Allowed

New India Assurance Co. Ltd. v. Smti Mamta Das and 4 Ors.

Gauhati HC5 Apr 2019I.A.(Civil)/416/2018

Case brief

AI extract

What is this about?

The Gauhati High Court allowed an application seeking condonation of a 1132-day delay in filing a connected appeal. The delay was attributed to the discovery of alleged fraud and misrepresentation regarding a Motor Accident Claims Tribunal award, which led to a late review petition and subsequent litigation.

What did the court decide?

Delay of 1132 days in filing connected appeal is condoned; application disposed of as allowed.

New India Assurance Co. Ltd. Vs Smti Mamta Das and 4 Ors. — Insurance | Gauhati HC (2019)

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Page No.# 1/5

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GAHC010027982018

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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) 416/2018

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1:NEW INDIA ASSURANCE CO. LTD.

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HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 87 M.G. ROAD, FORT MUMBAI AND ITS REGIONAL OFFICE AT G.S. ROAD, BHANGAGARH, GUWAHATI

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VERSUS

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1:SMTI MAMTA DAS and 4 ORS,

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R/O LACHIT NAGAR, BYE LANE NO. 7, HOUSE NO. 10, P.O. LACHIT NAGAR, P.S. PALTAN BAZAR, GUWAHATI 781007, DIST. KAMRUP (M), ASSAM

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2:AKSHITA DAS R/O LACHIT NAGAR BYE LANE NO. 7 HOUSE NO. 10 P.O. LACHIT NAGAR P.S. PALTAN BAZAR GUWAHATI 781007 DIST. KAMRUP (M) ASSAM

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3:SMTI DOLI DAS R/O LACHIT NAGAR BYE LANE NO. 7 HOUSE NO. 10 P.O. LACHIT NAGAR P.S. PALTAN BAZAR GUWAHATI 781007 DIST. KAMRUP (M) ASSAM RESPONDENT NO. 2 BEING MINOR IS REPRESENTED BY HER LEGAL GUARDIAN MOTHER I.E. RESPONDENT NO. 1

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Page No.# 2/5

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4:MD. AKAN ALI R/O N.T. ROAD NALBARI P.O. AND P.S. NALBARI PIN 781335 DIST. NALBARI ASSAM (OWNER OF SANTRO VEHICLE NO. AS-01AP-4138)

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5:MD. KUTUB ALI R/O VILL. PANGAMARI P.O. AND P.S. PALASHBARI DIST. KAMRUP ASSAM PIN 781128 (DRIVER OF THE VEHICLE NO. AS-01AP-4138

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Advocate for the Petitioner : MR. R GOSWAMI

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Advocate for the Respondent : MR. S K JAIN

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Linked Case : MACApp. 72/2018

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1:NEW INDIA ASSURANCE CO. LTD. HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 87 M.G. ROAD FORT MUMBAI AND ITS REGIONAL OFFICE AT G.S. ROAD BHANGAGARH GUWAHATI

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VERSUS

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1:SMTI MAMTA DAS and 4 ORS

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R/O LACHIT NAGAR BYE LANE NO. 7 HOUSE NO. 10 P.O. LACHIT NAGAR P.S. PALTAN BAZAR GUWAHATI 781007 DIST. KAMRUP (M) ASSAM

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Page No.# 3/5

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2:AKSHITA DAS R/O LACHIT NAGAR BYE LANE NO. 7 HOUSE NO. 10 P.O. LACHIT NAGAR P.S. PALTAN BAZAR GUWAHATI 781007 DIST. KAMRUP (M) ASSAM 3:SMTI DOLI DAS R/O LACHIT NAGAR BYE LANE NO. 7 HOUSE NO. 10 P.O. LACHIT NAGAR P.S. PALTAN BAZAR GUWAHATI 781007 DIST. KAMRUP (M) ASSAM RESPONDENT NO. 2 BEING MINOR IS REPRESENTED BY HER LEGAL GUARDIAN MOTHER I.E. RESPONDENT NO. 1

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4:MD. AKAN ALI R/O N.T. ROAD NALBARI P.O. AND P.S. NALBARI PIN 781335 DIST. NALBARI ASSAM (OWNER OF SANTRO VEHICLE NO. AS-01AP-4138)

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5:MD. KUTUB ALI R/O VILL. PANGAMARI P.O. AND P.S. PALASHBARI DIST. KAMRUP ASSAM PIN 781128 (DRIVER OF THE VEHICLE NO. AS-01AP-4138)

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Advocate for the Petitioner : MR. R GOSWAMI Advocate for the Respondent : MR. S K JAIN

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Page No.# 4/5

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BEFORE HONOURABLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 05-04-2019

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Heard Mr. R. Goswami, learned counsel for the applicant.

