1 IN THE HIGH COURT OF BOMBAY AT GOA MISCELLANEOUS CIVIL APPLICATION NO. 392 OF 2007 Shri Sabaji S. Govekar, about 51 years of age, and r/o H. No.B-2, P & T Colony, Alto-Porvorim, Bardez-Goa. ... Applicant versus 1. Shri Raimundo Fernandes, major in age, businessman, r/o H. No. 498-A, Dongrim, Navelim, Salcete-Goa and presently residing at Divine Guest House, P/ O Calangute, River Cross, Baga, Bardez-Goa. 2. The New India Insurance Co. Ltd., having its office at Coskar Corner, Mapusa-Goa. ... Respondents Mr. V. G. P. Dukle, Advocate for the Applicant. Mr. V. Menezes, Advocate for Respondent No.1. Mr. M. S. Joshi, Advocate for Respondent No.2. 2 CORAM : N. A. BRITTO, J. DATE : 28TH FEBRUARY, 2008. ORAL ORDER The Applicant herein is seeking condonation of delay in filing the appeal. As per the Applicant delay to be condoned is 733 days. As per Respondent No.2 it is 743 days. As per the Office of this Court the delay is of 655 days. 2. I proceed on the assumption that the delay has been correctly computed by the Office as 655 days. 3. Applicant's scooter was involved in an accident on 29-5-2000 with that of Respondent No.1 and Respondent No.1(Claimant) filed a Claim Petition bearing No. 60 of 2000. By Judgment/Order dated 14-9-2004, the learned M.A.C.T. was pleased to order the payment of compensation of Rs.66,650/- to the Claimant/Respondent No.1 with interest at the rate of 9% per annum and was further pleased to direct that the said amount be recovered by Respondent No.2/Insurer from the Applicant/Respondent No.1 since the Applicant/Respondent No.1 had only a learner's license on the date of accident. 4. It appears that Execution Proceedings bearing No.24/2005 to execute the said Award came to be filed and the Applicant received the notice of the same in April, 2006. According to the Applicant, it is then that he came to know that 3 the Insurer/Respondent No.2 was trying to recover the said amount from the Applicant ... etc. 5. To appreciate the controversy involved, Records and Proceedings were called for and the said records show that on 16-1-2001 two separate Vakalatnamas were filed in the evening session at about 4 p.m. First, given by the Applicant and accepted by Advocate Ms. Jalpa Fatarpekar and one presumably Advocate P. Manerikar, both colleagues of Advocate Shri U. R. Timble. The second given by Respondent No.2 and accepted by Shri U. R. Timble and a few others including the said Ms. Jalpa Fatarpekar. 6. The Applicant/Respondent No.1 did not file any written statement but written statement dated 28-7-2001 was filed by the Insurer/Respondent No.2 on 10-8-2001. In the said written statement the Insurer/Respondent No.2 took a plea that the Applicant/Respondent No.1 was not holding a valid and effective driving license and thus the vehicle was being driven in breach of the terms of the Insurance Policy and therefore Insurer/Respondent No.2 was not liable under the policy and therefore the petition ought to be dismissed against Respondent No.2. 7. This written statement taking the the said plea was filed apparently after lot of correspondence was exchanged between the Applicant and the Insurer/Respondent No.2. 4 8. In the claim form filed by the Applicant, the Applicant had given the name of Mr. Amit M. Govekar as the pillion rider. The Insurer/Respondent No.2 by their letter dated 29-6-2001 brought to the notice of the Applicant that in the Police Report submitted by him he had stated that the Applicant was being accompanied by a permanent license holder by name Mr. Amrut M. Govekar and requested the Applicant to send a copy of the driving license of Mr. Amrut M. Govekar for verification. The Applicant wrote to the Insurer/Respondent No.2 a letter dated 8-10-2001 stating that by oversight he had mentioned the name of pillion rider as Mr. Amit M. Govekar in the claim form instead of Mr. Amrit alias Mohan Govekar and requested the Insurer to read the name of his pillion rider as Amrut alias Mohan Govekar instead of Amit Govekar. It appears that the Applicant filed an affidavit dated 8-9-2001 of Mohan Vassudev Govekar alias Amrut stating that his name was Mohan Vassudev Govekar but he was also known as Amrut and Mohan Vassudev Govekar and Amrut were the names of one and the same person. Although correspondence between the Applicant and the Insurer/Respondent No.2 continued, the fact remains that the Insurer/Respondent No.2 had disowned their liability when they filed the W.S. on 10-8-2001. 9. Now, it is the case of the Applicant that he had received a letter from the Insurer/Respondent No.2 dated 21-12-2000 requesting him to supply certain documents which he supplied to them and some time in January, 2001 the Regional Manager of Respondent No.2 informed the Applicant that he would be defended along with the said Insurance Company in the said petition with their 5 lawyer and the Applicant will have to co-operate with their lawyer and accordingly gave to the Applicant the name and address of their lawyer Shri U. R. Timble and accordingly he went to his office and met Shri U. R. Timble who gave this Applicant Vakalatnama to sign and accordingly the Applicant signed the Vakalatnama as on 16-1-2001 which was the date of the hearing in the matter. This case of the Applicant that he met Shri U. R. Timble who gave to him the Vakalatnama and he signed the same in his presence cannot be accepted. It cannot be accepted firstly because Shri U. R. Timble in his affidavit has stated that it is absolutely false that the Applicant came to his office and signed the Vakalatnama on 16-1-2001 or at any time. He also stated that he did not accept nor file Vakalatnama for him in the matter and the statements and allegations made against him in the application are false. Shri U. R. Timble has also stated that it is only after filing Execution Proceedings that one day the Applicant came to his office and forcibly entered his cabin and started questioning him