Ast 1 fa591.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.591 OF 2009 Smt.Shantabai Ananda Jagtap & Anr. ... Appellants. Vs. Mr.Jayram Ganpati Jagtap & Anr. ... Respondents. -------------- Mr. Tejpal S. Ingale for Appellants. Mr.Nikhil Mehta i/b. M/s. KMC Legal for Respondent No.2. -------------- CORAM : V.R.KINGAONKAR, J. DATE : APRIL 9, 2010. P.C. 1. This Appeal arises out of Judgment rendered by learned Commissioner for Workmen’s Compensation, Sangli in proceedings of Application(W.C.) No.20/C-9/2004, whereby and whereunder, the application came to be dismissed. The facts necessary for the purpose of the present Appeal are that the Appellants filed application for compensation under provisions of the Workmen’s Compensation Act, 1923 alleging that deceased Machindra Ananda Jagtap was involved in Ast 2 fa591.09.sxw vehicular accident while driving Jeep vehicle No.MH-10-8363 on 17 th August, 1993, which was owned by the Respondent No.1 and insured with the Respondent No.2, at the relevant time. They asserted that death of said Machindra Ananda Jagtap occurred during course of his employment and had causal connection with the nature of employment. Consequently, they claimed Rs.1,13,855/- alongwith interest and penalty. The Application was filed on 2 nd August, 2004 after almost 11 years from the date of the alleged accident and therefore, it came to be dismissed mainly on the ground of delay, which was found to be unjustified and uncondonable. The learned Commissioner further held that the Appellants had filed claim Petition for recovery of the compensation under provisions of the Motor Vehicle Act, 1988 against the owner and insurer of the tanker vehicle, with which there was collision of the jeep vehicle and, therefore, the application was not maintainable. The relevant issues framed by the Commissioner were as shown below: Ast 3 fa591.09.sxw Issues Findings 1-A) Whether the Applicants have shown sufficient and reasonable grounds for condonation of delay ? In the negative. 1-B) Whether the present Application is tenable in this Court in view of MACT No.1458/1993 filed by the Applicants in Hukkeri M.A.C. Tribunal ? In the negative. 1. Do the Applicants prove that, the accident of deceased was arose during the course of and out of his employment with Opponent No.1 ? Does not survive, but if answer is required then in the negative. 2. Do the Applicants further prove the age, and wages of the deceased ? Only age is proved. 3. Whether the Opponents No.1 & 2 are jointly & severally liable to pay W.C.to the Applicants ? In the negative. 4. What order ? Application dismissed. 2. Heard learned Counsel for the parties. 3. Sofar as maintainability of the Application is concerned, it emerges from the record that the Appellants had not filed the claim petition under Ast 4 fa591.09.sxw section 166 of the Motor Vehicles Act as against the present Respondents. It appears that the learned Commissioner committed factual error while giving finding that they had filed such application against the Respondents. It appears that composite trial was held in respect of the claim petition filed by the applicants and some other victims of the same accident and therefore, such confusion did occur in the mind of the learned Commissioner. Considering settled legal position, it is difficult to say that the application was barred for the reason that the Appellants had proceeded against the owner and insurer of the tanker vehicle. It could not be regarded as barred under section 166 of the Motor Vehicles Act or the W.C.Act, nor principle of res judicata was applicable. 4. The material question, however, is whether the delay of 11 years could be justified by the Appellants and that the learned Commissioner committed any error while dismissing the application holding it as barred by limitation. The Appellants alleged that they are illiterate persons and Ast 5 fa591.09.sxw could not immediately file a separate application until conclusion of the proceedings of Petition under section 166 of the Motor Vehicle Act. They alleged that they have chosen wrong forum and the time taken in litigating before the said wrong forum could be excluded under section 14 of the Limitation Act. They alleged that the copies were obtained after certain delay and therefore, even after decision of the Motor Vehicles Tribunal for about one year, they could not file the application. The grounds for condonation of the delay are obviously required to be convincing and ought to be within the parameters of the Section 5 of the Limitation Act. Casual statement in the application that the delay was due to litigation before the another forum will be hardly of any material effect. In fact, the Appellants had not chosen wrong forum because their application under section 166 of the Motor Vehicles Act was against the owner and insurer of the tanker vehicle, with which the jeep vehicle had the collision. They had not proceeded against the Respondents at the relevant time. Nor they were non-suited by any forum as against the Respondents for litigating before any wrong forum, as such. On careful Ast 6 fa591.09.sxw consideration of Section 14 of the Limitation Act, it is amply clear that for seeking benefit for extension of time under the relevant provisions, the party is required to prove bonafidely the litigation was being pursued before a wrong forum and that, time has been consumed due to bonafide reasons. When it is a fact that the Appellants had not pursued any remedy against the Respondents before the Motor Accident Claim Tribunal, there is no question of litigating before any wrong forum against them. The ground that the Applicants are illiterate, is also of no much avail. The illiteracy could detain them for some marginal period but when they were represented by a lawyer in the earlier proceedings before the MACT, it is explicit that they had opportunity to get legal advice. They did not file any affidavit of concerned lawyer to show that wrong advice was given. In this view of the matter provision of Section 14 of the Limitation Act is not attracted in the present case. 5. A Division Bench of this Court in “State of Maharashtra & ors. v/s. Vithu Kalya Govari & Ors.” 2008(4) All M.R. 856 held that such Ast 7 fa591.09.sxw explanation of “procedural hassles cannot be regarded as sufficient”. In “Special Land Acquisition Officer and Anr. v/s. Jose Prazeres DE Piedade Pinto & Ors.” 2006(4) Mh.L.J. 318, it is held that the explanation must be satisfactory. 6. Considering the peculiar facts and situation appeared in the present case, I am of the opinion that the delay is enormous and the learned Commissioner rightly declined to condone the delay. Hence, there appears no serious error committed by the learned Commissioner while dismissing the Application. The Appeal is destitute of any substance and is therefore, dismissed. [V.R.KINGAONKAR, J]