Dismissed

Prasobh B. v. New India Assurance Company Ltd.

Kerala HC8 Oct 2020WA/1142/2020

Case brief

AI extract

What is this about?

Injured claimant settled his motor accident claim before the Lok Adalat for Rs.2,20,000 and later sought to quash the award, claiming he had not foreseen future hip replacement surgery. The single Judge refused relief; the Division Bench held the writ petition was maintainable in principle but dismissed the appeal on delay and laches, finding no vitiating element.

What the court decided

AI extract

Prasobh B. Vs New India Assurance Company Ltd. — Motor Accident Claims | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942

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W.A.No.1142 OF 2020

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AGAINST THE JUDGMENT IN WP(C)3025/2019(C) OF HIGH COURT OF KERALA DATED 12.12.2019

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APPELLANT/PETITIONER:

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PRASOBH B., AGED 27 YEARS S/O.RAMAN, ATTAMPULLY HOUSE, VANIYAMKULAM, OTTAPALAM, PALAKKAD DISTRICT, PIN - 679 522.

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BY ADV. SRI.P.JAYARAM

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RESPONDENT/RESPONDENT:

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NEW INDIA ASSURANCE COMPANY LTD. 2ND FLOOR, JRJ COMPLEX, MAIN ROAD, OTTAPALAM, PALAKKAD DISTRICT - 679 522. INSURER OF KL-51-A, 7227 CAR) (POLICY NO.76110331140200001026 AND VALID UPTO 21/4/2015).

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BY ADV. SRI.PREMCHAND M. SRI A.A ZIYAD RAHMAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“C.R.”

JUDGMENT

Dated this the 8^th day of October, 2020

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S. MANIKUMAR, CJ

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Instant writ appeal is filed by the appellant/writ petitioner challenging the judgment dated 12.12.2019 in W.P.(C) No.3025 of 2019, by which a learned single Judge of this Court dismissed the writ petition holding that, in the absence of any vitiating element, writ court cannot interfere with the award passed by the Lok Adalath.

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Short facts leading to the filing of this appeal are that the appellant/writ petitioner was the injured/claimant in O.P.(MV) No.6 of 2015, on the file of Motor Accidents Claims Tribunal, Ottapalam. The accident occurred on 6.9.2014 around 11.30 a.m., at Koonathara. While he was travelling as a pillion rider, in a motorcycle bearing registration No. KL-51 E- 2359 from Kulappully to Koonathara, a car bearing registration No. KL-51 A-7227, driven by the 1^st respondent in the abovesaid O.P.(MV) No.6 of 2015, came from the opposite direction, dashed against the motorcycle, driven by appellant's friend named Sajeesh. Both, the rider of the motorcycle Sajeesh and the appellant, were thrown off from the motorcycle and sustained serious injuries. According to the appellant, the accident occurred due to the rash and negligent driving of the car.

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Immediately, the appellant was taken to P. K. Das Hospital, Vaniamkulam, Ottapalam, and he was hospitalized till 17.09.2014. Surgery was conducted as a part of the treatment and a huge amount of money was spent for the same.

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At the time of accident, the car was owned by the 2^nd respondent in O.P.(MV) No.6 of 2015. New India Assurance Company Limited, Ottapalam, Palakkad, the respondent herein, was the insurer of the car. The car was having valid insurance coverage. All the vehicle documents were in order. The driver of the car had a valid driving licence also. Appellant submitted a claim petition seeking compensation under Section 166 of the Motor Vehicles Act, 1988, for Rs.3,00,000/-. The case was referred from the Motor Accidents Claims Tribunal, Ottapalam to the Lok Adalath organised by Taluk Service Committee, Ottapalam, under Section 19 of the Legal Service Authorities Act, 1987, and numbered as Lok Adalath Case No. O.P.(MV) No.6 of 2015. The original petition was compromised before the Lok Adalath for an amount of Rs.2,20,000/- and that the compensation amount was received by the appellant.

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Now, the grievance of the appellant is that complications related to the injuries suffered in the accident persisted, post settlement also. He was not fully informed about the physical conditions that might subsequently develop, due to the injuries sustained. He had gone into settlement on a

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mistaken understanding that the injuries and the resultant effects/conditions fully subsided and cured. He is now advised to undergo total hip replacement surgery, as a cure for the injuries sustained by him, in the accident, which is costly. According to the appellant, the cost is said to be around Rs.2,50,000/-. Without hip replacement, it will not be possible for him to lead a normal life. Now, the appellant is unable to undertake his avocation as an electrician and his livelihood is affected. It is highly necessary that the appellant be protected against the future treatment and the disability suffered. In such circumstances, he has contended that the award passed by the Legal Service Authority is liable to be set aside.

