MAC App./4/2011 of The Branch Manager, The New India Assurance Co. Ltd Vs Subash Chandra Paul and Ors on 18 November 2011

THE HIGH COURT OF SIl(KIM : GANGTOK

DATED : 18-11-2011

CORAM

HON'BLE THE ACTING CHIEF JUSTICEMR. JUSTICE S. P. WANGDI

MAC App. No.04 of 2011

The Branch Manager,The New India Assurance Co. Ltd,,Gangtok, Sikkim.I.. Appellant For Appellant Mr. Sudesh Joshi, Advocate.

q7

QBDEB

WanACJ.

Heard learned counsel for the appellant on question of condonation of delay.

It is an admitted position that there is a delayof 169 days in filing the appeal. The grounds set out forthe delay being condoned have been stated in paragraph3 of the application for condonation of delay, which maybe reproduced below:- "3. That the New India Assurance Co. Ltd., beinga Govt. of India Undertaking, the entire records hadbeen sent by the Petitioner to its Divisional Office atSiliguri after obtaining the certified copies of theudgement for necessary instruction who in turn senthe same to its Regional Office at Kolkata. TheRegional Office of the Petitioner in turn sent theentire file to its standing counsel for his expertopinion hence there was a delay of 169 days in filingthe instant appeal."

It has been noticed that almost every appealfiled on behalf of the Insurance Companies is invariablydelayed. The grounds seeking for the delay being ,condoned are always found to be stereo typed as theones set out in the present case. This clearly reflects thecasualness with which the Insurance Companies fileappeals and, the appeals itself appear to be filed as amatter of routine. The only object that could beachieved by doing so would be to deprive the victims of accidents from their legitimate compensation awarded tothem by the Motor Accident Claims Tribunal. This isclearly in gross conflict with the object of the Act whichis to provide for expeditious and speedy relief to thevictims of the motor vehicle accidents.

In Civil Appeal No. 8644 of 2011 arising out ofSLP(C) No. 29916 of 2010 in the matter of Shri SubrataMitra vs. Oriental Insurance Co. Ltd. and Anr., theHon'ble Supreme Court while dealing with the similarsituation, was pleased to note the finding of this Court inMACApp No.06 of 2009 where this Court had given thefollowing finding:-

"In so far as the question as to whether or not theaverments extracted herebefore contained in theapplication for condonation of delay would constitute"sufficient cause" that prevented the appellant frompreferring the appeal in time is another the matter.One of the grounds raised for the delay beingcondoned as set out in paragraph 3 is"dueto communication gap" between the Ld. Advocate ofthe appellant and the officials of the appellant whichresulted in the certified copy of the judgment andaward being made available only in the last week ofMay, 2009. As rightly pointed out by Mr. Joshi, Ld.Advocate on behalf of the respondent no.1, thepleadings are quite vague and devoid of materialparticulars. No effort has been made to state as tohow the communication gap occurred between theAdvocate of the appellant and the officials of theappellant. Being the principle contesting respondentin the case before the Tribunal, it is expected thatthe appellant would be diligent in following up withthe case by keeping regular contact with his counsel.The responsibility lies primarily with the party infollowing up his case and not be solely be dependentupon his counsel. Curiously enough, even thecounsel conducting the case has not come forwardwith any affidavit to support that there was indeed acommunication gap. Apart from this, the appellant a has concealed the fact that the application for thecertified copy of the award of the leamed Tribunalwas filed only after 42 days of the award which isevident from the entry made by the Head Copyist inthe certified copy supplied to the appellant that hasbeen filed with the memo of appeal.

17. In paragraphs 4 and 5 of the application forcondonation of delay, it has not been specified as towhen the impugned ].udgment had been forwardedto the Divisional Manager of the appellant. It hasalso not been specified as to when the DivisionalManager referred to the Regional Manager for hisconsideration and the details of the stages followedby the Regional Manager for seeking legal opinionand as to the advice that 'was said to have beengiven to the Branch Manager, Gangtok Branch,through the Divisional Manager stationed at Silliguri,West Bengal t:o prefer an appeal. Apart from thevague statements no material particulars have beenfurnished in the application with regard to themovement of the file let alone the filing of anyrecords of the appellant showing such deliberations.Keeping in view, the principles of law laid down inthe cases (supra) referred to by Mr. Joshi, I have nohesitation in holding that, apart from the avermentsset out as grounds for condoning the delay that arequite vague, the appellant has been grosslynegligent in taking steps in the matter. No bona fidecan be attached to the appellant in the facts andcircumstances obtaining in the case. Suppression ofmaterial fact of the application for certified copiesbeing filed in a lackadaisical manner makes the caseall the more worse for the appellant. I, therefore,hold that the appellant failed to show that he wasprevented by "sufficient cause" in preferring theappeal in time,"

5. The facts in the case where the above findingswere arrived at being identical as in the present case, Ihave no hesitation in holding the same view as regardsthe grounds given in paragraph 3 of the application forcondonation of delay extracted above which are no lessnebulous, vague and bereft of any material facts and,therefore, cannot be considered as ``sufficient cause" forthis Court to condone the delay.

From the order of this Court extracted above,the appellant is also found to have concealed the factthat the application for the certified copy of the award ofthe learned Tribunal was filed only after 42 days of theaward, a fact which was held against the appellant. Inthe present case, the situation is worse as theapplication for certified copy of the impugned order wasmade 142 days after it was passed as we din that thedate of the impugned award is 07-10-2010, while thedate of application for the certified copy is 26-02-2011as evident from t:he entry in the relevant column by theHead Copyist of the tribunal.

Considering the nature of the case involved inthe present appeal and the indifferent and causalapproach of the appellant in preferring it, it would beunjust to keep the matter pending and, therefore, rejectthe application for condonation of delay.

8. The appeal stands dismissed for the aforesaidreason with a cost of Rs,10,000/-(Rupees ten thousand)to be paid to the Bar Association at Namchi, SouthSikkim.

jks/ds

It is directed that the appellant-InsuranceCompany shall pay the compensation awarded by theLearned Motor Accident Claims Tribunal, South and WestDistricts, Sikkim at Namchi within a period of 15 daysfailing which it shall entail payment of additional interestof 2°/o. Needless to state that the amount which hasbeen paid to the respondent-claimant in terms of theOrder dated 08-09-2011 passed by this Court shall bededucted.

v..`Index : Y>s/NoInternet : Yes/No