about the said proceedings. Secondly, because Advocate Ms. Jalpa Fatarpekar who initially appeared for the Applicant, has explained under what circumstances she came to file the Vakalatnama on behalf of the Applicant. She has stated that on 16-1-2001 Advocate Shri U. R. Timble had handed over to her Vakalatnama of Respondent No.2-Company duly accepted by him and instructed her to file the same and seek time for W.S. She has stated that she was delayed in another Court and she requested Advocate Prashant Manerikar to appear in the matter and file Vakalatnama but then she reached at 4 p.m. the M.A.C.T. found that she was late and the matter was set ex-parte against the Respondents and the Applicant who 6 was present at that time told her that the Insurance Company had sent him and also sent a message that they should appear for him also and to that she told him that they would require a letter from the Insurance Company to that effect, upon which he promised to get the same before the next date of hearing. She stated that she was reluctant to file a Vakalatnama but her colleague Advocate P. Manerikar who was accompanying her told her that he personally knew the Applicant and he must be told the truth believing the Applicant and Advocate Manerikar, in good faith, she got a blank Vakalatnama she was carrying with her signed by the Applicant and filed the same though she had no instructions to that effect from Shri Timble and on the next day she called up the Insurance Company and told them that they had told the Applicant to produce his documents and the Company would take up his defence if he produced the documents. She has also stated that she had made it clear to the Applicant that she will not be able to appear for him, if the Insurance Company does not give instructions to take up his defence. She also stated that the production of documents by the Applicant was delayed by him and therefore she prepared a draft written statement and forwarded it to the Insurer and in July, 2001 she was instructed, that since the Applicant had not produced the driving license of the pillion rider the defence of breach in terms of the policy should be taken. According to her, the Applicant had produced documents which were not in consonance with his statement in the claim form. 10. I have no doubt in my mind that both the Advocates i.e. Ms. Fatarpekar and Shri Timble have deposed correct facts which are otherwise borne 7 by the record which shows that two Vakalatnamas were filed, one by the Insurer given to Advocate Timble and the other by the Applicant to Ms. Fatarpekar which she accepted presumably along with one Prashant Manerikar. It is therefore obvious that the story set out by the Applicant that he had met Shri U. R. Timble who gave to him the Vakalatnama and he signed the same in his presence cannot be accepted. 11. Advocate Ms. Fatarpekar, in her affidavit, has further stated that she had informed the Applicant that she could not appear for him and he should engage some other Advocate and file a written statement and she had orally informed the Tribunal about the same and the Applicant had told her that he would do so. She has also stated that the Applicant had told her that the pillion rider named by him in the claim form did not hold valid license and he had also refrained from filing his written statement and thereafter stopped attending the hearing and in view of his not defending the case the Tribunal had even allowed the application under Section 170 of the M. V. Act, filed on behalf of Respondent No.2, and the Applicant was fully aware of the fact that all through she was not appearing for him and she was appearing only for Respondent No.2. 12. Although Ms. Fatarpekar stated that the Applicant came at the stage of the evidence of the Insurer/Respondent No.2 himself, it appears that he was called by the Insurer/Respondent No.2 and was examined before the Tribunal on 21-8-2004. The only lapse which has taken place appears to be on the part of the 8 said Ms. Fatarpekar by not withdrawing her appearance formally put by her on behalf of the Applicant, before taking up the case of the Insurer/Respondent No.2 and it is this situation which is sought to be exploited by the Applicant for getting the delay condoned. 13. The Applicant has further stated that subsequently he approached Advocate Timble in his office at least on four occasions to find out whether he required his presence or any information or any document and at no stage did the said Advocate inform the Applicant that the written statement had to be filed and every time the Applicant was told that he need not come unless called for and everything was going on in the right way in the matter. These facts stated by the Applicant are again contrary to the facts stated by Ms. Fatarpekar and Shri Timble. 14. The Applicant has further stated that occasionally he used to phone the office of Advocate Timble and used to confirm that the matter was going on till some time in the third week of August, 2004 when he received a phone call from Advocate Ms. Fatarpekar who is a junior colleague of Advocate Timble who called the Applicant to file an affidavit so that the Applicant could depose in the matter. The Applicant has not set out as to which Advocate he would contact in the office of Advocate Timble but one fact remains that is the Applicant was called to give evidence on behalf of Respondent No.1 and to that extent this part of his story could be believed. 9 15. The Applicant gave his evidence on 21-8-2004 and in his cross- examination, on behalf of the Claimants in the said Claim Petition he stated that on 29-5-2000 he was holding a learner's license to drive a two wheeler and further stated that there was a pillion rider. He admitted having received the notice of the Claim Petition and that he had not filed any written statement. However, he did not state what was the name of his pillion rider nor gave any explanation as to why he had not filed a written statement. It is at least by then that the Applicant ought to have realized that he had not taken any defence and the case might go against him but he took no further steps to put the matters right. 