ash 1 caf-1138.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO. 1138 OF 2009 IN FIRST APPEAL ST.NO.4515 OF 2009 The National Insurance Company Limited. .. Applicant. Vs Smt. Sunanda Shantaram Newale & Others. .. Respondents -- Shri Rahul Mehta i/by KMC Legal Venture for the Applicant. Shri Manish M. Pabale for Respondent Nos.1, 2 and 3. Shri J.S. Kapse for Respondent No.5. -- CORAM ; A.S. OKA, J DATED : 3RD AUGUST, 2011 P.C. . Heard learned counsel appearing for the Applicant, the learned counsel appearing for the contesting Respondents and the learned counsel appearing for the added Respondent No.5. This is an application for condonation of delay made by the Applicant. The Applicant is the insurer of the offending vehicle which is involved in the accident. The challenge is to the award made in a claim petition under Section 166 of the Motor Vehicles Act, 1988. The impugned award was made on 21st August, 2008. 2. In Paragraph 3 of the Application, it is stated thus:- ash 2 caf-1138.09 “3. .....The impugned judgment and award was passed on 21.08.08 and immediately the Advocate for the Appellant at Pune was required to procure the certified copy of the impugned judgment and award and have the same delivered to the Appellant accordingly. The Advocate for the Appellant at Pune did not inform the Appellant as regards the passing of the impugned judgment and award on 21.08.08. The Advocate for the Appellant at Pune thereafter sometime in the first week of November 2008 informed the Appellant at its branch office at Pune for the first time that the impugned award and judgment had been passed against the Appellant and that it is a fit case to file Appeal in this Hon’ble Court and that necessary steps be taken accordingly. The Appellant was shocked and surprised to learn that such judgment and award had been passed and immediately informed the Advocate for the Appellant at Pune that the certified copy of the impugned judgment and award be provided to the Appellant o an extremely urgent basis. The Advocate for the Appellant at Pune applied for the certified copy of the impugned judgment and award only on 15.11.08 and which certified copy of the impugned judgment and award was made available by the concerned department of the MACT at Pune only on 18.12.08 to the Advocate for the Appellant at Pune.” ( Underline added ) 3. It is further stated in the Application that after scrutinizing the papers, the matter was referred to the Advocate at Bombay to determine the viability of preferring of an appeal. On 5th January, 2009, the Advocate found that the present case was a fit case for preferring an appeal and accordingly, the Appeal along with the delay condonation application was preferred on 21st January, 2009. In view of the specific allegations made in the Application against the Advocate representing the Applicant before the Tribunal, this Court had directed ash 3 caf-1138.09 the Respondent to implead the Advocate as a party. 4. The added Respondent No.5 has filed a reply. The Respondent No.5- the Advocate has stated that immediately after passing of the impugned judgment and award, the Applicant was telephonically informed by him about the same. He stated that the other claim petitions viz. Claim Petition Nos. 533 of 2004, 159 of 2004 and 177 of 2004 arising out of the same accident were also decided on the same day and that he informed the Applicant about the decision of the said Applications. He denied that he has advised the Applicant to prefer an appeal against the impugned judgment. In fact, in the affidavit, the Advocate has stated that the Applicant has satisfied the awards passed in the companion Claim Petition Nos.533 of 2004 and other matters arising out of the same accident. It is stated that as the said awards were satisfied, the appeal could not be preferred on the ground that the driver of the offending vehicle was not having a valid licence. He stated that he had informed the Company accordingly by a letter dated 27th October, 2008. He has denied that for the first time in the month of November, 2008, he informed the Pune office of the Applicant Company regarding the impugned judgment. He has stated that in November, 2008, the Pune office of the Applicant asked him to apply for certified copy but he was never informed that the certified copy was required for preferring an Appeal. He stated that he applied ash 4 caf-1138.09 for certified copies on 15th November, 2008 and received the same on 18th December, 2008. He has stated that for the first time by a letter dated 21st December, 2008 the Applicant informed the said Advocate for the first time that the Applicant intends to prefer an appeal against the impugned judgment and award. He stated that as he was not informed earlier about the decision of the Applicant of preferring an appeal, he forwarded the certified copies in a routine course. 5. The learned counsel appearing for the Applicant on instructions fairly accepted that the Advocate had informed the office of the Applicant about the impugned judgment and award immediately after the same was delivered. 6. The delay may be of only 45 days. However, an attempt was made by the Applicant to shift the entire blame on the Advocate appearing for the Applicant before the Tribunal. The averments made in the Application and in particular Paragraph 3 are false as demonstrated by the reply filed by the Respondent No.5. Moreover, it is also disclosed that the awards passed in the companion claim petitions arising out of the same accident have been satisfied by the Applicant though a defence was taken that the driver of the offending vehicle was not holding a valid licence to drive the vehicle. Perusal of the Memorandum of Appeal in the present Appeal shows that the ground of ash 5 caf-1138.09 absence of driving license has been taken. 7. It is true that while deciding the application for condonation of delay, a liberal approach is required to be adopted. However, the approach of the litigant should be fair. In the present case, the Applicant has chosen to make allegations against its own Advocate which could not be substantiated. Considering all the aforesaid circumstances and the conduct of the Applicant, no case is made out for condonation of delay. The Application is rejected. The Application for stay is also rejected. ( A.S. OKA, J )