National Insurance Co. Ltd. Vs. Mohd. Akbar Thoker and ors. - Court Judgment

Y.P. Nargotra, J.

1. The deceased Abdul Rashid Thoker S/o Abdul Rehman who was a Government employee working in Animal Husbandry Department drawing a salary of Rs. 3536 and was likely to be promoted as Stock Assistant became the victim of the accident caused at Bagu Budgam on 8th of February 1999 by rash and negligent act of Tipper bearing registration No. 1382/JK04 by the driver Abdul Rashid Baba. The legal heirs of the deceased who are respondents here claimed a compensation from the owners and driver of the vehicle alongwith the insurer the appellant company. The MACT Budgam awarded compensation by his judgment and award dated 28th of May 2001 of Rs. 5,40,000 minus interim relief with 9% interest per annum from the date of institution till its final realisation and directed the appellant insurer to satisfy the claim. The appellant insurer through this application is seeking condonation of delay of 88 days caused in filling the appeal. In the application the petitioner has pleaded that Mr. Nisar Ahmad Dandroo Advocate informed the Divisional office of the appellant company at Srinagar about the passing of the judgment by his letter dated 2nd of July 2001 giving his opinion that in view of the law laid down by the Supreme Court in the case reported in AIR 2000 SC 235 the appellant should satisfy the award. Since the case was forwarded at final office at Chandigarh , therefore the Divisional office forwarded the complete file alongwith the opinion of the Advocate to the Regional office at Chandigarh for taking the decision in the matter. The Regional office at Chandigarh vide fax dated 20th of August 2001 directed the Divisional office to obtain certain information. Consequently the matter was taken up with the dealing Advocate. The dealing Advocate in turn informed the Divisional office by his letter dated 6th of September 2001 that the owner and driver caused appearance in the matter and then absented. They had been set exparte and had not filed any written statement. This information was transmitted to the Regional office at Chandigarh. The Regional office by fax dated 13th of September 2001 sought further information which was again furnished. So the decision whether to go in appeal or not was to be taken by the Regional Office and Regional office came to know that in an another case entitled New India Assurance Company Ltd. v. Asha Ram and Ors., it was held by their Lordships in the Supreme Court that law laid down in AIR 2000 SC 235 require re-consideration by a Larger Bench and the matter was placed before the Hon'ble Chief Justice of India for constituting a Larger Bench. The Apex Court held in the said judgment that as per the New Motor Vehicles Act the carriage of passengers under the goods vehicles is against the mandate of the statute as envisaged by Section 149(2) of Motor Vehicles Act and no liability can be passed to the Insurance company on being informed about the passing of the above said judgment the Regional office decided to go in appeal and accordingly directed the Divisional office at Srinagar. Mr. Kawoosa Advocate was engaged after the receipt of the files back at Srinagar Divisional office on 21st of October 2001. After preparing the appeal the application for condonation of delay was also filed with the appeal. According to the Ld. counsel for the appellant/petitioner the delay caused in filing the appeal has been due to aforesaid peculiar circumstances of the case and, therefore, constitute a sufficient cause warranting condonation of delay. On the other hand, the contention of LC for the respondents is that delay should not be condoned because the appellant/petitioner has not acted promptly and with due diligence and the matter has been delayed unnecessarily. Even if the Hon'ble Supreme Court found that decision rendered in the case reported in AIR 2000 SC 235 required re consideration, yet unless the judgment rendered in that case was changed it continue to hold the field.

2. The vital question arising for determination is, can the explanation advanced by the petitioner company be taken as to constitute a 'sufficient' cause.

In (1998) SCC 123 their Lordships have held:

'The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damages caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

Condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of explanation is the only criterion. Sometimes delay of the short strange may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the courts is always deliberate. The words 'sufficient cause' under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.'

3. In view of the above quoted observation the words sufficient cause used in Section 5 of the Limitation Act should receive a liberal construction and if the explanation does not smack of mala fide or is not put forth as part of dilatory strategy, the court must show utmost consideration. In the present case there cannot be any question of mala fide. Though the required promptness was not shown yet it is not found that delay was caused only to delay the payment of amount of award as by such delay the appellant company was not to gain anything. Therefore the explanation rendered by the petitioner deserves utmost consideration, but that by itself is not sufficient. The explanation has to pass further test of reasonability to come within the expression 'sufficient cause'. The petitioner initially was not inclined to go in for appeal in view of the law laid down by the Apex Court judgment rendered in AIR 2000 SC 235 but it changed its mind on coming to know that in a case entitled New India Assurance Co. v. Asha Ram and Ors. the Apex Court has observed that law laid down is the said judgment required reconsideration. Who brought this facts into the notice of the regional office, when this fact was revealed, is not disclosed. This aspect assumes importance because the basis of the decision to go in for appeal is based solely on the passing of the judgment in Asha Ram's case. In order to show that the appellant/petitioner acted in reasonable despatch, it was necessary to show that immediately after coming to know about the passing of that judgment the petitioner took the decision to file an appeal without wasting any time. The absence of such disclosure in the explanation renders its unsatisfactory. Even otherwise the decision of the question whether to file an appeal has to be made before the expiry of the period prescribed for filing the appeal. It cannot be left to such time until some law is traced in support. As per the own showing of the petitioner the opinion of the Advocate and complete file was forwarded to Regional office at Chandigarh which stood received there before 20.8.2001 so the appeal could have been prepared and filed within days and if some more information was needed it could be procured through special messenger but it was not done and instead letters was sent through fax to Divisional office did not approach the counsel personally for obtaining the information sought for by the regional office instead of waiting till 6.9.2001 when they received the letter from the concerned Advocate, the explanation is wanting. In these circumstances the inference can be drawn that delay has not been reasonably and satisfactorily explained by the petitioner.

4. For the reasons given above the cause shown for delay in filling appeal is not found to be sufficient warranting condonation thereof. The applications of the petitioner is therefore dismissed and consequently appeal is also dismissed as the time barred alongwith the CMPs, after its registration.