Jammu & Kashmir High Court - Srinagar Bench
National Insurance Co. Ltd. vs . Mst. Mukhti And Anr. on 3 May, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Serial No. 45
Supplementary List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
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COD No. 253/2017 Date of order: 03.05.2019 National Insurance Co. Ltd. Vs. Mst. Mukhti and anr. Coram:
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Appearance:
For the Applicant (s) : Mr. Nazir Ahmad Beigh, Adv.. For the Non-applicant (s) : Mr. Javid Kawoosa, Adv
i) Whether to be reported in Press/Media: Yes/No
ii) Whether to be reported in Digest/Journal: Yes/No
1. By the medium of this application, the applicant seeks condonation of 262 days delay in filing the accompanying review petition.
2. Facts giving rise to the filing of the instant condonation of delay application are that:
i) That the above captioned was filed by the appellant insurance company ltd wherein the Hon'ble court was pleased to put the applicant to notice. The applicant after receiving the notice without losing time engaged a lawyer his counsel who while submitting the power of attorney in the Registry of this Hon'ble Court came to know that the above captioned appeal had already been decided against him on 2-12-2016.
ii) That the present applicant (respondent 2) without losing time applied for the certified copy of the judgment on 07-07-2017, which was delivered to him on 12-07-2017. It was found by
1|Page the present applicant (respondent 2) that he had been set exparte and the important factual aspect of the matter with respect to the liability of the insurance company to pay the compensation has been suppressed and kept from this court by the insurance company at the time of the disposal of the appeal.
iii) That the present applicant thereafter sought the legal advice in the matter which took him several days in view of the valid opinion of the counsel/lawyer. Although the present applicant is poor and can hardly afford any litigation before this court engaged his counsel to represent him before this Hon'ble court and bring the actual factual aspect of the matter as also the law applicable to the case, to the notice of the court which otherwise due to absence of the present applicant and misstatement of the insurance company has gone unnoticed and, therefore, the delay caused in filing the accompanying review petition is neither deliberate nor willful but is due to absence of knowledge regarding the judgment sought to be reviewed and also the procedure in view of the fact that it till several days to seeks the legal advice of the lawyers which was valid on the point in issue.
3. In review petition, grounds for review is reproduced as:
i) That the present petitioner was set ex parte and the owner of the vehicle was not impleaded as party to the proceedings before the learned Tribunal or before the High Court. The present petitioner licentiate driver is holding a valid driving license to drive the offending vehicle, which is Tata 407 Mini Bus bearing No. JK01F-4366 and this was established before the learned Tribunal from the licensing authority by itself. AS per report the present petitioner holds the driving license
2|Page 58155-K issued on 12.12.1991 and was valid up to 11.12.1994 and thereafter was renewed from time to time especially up to
4.4.2007, hence the present petitioner was authorized to ply the offending vehicle on the fateful day.
ii) That the above captioned appeal was filed by Appellant-
Insurance Company before this Court and the present petitioner was put to notice. The present petitioner received notice and authorized a lawyer to represent him in the proceedings and, when the lawyer went to registry to submit power of attorney, he came to know that the matter had already been decided on 12.12.2016 as a result of which the present petitioner was totally unrepresented and was set exparte.
iii) That the appellant Insurance Company filed the above captioned appeal based on untrue and baseless grounds trying to give a false impression to this court the driver of the vehicle was not authorized to ply the offending vehicle. While as a matter of fact, the present petitioner was having a valid license and the vehicle involved in the accident was duly insured covering the accident as well. It was in t his factual background that the learned Motor Accidents Claims Tribunal had made the appellant Insurance Company responsible to pay the compensation to the legal heirs of the deceased. All these facts although reflected in the award of the learned Motor Accidents Claims Tribunal have gone unnoticed by the Court due to absence of the present petitioner and the misstatement of the insurance company which constitutes an error apparent son the face of record as the stand taken by the Insurance Company indicated in the judgment of this Court goes in clash with the evidence reflected in the award of the learned
3|Page Tribunal and the finding returned by the learned Tribunal to issue NO. 2 struck by the learned Tribunal in this behalf.
iv) That assuming though not admitting that the present petitioner was holding license to ply one type of vehicle and was not authorized to ply the offending vehicle yet the Three Judge Bench of the Hon'ble Supreme Court held in a famous case pertaining the said appellant Insurance Company viz National Insurance Company Versus Swarn Singh reported in AIR 2004 SC 1543 that he insurance company is liable to pay the compensation to the victim or the legal heirs of the deceased as the case may be, in case the driver was grated license for one type of vehicle but was driving another type of vehicle, as in such circumstances the driver had to be taken as an licentiate driver and this judgment mentioned above having been delivered against the appellant company by the Hon'ble Supreme Court in another matter has been suppressed and kept back from this Court at the time of disposal of the above captioned appeal.
v) That the present petitioner being a licentiate driver and therefore protected by the award of the learned tribunal on the basis of the evidence is otherwise not in a position to pay the awarded amount of compensation. In view of his being a poverty stricken person and present petitioner having unfledged family to support therefore this review petition needs to be considered by this Court on the above grounds.
