Dismissed

New India Assurance Co. Ltd. v. Smti Ili Devi and Anr.

Gauhati HC18 Nov 2019I.A.(Civil)/3349/2017

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an application seeking condonation of delay of 553 days for filing a connected appeal against a Motor Accident Claims Tribunal award. The Court found the delay unexplained and the appeal's basis, regarding the deceased's role as a rider versus pillion, to be misconceived based on incorrect translation of G.D. entries.

What did the court decide?

Application for condonation of delay of 553 days dismissed; the appeal could not be entertained.

New India Assurance Co. Ltd. Vs Smti Ili Devi and Anr. — Insurance | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010043702017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil) 3349/2017

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1:NEW INDIA ASSURANCE CO. LTD.

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HAVING ITS REGISTERED AND HEAD OFFICE AT NEW INDIA ASSURANCE BUILDING 87, MAHATMA GANDHI ROAD, FORT MUMBAI 400001 AND REGIONAL OFFICE AT G.S. ROAD, GUWAHATI-5, REPRESENTED BY THE CHIEF REGIONAL MANAGER

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VERSUS

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1:SMTI ILI DEVI and ANR,

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W/O LATE GOBIN CH. NATH, VILL. and P.O. SAPMARI, P.S. and DIST. MORIGAON ASSAM 782001

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2:PALLAB TERON S/O SRI BIREN TERON VILL. BORCHAKABAHA P.O. TUKUNABORI DIST. MORIGAON ASSAM 782001 OWNER OF THE VEHICLE NO. AS-21/A-7768 MOTORCYCL

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Advocate for the Petitioner : MR. N KALITA

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Advocate for the Respondent : MR. M TALUKDAR (R1)

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 18-11-2019

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Heard Mr. S. Dutta, learned counsel for the applicant and Mr. M. Talukdar, learned counsel for the respondent No. 1.

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This application under Second proviso to Section 173 of the Motor Vehicles Act, 1988 (the MV Act, in short) read with Section 5 of the Limitation Act, 1963 is preferred seeking condonation of delay of 553 days in filing the connected appeal under Section 173(1) of the MV Act against the judgment and order dated 23.11.2015 passed by the learned Member, Motor Accident Claims Tribunal, Morigaon, Assam (the Tribunal, in short) in MAC Case No. 89/2012. By the said judgment and award dated 23.11.2015, the Tribunal has awarded an amount of Rs. 10,72,200/- as compensation with the direction to the applicant/insurer to pay the same to the respondent No. 1 within 3(three) months of the passing of the said judgment and award.

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The case projected by the respondent No. 1 as claimant, was that on 29.05.2011, when the deceased, Late Gobin Chandra Nath was going from Mayong towards Morigaon as a pillion rider in the motor cycle bearing Registration No. AS-21/A-7768 along with the rider, one Aliur Rahman, the said motor cycle met with an accident at Pani Bagara Hatigarh, when one person was riding a bi-cycle suddenly crossed the road which resulted into imbalance of the motor cycle as it was in high-speed. As the rider lost control of the motor cycle, the deceased fell down from it and sustaining serious injuries, succumbed to the injuries. The deceased was a retired Army man and was a pension holder. Claiming compensation for the death of deceased, the wife as the claimant, i.e. the respondent No. 1 in this I.A., filed a claim application, which was registered as MAC Case No. 89/2012. The said claim application, MAC Case No. 89/2012, was disposed of by the Tribunal by the judgment and award dated 23.11.2015, awarding an amount of Rs. 10, 72,000/- as compensation along with interest @ 8% per annum.

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The applicant-insurer stated to have received the certified copy of the said judgment and award on 16.12.2015 and the legal opinion in respect of the same was forwarded on 05.01.2016 to the Branch Office of the applicant. The Regional Office stated to have received the folder in due course and the same was sent for further legal opinion.

