Allowed

Utpal Paul v. National Insurance Co. Ltd. and 3 Ors.

Gauhati HC12 Sept 2022MC/991/2014

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of an interlocutory application seeking condonation of a 354-day delay in preferring an appeal against a Motor Accident Claims Tribunal award. The Court accepted the applicant's explanation of being away for medical treatment and held no mala fides, relying on precedent to allow the appeal to proceed.

What did the court decide?

The 354-day delay in filing the appeal is condoned and the Interlocutory Application is allowed.

Utpal Paul Vs National Insurance Co. Ltd. and 3 Ors. — Motor Accident Claims | Gauhati HC (2022)

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Page No.# 1/6

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GAHC010008012014

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

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Case No. : MC/991/2014

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UTPAL PAUL S/O SRI BRAJENDRA PAUL, R/O VILL. BONGAON, P.S. BASISTHA, GUWAHATI-29, DIST. KAMRUP M, ASSAM.

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VERSUS

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NATIONAL INSURANCE CO. LTD. and 3 ORS, G.S. ROAD, BHANGAGARH BRANCH, GUWAHATI-5 INSURANCE OF THE MARUTI CAR BEARING REG. NO. AS-01-G-8901

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2:KANAK LAL DEKA

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W/O MANIK CH. DEKA R/O VILL. BELTOLA BAKRAPARA P.S. BASISTHA GUWAHATI DIST. KAMRUP ASSAM OWNER OF THE MARUTI CAR BEARING REG. NO. AS-01-G-8901

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3:UNITED INDIA INSURANCE CO. LTD. G.S. ROAD BHANGAGARH BRANCH GUWAHATI-5 INSURER OF THE SCOOTER BEARING REG. NO. AS-01-G5196

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4:SYED SARFARAJ NEWAJ

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S/O S.U. AHMED R/O HATIGAON MIRJUN NAGAR GUWAHATI-6 DIST. KAMRUP

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ASSAM. OWNER OF THE SCOOTER VESPA BEARING REG. NO. AS-01-G-519

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Advocate for the Petitioner : MS.R T DAS

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Advocate for the Respondent : MR.S R MOLLAHR-4

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BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

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ORDER

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Date : 12.09.2022

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Heard Mr. K. Das, learned counsel for the applicant and Mr. A. Dutta, learned counsel for respondent No.1, Ms. M. Saikia, learned counsel for respondent No.3 and Mr. J. Das, learned counsel appears on behalf of Mr. S. Deka, learned counsel for the respondent No.4. However, none appears for respondent No.2.

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This Interlocutory Application has been filed seeking condonation of delay of 354 days that had occurred in preferring the accompanying appeal against the Judgment and Award dated 06.07.2012 passed by learned Member, Motor Accident Claims Tribunal, Kamrup (M), Guwahati, in MAC Case No. 1475/2005.

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This appeal has been filed by the applicant being aggrieved by the Judgment and Award dated 06.07.2012 passed by learned Member, Motor Accident Claims Tribunal, Kamrup (M), Guwahati, in MAC Case No. 1475/2005 whereby the claim petition of the applicant was allowed and an amount of Rs.2,80,000/- (Rupees two lakhs eighty thousand) only was directed to be paid equally by each of the Insurance

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Companies namely, National Insurance Company and United India Insurance Company.

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The claimant being aggrieved by the amount awarded has challenged the same by filing the statutory appeal. According to the claimant the extent of disability in terms of the Certificate issued was not taken into account by the Motor Accident Claims Tribunal and therefore, the compensation awarded is far less than the amount that ought to have been awarded to the claimant for the injuries suffered.

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Although Notices were served in the matter as far back as 02.04.2014, none of the respondents have filed any objections.

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Inspite of steps taken, service on respondent No.2, namely, the owner of the vehicle could not be effected. Perusal of the impugned Judgment and Award dated 06.07.2012 passed by learned Member, Motor Accident Claims Tribunal, Kamrup (M), Guwahati, in MAC Case No. 1475/2005, reveals that the Tribunal proceeded ex-parte against the owner of the vehicle, who is arrayed here as respondent No.2. The owner did not contest the matter before the Tribunal nor was any direction issued by the Tribunal against the owner for payment of compensation. In that view of the matter, this Court finds that hearing of the application on the issue of condonation can be proceeded with without awaiting for service of Notice on respondent No.2 i.e., the owner of the vehicle. The owner of the vehicle will be heard at the time of hearing the appeal

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along with other respondents.

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The learned counsels for the parties have been heard and the pleadings on record have been perused. It is submitted before the Court that the claimant was out of station for his medical treatment and therefore, he was not aware of the Judgment being delivered by the Tribunal. He came back in the last week of May and applied for certified copy of the Judgment on 13.08.2013, which is delivered to him on 22.08.2013 and subsequently, the appeal was prepared and filed on 25.09.2013. In the process a delay of 354 days had occurred.

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The applicant has urged the following grounds in support of his prayer for condonation of delay:-

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“2 .That, the petitioner sustained injury on 09-03-2005 under the jurisdiction of Basistha Police Station while the petitioner / appellant was returning back from his duties towards his residence at Bongaon, Beltola at Guwahati by riding a scooter near old Sankardev Netralaya a Maruti car (As-01-G-8901) coming from opposite direction in a very rash and negligent manner with great speed hit him from the front side. As a result of the accident the petitioner/ appellant who was riding the scooter thrown on the road and sustained grievous injuries on his body and person. The scooter was also badly damaged. Immediately after the accident the injured / appellant was evacuated to G.M.C.H. but considering his gravity of injuries, he was shifted to Down Town Hospital for better treatment. In the accident both the legs and left hand were badly fractured and also sustained injuries on the throat. The claimant was bedridden for a long time.

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3. That, the petitioner sustained injuries to such an extent that he become physically handicapped. A physical handicapped certificate was also issued by M.M.C.H. indicating nature of disability and as per this certificate the percentage of permanent disability is 45 % ( forty five percent) in relation to muscular weakness pain and restriction of all movements in both knee and hips (blunt) following fracture shaft femur (usupond-Bital) amounting to the permanent disability 45% (forty five).

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7. That, at the time of judgment the petitioner/appellant was out of Assam for his medical treatment and therefore he was not aware of the judgment. He came back on the last week of may and applied for certified copy of the judgment on 13-8-13 and obtained the copy on 22-8-13. ”

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Heard the learned counsels appearing for the parties. Perused the grounds urged for condonation of delay.

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Upon due consideration of the submissions as well as the grounds urged, this Court is of the view that the grounds urged can be considered to be sufficient explanation of the delay that has occurred in filing the accompanying appeal. The explanation put forth for the delay that has occurred does not reveal any mala fides nor can it be seen as a dilatory strategy. On the grounds urged in the I.A., this Court finds that the delay that had occurred in filing the accompanying appeal can be condoned. Relying upon the principle of law laid down in N. Balakrishnan –Vs- M. Krishnamurthy reported in (1998) 7 SCC 123, the delay of 354 days in filing the accompanying appeal against the Judgment and Award dated 06.07.2012 passed by learned Member, Motor Accident Claims Tribunal, Kamrup (M),

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Guwahati, in MAC Case No. 1475/2005 is hereby condoned. 11. Interlocutory Application is accordingly allowed and disposed of.

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Registry is directed to number the accompanying appeal and list it before the Court after 2 (two) weeks.

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JUDGE

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Comparing Assistant

Utpal Paul v. National Insurance Co. Ltd. and 3 Ors.

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Utpal Paul v. National Insurance Co. Ltd. and 3 Ors.

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