therefore, witnesses could not be cross-examined. this application was supported by an affidavit of sh. shailandra vyas himself and the learned commissioner vide order dated 9.9.1996 allowed the application on rs. 70/- as costs and re-called the witness kansingh who was cross-examined on 26.9.1996. thus, the story propounded by the petitioner cannot be accepted on the face value. the petitioner has also not disclosed in the affidavit as to when her counsel assured that she will be intimated as and when case is decided, so as to render the appellant free even not to take care of the litigation. for the sake of argument, even if it were to be assumed that any such assurance was given and such assurance has not been complied with, the claimants may have their remedies out against the counsel before appropriate forum but then no sufficient cause is made out for condonation of delay more particularly in view of the fact about lack of merit in the appeal as observed above.5. the appellants have thus failed to satisfy this court that they were prevented by any sufficient cause from filing the present appeal within limitation. the application under section 5 of the limitation act is, therefore, dismissed and resultantly, the appeal is also dismissed as barred by time. the record of the learned trial court be returned forthwith.