IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 MACA.No. 2382 of 2008() ----------------------- OPMV.397/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): CLAIMANTS 1 TO 3 & 5 LEGAL HEIRS OF DECEASED 4TH -------------------------------------------------------------- 1. SHAREEFA, AGED 36 YEARS, W/O.HAMSA, CHARIYA PARAMBATH HOUSE, AZHIYOOR AMSOM AND DESOM, VATAKARA TALUK. 2. FARHAS, S/O.HAMSA, AGED 21 YEARS, DATE OF BIRTH: 21.10.1986, REPRESENTED BY MOTHER/NEXT FRIEND SHAREEFA, DO. 3. FIROZ (MINOR), S/O.HAMSA, AGED 16 YEARS, DATE OF BIRTH 17.11.1991, REPRSENTED BY HIS MOTHER/NEXT FRIEND SHAREEFA, W/O.HAMSA, DO. DO. 4. KADEESA, AGED 75 YEARS, W/O.BABU, CHARIYA PARAMBATH HOUSE, AZHIYOOR AMSOM AND DESOM, VATAKARA TALUK. 5. RABI, D/O.LATE BABU, AGED 52 YEARS, DO. DO. 6. MAHAMOOD, S/O.LATE BABU, AGED 50 YEARS, DO. DO. 7. JAMEELA, D/O.LATE BABU, AGED 48 YEARS, DO. DO. 8. SAINABA, D/O.LATE BABU, AGED 46 YEARS, DO. DO. 9. ASHRAF, S/O.LATE BABU, AGED 44 YEARS, DO. DO. BY ADV. SMT.K.V.RESHMI MACA.No. 2382 of 2008 - 2 - RESPONDENT(S): RESPONDENTS --------------- 1. SMT.ALEENA MATHEW, W/O.DR.MATHEW, PUNNACHALIL HOUSE, THIRUVAMKULAM POST, (OWNER OF THE LORRY NO. KL7 L 57) 2. MR.UNNIKRISHNAN, S/O.MUTHU, N.M.D.S INDIA MOTOR WORKSHOP, MUTHUPARIYARAM P.O., PALAKKAD DISTRICT, (DRIVER OF THE LORRY NO.KL 7 L 57). 3. M/S.UNITED INDIA INSURANCE CO.LTD., TRIPPUNITHURA BRANCH OFFICE, ERNAKULAM DISTRICT, POLICY NO.101301/31/21/16/379/96, CERTIFICATE NO. 072742/96 VALID FROM 29.9.96 TO 28.9.97 (INSURER OF THE LORRY NO. KL 7 L 57). ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2009, ALONG WITH MACA NO. 2399 OF 2008 & MACA NO. 2401 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ C.M.Appl.No.2446 of 2008 & M.A.C.A. No.2382 of 2008, C.M.Appl.No.2460 of 2008 & M.A.C.A. No.2399 of 2008 and C.M.Appl.No.2463 of 2008 & M.A.C.A. No.2401 of 2008 ------------------------------------- Dated this the 18th day of February, 2009 JUDGMENT BASANT, J. These 3 appeals are preferred against a common award passed by the Tribunal disposing of 4 claim petitions. The common award was passed as early as on 07.02.04. Claims relate to death of 3 deceased persons. Claimants are all legal heirs/dependents of the respective deceased persons. 2. C.M.Applications have been filed to condone the delay of 1609, 1610 and 1611 days in filing the appeals. It is prayed that a lenient view may be taken and the long delay indicated above may be condoned. 3. What is the reason ? The learned counsel for the appellants submits that the appellants in all the 3 cases had entrusted the files for preferring appeals to a counsel at Calicut. That counsel had misplaced the records. Hence no appeals could be filed. This was realised long later. Thereupon a fresh copy C.M.Appl.No.2446 of 2008 & M.A.C.A. No.2382 of 2008, C.M.Appl.No.2460 of 2008 & M.A.C.A. No.2399 of 2008 and C.M.Appl.No.2463 of 2008 & M.A.C.A. No.2401 of 2008 2 application was filed and copy of the award was obtained. One of the appellants and the counsel concerned have filed affidavits in all the cases. It is prayed that a lenient view may be taken and the delay may be condoned. 4. The applications are stoutly opposed by the counsel for the insurance company. The counsel contends that absolutely no reasons exist to justify the condonation of the long, inordinate and unexplained delay in filing these appeals. The apology of an excuse offered for not filing the appeals in time, cannot be accepted at all, submits the learned counsel for the insurance company. It may be true that the counsel had omitted to file the appeals. But the conduct of the appellants not making any enquiries as to what the counsel has done with the papers entrusted to him must convey eloquently to the Court that there was no serious intention to prefer an appeal. Long later they have waken up from their slumber and are trying to justify the inordinate delay in filing the appeals, contends counsel. 5. We are prima facie not satisfied at all that the reasons advanced for condonation of delay are justified or sufficient to C.M.Appl.No.2446 of 2008 & M.A.C.A. No.2382 of 2008, C.M.Appl.No.2460 of 2008 & M.A.C.A. No.2399 of 2008 and C.M.Appl.No.2463 of 2008 & M.A.C.A. No.2401 of 2008 3 show indulgence in favour of the appellants. However, the learned counsel for the appellants was requested to explain the nature of the challenge which the appellants want to raise to verify whether any failure of justice would result by our not condoning the delay. 6. The only plank on which the impugned common award is assailed by the appellants is that the multiplicands taken in the 3 cases are not adequate. In 2 cases monthly earnings of the deceased was reckoned as Rs.4,800/- p.m and in the third it was reckoned as Rs.3,200/- p.m. Certificates were produced to show that the deceased persons employed abroad were earning amounts equivalent to Indian Rs.20,000/-, Rs.12,000/- and Rs.8,000/- respectively. The Tribunal took note of the fact that one of the certificates produced cannot be said to be authentic and accepted implicitly. Even if the certificates were accepted, the Tribunal took the view that income earned during a temporary phase of employment abroad cannot be reckoned as the multiplicand when the multiplier is ascertained depending on the age and the compensation for loss of dependency is worked C.M.Appl.No.2446 of 2008 & M.A.C.A. No.2382 of 2008, C.M.Appl.No.2460 of 2008 & M.A.C.A. No.2399 of 2008 and C.M.Appl.No.2463 of 2008 & M.A.C.A. No.2401 of 2008 4 out. The Tribunal realistically felt that only an amount of Rs.4,800/-, Rs.4,800/- and Rs.3,200/- p.m can be reckoned as the multiplicand applicable to the 3 deceased persons in the facts and circumstances of these cases. We are not satisfied that any failure of justice results on account of the course adopted by the Tribunal or by our not entertaining the applications for condonation of delay favourably. The C.M.Applications for condonation of delay are, in these circumstances dismissed. Consequently the appeals shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-