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The applicant Insurance Company by filing this application seeks the condonation of 1132 days delay in filing the connected appeal against the judgment and award dated 05.07.2014 passed by the learned Additional District Judge No. 2, Kamrup (M), in MAC Case No. 2277/2010 by which a sum of Rs. 28 lakhs along with interest at the rate of 6% per annum from the date of filing of the claim petition till final claim has been awarded to the respondent Nos. 1,2 and 3/ Claimants.

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The learned counsel for the applicant submits that pursuant to the pronouncement of the judgment and award by the learned Tribunal, the applicant Insurance Company was in the process of preparing the ground work for filing the appeal. In the process, it came to light that there was collusion at some quarters for making illegal gains. With such discovery, the appellant Insurance Company started reinvestigating into the matter from the very beginning. On making such investigation, it was found that there were two GD entries for the same accident. While the first GD entry was not investigated into, the second GD entry made pursuant to the FIR lodged after a month from the date of entry of the first GD for the same accident came to be investigated by the Police. Based on the investigation, a claim for compensation was made before the Tribunal by the respondent Nos. 1,2 and 3/ Claimants.

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The applicant, therefore, filed a review petition before the learned Tribunal concerned along with an application for condonation of delay in filing the review petition. The condonation application however was not allowed and as a result, the review petition came to be dismissed. In the meantime, Bakijai Case No. 48/2015 came to be instituted by the claimants and against which the applicant approached this Court by filing WP(C) No. 4040/2016. The writ petition was however disposed of by this Court in view of the dismissal of the review petition by the Tribunal. Having no option the applicant has approached this Court by filing the connected appeal. In the process, a delay of 1132 days has occasioned. He, therefore, submits that the delay in filing the appeal has been done due to the peculiar facts and circumstances of the case.

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Mr. R. Goswami, learned counsel draws attention of this Court to the decision of the Apex Court rendered in the case of United India Insurance Co. Ltd. Vs. Rajendra Singh and Others reported in (2000)3 SCC 581 . Referring to the said decision the learned counsel submits that the Apex Court has held that the Motor Accident Claim Tribunal has the power to recall its own award if it is convinced that it had been obtained by practising fraud or misrepresentation. This is exactly why the applicant has sought review of the award in the present case a well. The review unfortunately was not considered in the right perspective by the Tribunal. He also submits that the claimants in the meantime have withdrawn a sum of Rs. 28 lakhs which was deposited before the Tribunal and that the only pending amount is a sum of Rs. 10 lakhs deposited before the Registry of this Court. He, thus submits that no prejudice will be caused to the respondents if the delay is condoned and appeal is heard on merit.

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Mr. S.K. Jain, learned counsel appearing for the respondent Nos. 1,2 and 3 on the other hand submits that there is a great delay in filing the connected appeal. The applicant in fact by filing a review petition before the learned Tribunal and thereafter, by filing a writ petition before this Court have only dragged the claimants through a series of litigations for none of their fault. The number of days delay would only show the lapses on the part of the applicant in not filing he appeal on time. He

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Page No.# 5/5

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also submits that there are no elements of misrepresentation or fraud on the part of the respondents in filing the claim petition before the Tribunal. The deceased who is the husband of the respondent No. 1 while travelling in his own motor cycle was hit by a Santro Car which was driven in a rash and negligent manner and for which, the husband of the respondent No. 1 succumbed to his injuries 3 days after the accident. On the basis of the income of the deceased the Tribunal awarded the compensation and therefore, besides there being no proper explanation for the delay in filing the appeal, the case even otherwise on merits is only in favour of the claimants. As such, the same be dismissed.

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I have heard the submissions made by learned counsels for the rival parties and I have also perused the materials available on record. The delay sought to be condoned as may be noticed is 1132 days to file the connected appeal. As may be further noticed from the case projected by the applicants, there seems to be some element of misrepresentation or even fraud committed at some quarters in view of the fact that for the accident which led to death of the deceased, two G.D. entries were made by the investigating agency but with two separate and distinct background. Such discovery only came belatedly and the applicant apparently took remedial steps by approaching the investigating agency. It is further noticed that out of the compensation awarded by the learned Tribunal, the claimants have already withdrawn the principal amount i.e. Rs. 28 lakhs. What remains is the interests amounting to Rs. 10 lakhs which was deposited before the Registry of this Court. The Apex Court taking exception to the fact that in case of there being a misrepresentation or fraud for obtaining an award from the Motor Accident Claims Tribunal in the case of Rajendra Singh and Others (Supra), held that a review will be maintainable before the Tribunal. Apart from this ground, it may be noticed that review ordinarily is not maintainable before the Tribunal. Therefore, upon considering the matter in its entirety, I am of the considered view that the delay in filing the connected appeal should be condoned and that the appeal be considered on merit.

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In that view of the matter the delay of 1132 days in filing the connected appeal stands condoned.

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The I.A.(C) application accordingly stands disposed of as allowed.

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JUDGE

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Comparing Assistant

New India Assurance Co. Ltd. v. Smti Mamta Das and 4 Ors.

Case brief

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New India Assurance Co. Ltd. v. Smti Mamta Das and 4 Ors.

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