IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMP(M) No.116 of 2011 and FAO No.49 of 2011. Judgment Reserved on: 19.07.2011 Date of decision: 05.08.2011 National Insurance Company Ltd. … …Applicant-Appellant Versus Besakhi Devi and Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Applicant-Appellant: Ms.Devyani Sharma, Advocate. For Respondents 1 to 4: Ms.Leena, Advocate vice Mr.G.R. Palsra, Advocate. For Respondent No.5: Mr.Hoshiar Kaushal, Advocate vice Mr.Anand Sharma, Advocate. Dev Darshan Sud,J. CMP(M) No.116 of 2011. This application has been preferred by the Insurance Company under Section 5 of the Limitation Act praying for condonation of delay in challenging the award passed by the learned Motor Accident Claims Tribunal in favour of the respondents. 2. It is undisputed before me that the appeal was barred by two years and twenty days. The reasons advanced in the application are:- 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 (a) That the counsel representing the petitioner before the learned Motor Accident Claims Tribunal never informed the Company with respect to the decision in the case. In the first week of December, 2010 the Branch Office of the Company in Mandi received a notice in execution of the order and it is only then that this fact came to their knowledge. (b) The application then states that vide letter dated 9.12.2010 the execution alongwith summons was forwarded to the Divisional Office at Palampur. (c) The pleading then proceeds with the pleadings that immediate steps were initiated between the offices concerned and ultimately the award was received from the Advocate by his letter dated 21.12.2010. (d) The matter/case was then examined in detail by the Company officials. It is also pleaded that 21 cases were pending before the Motor Accident Claims Tribunal, Mandi arising out of the same accident and some of them had already been decided and appeal(s) had already been filed before this Court on various grounds available in law. The case 3 was, therefore, referred to the Legal Department of the Regional Office of the Company at Chandigarh, which according to the petitioner, is the competent authority to take decision with respect to further legal proceedings etc. (e) There is Committee constituted by the Company which checks/scrutinizes various claims and decides whether it is fit case for filing an appeal or not. Again the pleading is that 21 cases had been instituted before the Tribunal out of which in some cases an appeal has been filed. Final decision was taken on 5th January, 2011 to challenge the award in this case and the matter was approved by the Regional Manager, Mandi on 13th January, 2011. This is the gist of the pleadings. 3. Learned counsel appearing for the petitioner submits that the Company would not gain anything by filing appeals, which are barred by limitation and it has been diligently pursuing the other cases arising out of the same accident. The process for filing the appeals had to be followed according to the norms evolved by the Company. For this purpose, the opinion of various officers has to be obtained.. 4. Learned counsel relies upon the decision of the Supreme Court in State of Nagaland vs. Lipok AO and 4 Others, (2005)3 SCC 752. In particular learned counsel has emphasized:- “8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy (1998)7 SCC 123 it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. 9. What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co. Ltd. v. Shanti Misra (1975)2 SCC 840 this Court held that discretion given by Section 5 should not be defined or 5 crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram ILR (1918) 45 Cal.94 it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari (1969)1 SCR 1006 a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. (p-757) 5. Learned counsel also relies upon the decision of this Court in Indira Devi vs. Surender Gupta, 2011(1) Civil Court Cases 366 (H.P.), holding:- “10. It is by now well settled that term “sufficient cause” used in section 5 of the Limitation Act, is required to be interpreted liberally because it does not cause prejudice to either of the parties. On the other hand non condonation of delay, and dismissing the appeal, on account of bar of limitation, may cause immense loss to the party, whose petition for condonation of delay is rejected. The other side can always be compensated by means of costs on account of delay in filing the appeal” (p-368) 6 6. In Balwant Singh (Dead) vs. Jagdish Singh and Others, (2010)8 SCC 685, the Supreme Court, while interpreting the word “sufficient cause”, has laid down the principle applicable holding:- “37. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom (2008)8 SCC 321. In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In SCC para 13 of the judgment, the Court held as under: (SCC pp.329-30) "(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable,pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words `sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not 7 on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant." (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently 8 than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects. (v) Want of "diligence" or "inaction" can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” (emphasis in original) We may also notice here that this judgment had been followed with approval by an equi-bench of this 9 Court in Katari Suryanarayana (2009)11 SCC 183. 38. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi- benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the 10 delay in the filing of such applications.” 7. True, in many cases, delay is caused by the tardy attitude of bureaucrats, but then that cannot be used as an excuse in every case to claim condonation of delay as a matter of right. I have noticed from the pleadings that the Company was already aware about the pendency of other cases. It is a commercial organization and if all those cases were being monitored by the Company why is it that this case was not monitored and the petitioner suddenly woke up after two years and eleven days. The explanation becomes difficult to accept. The quality of explanation offered cannot be accepted as being sufficient to invoke the provisions of Section 5 of the Limitation Act. All that I need add is that the procedure followed by the Company for filing appeal etc. cannot be engrafted as an exception to the law of limitation. The procedure may be laudable but everyone has to comply with the existing law. It is also settled that limitation also vests rights in the opposite party which cannot be lightly effaced. In this case, I do not find that the explanation which has been furnished by the petitioner is of the quality constituting sufficient cause. There is, thus, no merit in this petition which is dismissed. FAO No.49 of 2011. Dismissed. 11 All miscellaneous applications are disposed of. August 5, 2011 (Dev Darshan Sud) (aks) Judge.