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The applicant stated to have received the legal opinion dated 25.01.2016 only on 01.03.2016, but there is no explanation for the period from 26.01.2016 to 29.02.2016. As the legal opinion expressed doubt as regards the FIR filed in the accident, stated to have been lodged after 8 months of the alleged accident, there could have been some collusion between

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Page No.# 3/4

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the owner, the rider and the claimant and therefore, it was decided to get the copies of Morigaon Police Station G.D. Entry Nos. 694 and 697 to ascertain the real facts of the case. The copies of the said GD Entries were, thereafter, supplied to the learned counsel on 28.04.2016 and thereafter, another legal opinion was obtained on 02.05.2016, wherein, it was advised to file a review application against the judgment and award dated 23.11.2015. Accordingly, a review application was filed before the Tribunal, which was registered as M.J. Case (MACT) No. 07/2016, annexed as Annexure-1 to the connected appeal. The said review application was accompanied by an application seeking condonation of delay of 191 days.

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The learned Tribunal had taken up the application for condonation of delay and finding no ground for condoning the delay in reviewing the review application, the learned Tribunal had dismissed the application for condonation of delay by an order dated 11.05.2017. As a result, the delay of 191 days had occurred between the impugned judgment and order dated 16.12.2015 and the institution of the review petition remained unexplained until date. Thereafter, the applicant seeking condonation of delay of 553 days in preferring the connected appeal was filed on 28.08.2017.

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As has been indicated above, the learned applicant has prayed for the delay of 191 days that has occurred in preferring the impugned judgment and award dated 23.11.2015 and in instituting the review application before the learned Tribunal. Furthermore, to ascertain whether the applicant had a prima-facie case to mount a challenge against the impugned judgment and award dated 23.11.2015, this Court has deemed it appropriate to peruse the contents of the GD Entry Nos. 694 and 697 dated 29.05.2011 recorded on the date of alleged accident. On perusal of the contents of the certified copies of the said two G.D. Entries, in vernacular, it is noticed that GD Entry No. 694 was recorded in the Police Station when it received the information that there was an accident between one motor cycle and one bicycle, wherein the rider of the motor cycle had received serious injuries and he was taken to a hospital in Morigaon. After recording the said GD Entries No. 694, the police personnel from Morigaon Police Station had proceeded to the place of accident. After causing investigation pursuant to the GD Entry No. 694 by visiting the place of accident, the other GD Entry No. 697 was recorded at 11.30 p.m. GD Entry No. 697 had recorded that the pillion rider of the motor cycle, Gobin Chandra Nath had died of injuries in the hospital on the same day. The

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said factum of death of Gobin Chandra Nath was recorded after making investigation by the police personnel and the case reflected by the claimant is also to the same effect. The connected appeal has been preferred by the applicant on the ground that the deceased was the rider of the motor cycle, not the pillion rider, and therefore, there cannot be any liability on the part the applicant being the insurer, to satisfy the award of the Tribunal. The basis of such contention was the G.D. Entries, referred above. By annexed the English translated copies of the said G.D. Entries along with the copies of the original G.D. Entries, recorded in Assamese, it is averred that the deceased was the rider. But on a close perusal of both the G.D. Entries, it has emerged that translated version in English is not the correct depiction of the statements contained in the Assamese version. The doubt expressed about the collusion is misplaced and the appeal was filed by the projecting an incorrect picture, which is found to be a misconceived one, dilatory in nature.

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Having gone through the contents of this application seeking condonation of delay of 553 days in preferring the connected appeal, this Court is hold that the applicant has failed to show cause, much less sufficient cause, to condone the period of delay of 553 days in preferring the connected appeal for the reasons indicated above. Accordingly, this application seeking condonation of delay, in my considered opinion, cannot be entertained to condone and accordingly, the same is dismissed.

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JUDGE

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Comparing Assistant

New India Assurance Co. Ltd. v. Smti Ili Devi and Anr.

Case brief

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New India Assurance Co. Ltd. v. Smti Ili Devi and Anr.

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