Dismissed¶60

Vinod Pandey v. Jagnu Kaiwarta

Chhattisgarh HC16 Jan 2025MAC/155/2021

Case brief

AI extract

What is this about?

Motor-accident appeal (MAC No. 155 of 2021, CGHC Bilaspur, 17/01/2025): 2130-day delay in owner's appeal against Rs.3,64,000/- MACT award left unexplained; notice held served by newspaper publication (‘Haribhumi’, Order 5 Rule 20 CPC) leading to ex parte proceedings; condonation application rejected citing Pathapati Subba Reddy (2024 INSC 286); appeal dismissed, no costs.

What did the court decide?

Service of notice on the appellant was ultimately effected through paper publication in the local Hindi daily ‘Haribhumi’ on 16.12.2011, whereafter the appellant was proceeded ex parte on 10.01.2012. ¶53

Vinod Pandey Vs Jagnu Kaiwarta — Motor Accident Claims | Chhattisgarh HC (2025)

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Digitally signed by REKHA SINGH

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2025:CGHC:3076

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 155 of 2021

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1 - Vinod Pandey S/o Shri Laxmi Kumar Pandey Aged About 61 Years R/o Seepat Chowk Sarkanda Police Station Sarkanda, District Bilaspur Chhattisgarh (Owner Of Truck Bearing No. C. G. 10/ C- 4002), District : Bilaspur, Chhattisgarh

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... Appellant

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versus

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1 - Jagnu Kaiwarta S/o Radhuram Kaiwarta Aged About 48 Years R/o Village Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh

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2 - Smt. Gaukarhin Bai W/o Jagnu Kaiwarta Aged About 40 Years R/o Village Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur Chhattisgarh

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3 - Rampyari Kaiwarta D/o Jagnu Kaiwarta Aged About 14 Years The Minor, Through Natural Guardian Claimant No. 1 Jagnu Kaiwarta R/o Village Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur Chhattisgarh

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4 - Ku. Maheshwari D/o Jagnu Kaiwarta Aged About 12 Years The Minor, Through Natural Guardian Claimant No. 1 Jagnu Kaiwarta R/o Village Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur Chhattisgarh

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5 - Ku. Likheshwari D/o Jagnu Kaiwarta Aged About 10 Years The Minor, Through Natural Guardian Claimant No. 1 Jagnu Kaiwarta R/o Village Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur Chhattisgarh

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6 - Mukesh Kaiwarta S/o Jagnu Kaiwarta Aged About 8 Years The Minor, Through Natural Guardian Claimant No. 1 Jagnu Kaiwarta R/o Village Tikripara, Malhar Chowki- Malhar, Police Station Masturi District Bilaspur Chhattisgarh

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7 - Rammanohar Gond S/o Mohan Singh Gond Aged About 25 Years R/o Village Manikpuri Police Station Kota Chowki Belgahna, District Bilaspur Chhattisgarh ( Driver Of Truck Bearing No. C. G. 10/ C- 4002)

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8 - The Oriental Insurance Company Limited Through Branch Manager,

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Branch Office Rama Trade Center, Near Bus Stand Bilaspur District Bilaspur Chhattisgarh ( Insurer Of Truck Bearing No. C. G. 10/ C- 4002)

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... Respondents

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For Appellant : Mr. Vineet Kumar Pandey, Advocate For Respondent No. 8 : Mr. Akash Shrivastava, Advocate holding the brief of Mr R.N. Pusty, Advocate

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Hon’ble Shri Justice Rakesh Mohan Pandey Judgment on Board

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17/01/2025

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The appellant/Non-applicant No.1/owner of the offending vehicle has preferred this appeal according to the provisions of Section 173 of the Motor Vehicles Act, 1988 against the award passed by the VIth Additional Motor Accident Claims Tribunal, Bilaspur, District Bilaspur (C.G.) in Claim Case No.20/2012 dated 25.01.2014 wherein and whereby, an award of Rs.3,64,000/- with interest @ 7.5 % per annum was passed against the owner and driver of the offending vehicle.

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The appellant has filed this appeal with a delay of 2130 days. An application for condonation of delay has been preferred under Section 5 of the Limitation Act. It is stated in the application that the learned Tribunal passed the award on 25.01.2014 fastening the liability on the owner and driver of the offending vehicle whereas summons was not duly served upon the appellant, therefore, he could not appear before the learned Tribunal. It is further stated that the appellant was proceeded ex parte . It is also pleaded that for the first time, the appellant came to know about passing the ex parte award on 14.01.2021 and thereafter, he applied for the certified copy of the award and the other relevant documents and immediately thereafter, filed an appeal on 18.02.2021.

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Mr. Pandey, the learned counsel appearing for the appellant would submit that the notice was properly not served upon the appellant, therefore, he could not appear before the learned Tribunal. He would further submit that the appellant was proceeded ex-parte without service of notice, therefore, the award passed by the learned Tribunal is liable to be set aside. He would contend that the appellant has explained the reasons for the delay properly in the application for condonation of delay and thus, he would pray to condone the delay.