16. It is also the case of the Applicant that after his deposition was over he realized that his license was not produced in Court and this was pointed out to him by Ms. Fatarpekar who told him that she would produce the said license before Judgment. It appears that an effort was made by Ms. Fatarpekar to produce the said license which otherwise was of no consequence. What was of consequence was whether the Applicant's pillion rider had a driving license. 17. The Applicant was aware that Execution Proceedings were filed, somewhere in April, 2006 and from then to 27-9-2006 he has again sought to explain the delay. As per him, he immediately went and questioned Shri Timble as to why he was required to pay the amount to the Insurance Company and Shri Timble told him that somehow the Tribunal had ordered the same to be paid 10 and he could not help it. The Applicant has further stated that thereafter he asked Shri Timble to return his file and Shri Timble told him that there was a common file and he could not return the same to him whereupon the Applicant requested him to take xerox copies and he would pay for it but Shri Timble refused to give even xerox copies to him and locked the file in the drawer for which he was terribly upset and after one week he went to get the file from Shri Timble who informed him that the file was sent to the Insurance Company who had instructed not to issue any copies to the Applicant. The Applicant stated that he drafted a complaint to the Bar Council of Maharashtra and Goa and showed it to Shri Timble stating that he would file the same, in case his file was not returned. Learned Counsel on behalf of the Applicant has stated in the course of arguments that no such complaint was filed as it would involve Ms. Fatarpekar, a junior Advocate of Shri Timble. The Applicant further stated that Shri Timble stated that he will file a suit for damages if such a complaint was filed and Shri Timble came to assault him and chased him out of his office. 18. As per the Applicant, he tried to consult one Advocate by name Mr. Shirodkar. No date has been mentioned as to when he met him. The Applicant has further stated that Mr. Shirodkar sent him to another Advocate and here again no date has been mentioned. The Applicant has further stated that every Advocate was asking for the file and Shri Timble was not giving the file. He further stated that the Advocate even phoned Shri Timble at least on five occasions requesting him to give xerox copies but every time his voice was heard he would cut the line. 11 This version is difficult to be accepted in the light of the incident of assault and chase narrated by the Applicant. As per the Applicant, he then consulted another Advocate by name Santosh Naik somewhere in May, 2006 and then engaged Advocate Adpaikar to defend Execution Application and as there was vacation in between certified copies of Judgment and Award were obtained in the third week of June, 2006. It is difficult to accept that none of the four Advocates to which the Applicant had approached did not advise him that in case Shri Timble was withholding his papers, the documents could have been obtained from the records and proceedings of the trial Court. 19. The Applicant has stated that all papers from the Court file were obtained in stages by July, 2006. Here again, one does not know why case papers had to be obtained in stages. The Applicant has again stated that the last certified copy received was on 20-9-2006 and the time taken thereafter was taken by his Advocate to finalize the appeal and the application for condonation of delay. The Applicant has stated that it is Advocate Santosh Naik that referred him to another Advocate in Margao who in turn referred him to the present Advocate Shri Dukle and who after going through the papers sought for some more documents including the application under Section 170 of the M. V. Act filed by Advocate Ms. Fatarpekar. In my view, the delay sought to be explained by the Applicant from April, 2006 to 27-9-2006 is far from satisfactory. 12 20. Learned Counsel on behalf of the Applicant has placed reliance on N. Balakrishnan v. M. Krishnamurthy((1998) 7 SCC 123) and has submitted that the case at hand is similar to the case reported. However, I must hasten to add that in the reported case the Applicant was successful in obtaining a compensation of Rs.50,000/- for non action on the part of his Advocate. However, that is not the case at hand. 21. As observed by the Apex Court in the same case, acceptability of the explanation for the delay is the sole criteria and the length of delay is not at all relevant. From the facts disclosed, it appears that the Applicant was not at all diligent first in giving to the Insurer the driving license of the pillion rider in time then neglecting to file a W.S. As already stated, the facts attributed by him in para 4 of the application have been found to be false. It appears that the Applicant remained totally inactive from 16-1-2001 to April, 2006 when he received notice of execution proceedings. As stated by the Apex Court in P. K. Ramachandran v. State of Kerala and another((1997) 7 SCC 556) the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. It appears that the Applicant woke up only when he came to know that the Insurer/Respondent No.2 would proceed against him to recover the compensation awarded to the Claimants/Respondent No.1. 13 22. Considering the facts of the case, this is not a fit case to condone the delay as some of the explanations given by the Applicant are false and fabricated and others are far from satisfactory. 23. Application therefore is hereby dismissed. N. A. BRITTO, J. RD