4. Objections have been filed by the National Insurance Company Limited wherein it is stated as:
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i) That the judgment has been passed on 02.12.2016 and the review petition has been filed in 2017 i.e. after lapse of 01 year. The applicant despite services in the appeal did not appear on the date when the matter was heard. It is submitted that he ground pleaded by the applicant is that after receiving notice in the appeal he engaged his counsel and who while submitting his power of attorney in the Registry came to know that the appeal has been decided against her on 02.12.2016.
It is submitted that the appeal was admitted to hearing on
05..2015 and the notices were issued. Thus, the question of receiving the notices after the date of the judgment i.e. 02.12.2016 does not arise. Thus, the applicant has pleaded false ground for seeking condonation of the delay. The applicant has also pleaded that she applied for certified copy of the judgment on 07.07.2017 which was delivered to her on 12.07.2017, thereafter the applicant has again slept over the matter and filed the present review petition in the month of November 2017.
ii) That the averments in the application are vague and incorrect.
The applicant infact did not want to contest the mater and therefore did not appear in the appeal. It appears that the applicant after receiving notice in the recovery petition, she changed her mind and decided to file the review petition and has made vague allegations. Since the applicant did not take any steps in filing of the review petition before expiration of the limited period, therefore it is not permissible for her to seek condonation of delay in filing the same at this stage. Thus, the delay is willful as well as deliberate. The applicant has not shown any sufficient cause for condoning the delay of about 01 year in filing the review petition.
5|Page
5. It may be pertinent to refer herein the relevant observations regarding driving license made by MACT, Srinagar in the award passed by it as:
.......The verification report however sought by the tribunal from the licensing authority Srinagar has revealed that the driving license NO. 58155-K is in the name of Tariq Ahamd S/o Ghulam Mohammad and who is authorized to ply LMV/MGV/HGV type of vehicle. The company has not produced any witness from the RTO office to establish t his fact that the respondent No. 1 is not the insured of the vehicle, and someone else other is insured of the said offending vehicle, except the sole witness as discussed above. While seeing the photocopy of the driving license 58155-K it also reveals that the said license is issued on 12.12.1991 and is valid up to 11.12.1994 and then renewed up to 25.06.2005 to 04.04.2008 vide renewal No. 120101/MVDK, which also covers the date of accident which is on 21.12.2007. Further the driver is authorized to ply the offending vehicle which is Tata Mini Bus the passenger vehicle.
...in view of the forgoing reasons, it is proved that he driver was having the valid driving license and the vehicle was under the proper insurance cover on the date of accident and thereby the contract of indemnity was very much in existence on the said material date of accident thus binding the insurance company (National Ins. Co.) the insurer to indemnify the insured the respondent No. who is owner/driver of the said O/V.
6. This court vide order dated 02.12.2016 has disposed of CMA No. 08/2015 with following observation:
6|Page ......Only plea taken is that the driver/owner of the offending vehicle namely Tariq Ahmad responsible for death of Mehraj-ud-din Rather, did not have a valid driving license. To establish this evidence was let in by Appellant-Insurance Company, RW-R. K Upal. Administrative officer. In his statement, it is contended that the driver of the Tata Passenger Mini Bus the offending vehicle did not hold a valid license having PSV endorsement. This is a violation of the policy conditions. Therefore, the company is not liable to indemnify the insured. The report of the investigator is not on the file. The tribunal also sought for verification to establish the plea of invalid driving license. The owner/driver of the offending vehicle though served earlier was set ex-parte before Tribunal and also before this court. The owner/driver though noticed has not contradicted the claim of the Appellant-Insurance Company.
In this view of the above based on evidence on record, Tribunal should have granted Appellant-Insurance Company the right to recover the compensation from owner/driver of the offending vehicle after settling the claimants. The appeal to that extent is justified and the appellant-Insurance Company to first pay the compensation to the claimants and recover the same from owner of the vehicle.
7. Heard learned counsel for the parties.
8. Learned counsel for the appellant submits that this court being a court of record has to be alive to the fact that there should not be any error in its judgment. Error, if any, having occasioned due to an inference (which do not get corroborated by the record on which it is based) from a misstatement of a
7|Page party, taken true bonafidely by the court would warrant the petition for review to be entertained and delay if any, in approaching the court should not be a disability with the court to entertain the same.
9. On the other hand Mr. Kawoosa, learned counsel appearing for Non-
Applicant/National Insurance Company states that delay cannot be condoned on mere asking. The applicant had due notice of the case which had been filed before the court and so was he required to appear before the court and to project his stand. He being indolent, the court should not accept the prayer made by him for condoning the delay. The grounds taken in terms of the application are vague according to him. He has not quoted the date on which and how he came to know about the passing of the order or thereafter has contacted the counsel or took steps for availing the remedy, is also put forth.