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On the other hand, Mr. Akash Shrivastava, the learned counsel appearing for respondent No.8/Insurance Company would submit that for the first time, the notice was issued to the appellant on 03.02.2011 and thereafter, the registered notice was sent to the given address through the registered mode on 14.07.2011. He would further submit that again a notice was issued to the appellant on 03.09.2011 but those notices could not be effected upon the appellant, therefore, an application was moved by the claimants for service of notice through paper publication and that application was allowed by the learned Tribunal on 02.11.2011. He would contend that the notice was published in a local Hindi newspaper ‘Haribhumi’ on 16.12.2011. He would further contend that despite service of notice through paper publication, the appellant did not appear before the learned Tribunal, therefore, vide order dated 10.01.2012, he was proceeded ex-parte. He would also submit that the learned Tribunal has passed an award after taking into consideration the material available on the record.

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Heard learned counsel for the parties and perused the records.

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Recently, the Hon’ble Supreme Court in the matter of Pathapati Subba Reddy (Died) by LRs. & Others vs. The Special Deputy

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Collector (LA) reported in 2024 SCC OnLine SC 513 : 2024 4 SCR 241 : 2024 INSC 286 while dealing with the issue of limitation in paras

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19, 20, 21, 22, 23, 26 & 30 observed and held as under:-

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“ 19. In Maqbul Ahmad and Ors. vs. Onkar Pratap Narain Singh and Ors, A.I.R. 1935 PC 85 , it had been held that the court cannot grant an exemption from limitation on equitable consideration or on the ground of hardship. The court has time and again repeated that when mandatory provision is not complied with and delay is not properly, satisfactorily and convincingly explained, it ought not to condone the delay on sympathetic grounds alone.

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20. In this connection, a reference may be made to Brijesh Kumar and Ors. vs. State of Haryana and Ors, 2014 (4) SCALE 50 , wherein while observing, as above, this Court further laid down that if some person has obtained a relief approaching the court just or immediately when the cause of action had arisen, other persons cannot take the benefit of the same by approaching the court at a belated stage simply on the ground of parity, equity, sympathy and compassion.

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21. In Lanka Venkateswarlu vs. State of Andhra Pradesh & Ors.,[2011] 3 SCR 217 : (2011) 4 SCC 363 , where the High Court, despite unsatisfactory explanation for the delay of 3703 days, had allowed the applications for condonation of delay, this Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. High Court should have exercised the discretion in a systematic and an informed manner. The liberal approach in considering sufficiency of cause for delay should not be allowed to override substantial law of limitation. The Court observed that the concepts such as ‘liberal approach’, ‘justice- oriented approach’ and ‘substantial justice’ cannot be employed to jettison the substantial law of limitation.

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22. It has also been settled vide State of Jharkhand & Ors. vs. Ashok Kumar Chokhani & Ors., AIR 2009 SC 1927 , that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal.

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23. In Basawaraj and Anr. vs. Special Land Acquisition Officer, [2013] 8 SCR 227 : (2013) 14 SCC 81 , this Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression ‘sufficient cause’ as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide

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is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds .

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26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

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(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

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(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

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(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

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(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

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(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

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(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

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(vii) Merits of the case are not required to be considered in condoning the delay; and

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(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision. ”

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30. The aforesaid decisions would not cut any ice as imposition of conditions are not warranted when sufficient cause has not been shown for condoning the delay. Secondly, delay is not liable to be condoned merely because some persons have been granted relief on the facts of their own case.

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Condonation of delay in such circumstances is in violation of the legislative intent or the express provision of the statute. Condoning of the delay merely for the reason that the claimants have been deprived of the interest for the delay without holding that they had made out a case for condoning the delay is not a correct approach, particularly when both the above decisions have been rendered in ignorance of the earlier pronouncement in the case of Basawaraj (supra). ”

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In the present case, the claim case was filed by the claimants on 03.01.2011. On 03.02.2011, an order was passed to issue a notice to the respondents. Vide order dated 14.07.2011, the claimants were directed to serve notice to the appellant through registered post. It appears that the appellant avoided the service of notice even though again on 03.09.2011, an order was passed to pay process fee for service of notice on the appellant. When the appellant did not turn up, an application was moved under Order 5 Rule 20 of CPC for service of notice through paper publication and that application was allowed by the learned Tribunal vide order dated 02.11.2011. The notice was published in a local Hindi newspaper ‘Haribhumi’ on 16.12.2011 and thereafter, the appellant was proceeded ex-parte on 10.01.2012.

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The learned Tribunal thereafter passed an award on 25.01.2014.

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In the application moved by the appellant for condonation of delay, he has not disclosed the correct facts. He stated that the notice could not be served upon the appellant but he was proceeded ex-parte.

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Taking into consideration the fact that there is an enormous delay of 2130 days; the same has not been explained properly by the appellant; the notice was served upon the appellant through paper publication and further considering the law laid down by the Hon’ble Supreme Court in the matter of Pathapati Subba Reddy (supra) , in the opinion

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of this Court, the application for condonation of delay is liable to be and

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is hereby rejected.

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