HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Condl (C) No. 57/2008 in CIMA No. 97/2008 CMP No. 125/2008 Date of Decision: 04.12.2008 United India Insurance Co. Ltd. Vs. Harjinder Kour & Ors. Coram: Mr. Justice J.P.Singh, Judge. Appearing counsel: For Applicant-Appellant : Mr. Ravinder Sharma, Advocate. For Respondents : Mr. R.K.Bhatia, Advocate. i) Whether to be reported in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No Aggrieved by Motor Accidents Claims Tribunal, Jammu’s award for an amount of Rs.15,09,840/- in favour of Harjinder Kour & Ors. for the death of Sep. Balihar Singh who had died because of rash and negligent driving of Vehicle No. JK02J-7114 on July 18, 2003, the United India Insurance Company Limited has filed this appeal along with an application seeking condonation of 131 days’ delay in filing the appeal. The case set up by the Insurance Company for condonation of delay is that after obtaining certified copy of award dated 14.09.2007 on September 18, 2007, the company had sent the papers to its 2 Regional Office seeking its permission to file appeals against the awards made in Claim Petition no. 98/Claim and 97/Claim. While declining permission to file appeal against the award of the Tribunal insofar as it pertained to Claim Petition No. 97 titled Kaushalya Devi versus Tarsem Lal, the Regional Office had recommended filing of appeal against the award made in respect of Claim Petition No. 98 titled Harjinder Kour & others versus Tarsem Lal & others. The Company is stated to have sent the papers for filing the appeal to Sh. Ravinder Sharma, Advocate, who, because of the critical illness of his mother could not do so. His mother, later expired disabling further the learned Advocate to attend the Courts because of the post-death ceremonies which he had to perform for her mother. Delay of 131 days in filing the appeal is, therefore, sought to be condoned on the ground that there was no deliberate or intentional lapse by the Company in preferring the appeal. Appellant’s learned counsel relies on State of Haryana versus Chandra Mani and others, reported as AIR 1996 SC, 1623 seeking condonation of delay on the grounds projected by the appellant. I have considered the submissions of learned counsel for the parties and gone through the judgments cited at the Bar. The expression “sufficient cause” appearing in the second proviso to Section 173 of the Motor vehicles Act, 1988 is in pari-materia with the expression “sufficient cause” appearing in Section 5 of the Limitation Act. 3 While dealing with the expression “sufficient cause” appearing in Section 5 of the Limitation Act, Hon’ble Supreme Court of India has observed in its latest decision, Perumon Bhagvathy Devaswom Perinadu Village versus Bhargavi Amma (Dead) by L.Rs. & Ors., reported as 2008 AIR SCW, 6025 that the words “sufficient cause” appearing in Section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant. Decisive factor in condonation of delay, is not the length of delay, but sufficiency of satisfactory explanation. Extent or degree of leniency to be shown by a Court depends on nature of application and facts and circumstances of the case. Courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses. Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only when something required to be done by him, is not so done. Keeping in view the law laid-down by Hon’ble Supreme Court of India in the aforementioned decision, it is apparent that appellant- Insurance Company had done all that it was required to do in ensuring the filing of the appeal against the award of the Tribunal and had even handed over the papers to its Advocate for filing the appeal. It further appears that it was because of the Advocate’s inability to come to the Courts because of the critical illness of the mother and later because of her death that the appeal could not be filed within the prescribed period of limitation. As the Insurance Company has inter alia 4 questioned the quantum of compensation awarded by the Tribunal in favour of the claimants, so keeping in view the facts and circumstances of the case, I am of the view that appellant-Insurance company needs to be allowed opportunity to contest the award on merits as it may not be sound exercise of discretion to dismiss appellant’s appeal on the ground of limitation thereby disabling it to project its case on merits as to whether or not quantum of compensation awarded by the Tribunal was just compensation in terms of Section 168 of the Motor Vehicles Act particularly when delay in filing the appeal had occasioned because of lawyers disability to file the appeal despite Company’s having delivered him requisite papers for the purpose. Although, it is no doubt true that with the lapse of period of limitation provided for an appeal, a right vests in the opposite party to get the fruits of the litigation yet the loss which the appellant may suffer because of not preferring appeal within the prescribed period of limitation, too cannot be lost sight of. Thus, with a view to deliver substantial justice, both the things, i.e., benefit accruing to the opposite party and the loss which may occasion to an appellant are required to be balanced in such a way that technicalities do not hamper the process of delivering substantial justice. I am, therefore, of the view that in the facts and circumstances of the present case, the Company cannot be left to suffer because of the lapse of its Advocate, And in view of the law laid down by Hon’ble Supreme Court of India, a liberal view is warranted in the 5 facts and circumstances of the case. I am further of the view that any delay which may occasion in according finality to the decision on claimants’ claim petition, in condoning delay in filing appeal can be suitably compensated in the present case by awarding costs. I am, therefore, of the view that the Insurance Company has succeeded in establishing that there was sufficient cause for its not filing the appeal within the prescribed period of limitation. Delay in filing the appeal is, accordingly, condoned subject to payment of Rs.10,000/- as costs by the appellant-company to the claimants and to their depositing the awarded amount in the Court within a period of six weeks. The amount when deposited shall be kept in a fixed deposit initially for a period of three months. The claimants shall enjoy liberty to seek release of so much of the awarded amount of compensation to which they may be found entitled to at the time of consideration of their application, if so moved. This application is, accordingly, allowed on above terms. ( J. P. Singh ) Judge Jammu 04.12.2008 Pawan Chopra