10. In rebuttal, learned counsel for the applicant submits that the contention raised on behalf of the insurance company is devoid of any merit and courts have been liberal in condoning the delay wherever the circumstances warrant so.
The period of delay according to him is not material for entertaining the prayer made for condonation but it is the substance of the ground which the court has to take into consideration. He in this regard has relied on judgments of the Hon'ble Apex Court in case titled Esha Bhattarcharjee Vs. Managing Committee of Raghnathpur Nafar Academy & Ors. 2013 Legal Eagle (SC) 701 and National Insurance Company Versus Swarn Singh reported in AIR 2004 SC 1543. He has also relied on the judgment of this court in case titled
8|Page Union of India and anr. Vs. M/s Godrej Agrovet Limited in CDLOW No. 08 of 2014 and LPAOW NO. 19 of 2014
11. Considered the material on record along with the submission made at the Bar.
The record was also called which reveals that the applicant herein having been put to notice through post. Receipt of Postal Service dated 19.02.2015 is on record. Name of One Mohammad Altaf, Advocate is reflected in order dated 5th March 2015 having appeared on behalf of the applicant. Power of attorney of the said Advocate is however not on the file. Mst. Mukhti/respondent No. 1 has however thereafter been put to notice through Nazir Tamilat of Principal District Judge, Srinagar for appearing before Lok Adalat. The applicant herein has not been put to notice through Tamilat section.
12. The contention raised on behalf of the applicant that not length of delay but sufficiency of the cause is material, cannot be denied. Negligence, deliberate, inaction or lack of bonafides on part of a party or its counsel are some exceptions where the court have been loath to condone the delay. Each case has to be considered however on its own peculiar facts. It is however true that the expression "sufficient cause" has to receive a liberal interpretation so that substantial justice does not become a casualty. It would be quite proper to quote following observation from Eisha Bhatterjee's case:
"15. From the aforesaid authorities the principles that can broadly be culled out are:
i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for
9|Page condonation of delay, for the courts are not supposed to legalise injustice but are obliged to/ remove injustice.
ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
iii) Substantial justice being paramount and pivotal the technical consideration should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v)...
vi)...
vii)...
viii)...
ix)...
x)...
xi)...
xii)...
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
It is pertinent to state that the Hon'ble Apex Court in case titled O.P. Kathpalia vs Lakhmir Singh (Dead) And Ors AIR 1984 SC 1744, a bench of three judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned.
13. While examining the case in hand, it is candid that a statement has been referred in the judgment of this Court which is been stated to have been relied by the insurance company and in terms of which it is being sounded that the 10 | P a g e applicant was not holding a valid driving license. This statement was not in conformity with the record and the evidence. Inaction on the part of the counsel or a party to contest the case in these peculiar facts and circumstances would not incapacitate the court to reflect the correct position emerging from the pleadings or the evidence on record and the conclusion permissible under law to be thereafter drawn. In this view of the mater, I am of the opinion that rigid approach need not to be adopted in interpreting the terms "sufficient cause" mentioned by Section 5 of the Limitation Act. Notice of the fact can also not be lost that when the counsel had appeared on behalf of the respondent No. 2/applicant herein on 5th March 2015, it was his duty thereafter to prosecute the matter as the practice prevalent in the High Court for prosecution of the case which is different from the District courts. In District Courts, the parties generally know well in advance the dates on which the case is listed and what is further action is required to be taken on the date fixed.
Cause list prepared and displayed on Notice Board or Website by High Court is not generally seen by common people. Prior to the date of allowing of the appeal on 02.12.2016, the case had been fixed before Lok Adalat of which no notice appears to have been given by the present applicant as notice available on record has been served only to respondent No. 1.
14. Pertinent to refer herein that the Hon'ble Apex court in case titled Rafiq Vs Munshilal (1981) 2 SCC 788, had emphasized the duty of a counsel engaged 11 | P a g e by a layman along with inaction of the lawyer resulting in harm to the party and its impact as:
"3.The disturbing feature of the case is that under our present adversary legal system where the parties generally through their advocates the obligations of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. AT the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is not part of his job... in yet another decision reported in (2008) 13 SCC 395 (Secretary, Department of Horticulture, Chandigarh Vs. Raghu Raj), the Hon'ble Supreme Court in parage 24 held thus:
24. When a party engage an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate."
15. Viewing the matter in its totality and while adopting a pragmatic and justice oriented approach, it is deemed appropriate to condone the delay, which is 12 | P a g e accordingly condoned subject to payment of Rs. 5000/- as costs to be deposited in the Advocate Welfare Fund.
Disposed of as above.
(Rashid Ali Dar) Judge Srinagar 03.05.2019 "Aasif AASIF GUL 2019.05.08 02:50 I attest to the accuracy and integrity of this document 13 | P a g e