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Thus, the appellant/writ petitioner has approached this court by filing W.P.(C) No.3025/2019, seeking for a direction to quash Exhibit-P3 award dated 12.12.2015 passed by the Taluk Legal Service Committee, Ottapalam. He has also sought for a direction to restore O.P.(MV) No.6 of 2015 on file and proceed to adjudge the issues involved in the original petition, in accordance with law.

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Considering the facts and circumstances, a learned single Judge dismissed the writ petition, as under:

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“2. The petitioner approached this Court challenging Ext.P3 award. The petitioner submits that he could not bring medical records and other medical bills before the Lok Adalath organised

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by the Ottapalam Taluk Legal Service Committee. The petitioner also submits that the compensation amount was meagre. Therefore, the petitioner seeks review of the award.

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The settlement before the Lok Adalath is a nature of compromise. Such compromise can be interfered only if there exist an vitiating element. In the absence of any vitiating element, the Court cannot interfere with the award passed by the Lok Adalath. There is no merit in the writ petition. Accordingly, it is dismissed.”

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Being aggrieved, instant writ appeal is filed contending, inter alia , that the award brought on record by consensus, by the Legal Service Authority, was on a decision taken by the appellant, under a mistake of fact. At that time, the appellant did not expect future treatment involving huge expenditure, due to the injuries suffered in the accident. The original claim made by him was for Rs.3,00,000/-, whereas, the settlement was arrived at, for an amount of Rs.2,20,000/-. The decision taken by the appellant, before the Lok Adalath, in his wisdom, was due to the then prevailing circumstances, and the immediate expenses undergone, due to the accident. According to him, the future eventuality of being subjected to disability and treatment, involving huge expenditure, was not within the consideration of any of the parties to the settlement, in particular, the appellant.

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Mr. P. Jayaram, learned counsel for the appellant, submitted that appellant had suffered grievous injuries in the accident. He had undergone

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treatment and is treated with recon nailing, which was removed on 3.3.2017. Later on, the appellant developed a medical condition called 'AVN of head of right femur'. Medical advice now is that he has to undergo hip replacement. It is also submitted that the process would cost an approximate amount of Rs. 2.5 lakhs. According to the learned counsel, appellant cannot afford huge expenditure involved in the hip replacement and his health condition is precarious. He is not in a position to earn his livelihood. The award passed in the Lok Adalath by the Taluk Legal Service Committee on 12.12.2015 is violative of the rights of the appellant under Articles 14 and 21 of the Constitution of India. In such circumstances, learned counsel for the appellant sought for reversal of the impugned judgment.

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On the aspect as to whether, a writ petition under Article 226 of the Constitution of India is maintainable, as against an award of the Lok Adalath, appellant has relied on a decision in State of Punjab and another v. Jalour Singh and others [(2008) 2 SCC 660], wherein the Hon'ble Supreme Court held that Lok Adalats have no adjudicatory or judicial functions. The Hon'ble Apex Court further held that functions of the Lok Adalat relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance, and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a

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settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal, in accordance with law. No Lok Adalat has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, Lok Adalats are guided by principles of justice, equity, fair play. The Legal Services Authorities Act, 1987 refers to 'determination' and 'award' by the Lok Adalat. It does not contemplate nor require an adjudicatory judicial determination, but a non-adjudicatory determination, based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The 'award' of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat.

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Reliance was also made on Bharvagi Construction and another v. Kothakapu Muthyam Reddy and others [AIR 2017 SC 4428] , wherein the Hon'ble Apex Court held as under:

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“25) The question arose before this Court (Three Judge Bench) in the case of State of Punjab (supra) as to what is the remedy

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available to the person aggrieved of the award passed by the Lok Adalat under Section 20 of the Act. In that case, the award was passed by the Lok Adalat which had resulted in disposal of the appeal pending before the High Court relating to a claim case arising out of Motor Vehicle Act. One party to the appeal felt aggrieved of the Award and, therefore, questioned its legality and correctness by filing a writ petition under Article 226/227 of the Constitution of India. The High Court dismissed the writ petition holding it to be not maintainable. The aggrieved party, therefore, filed an appeal by way of special leave before this Court. This Court, after examining the scheme of the Act allowed the appeal and set aside the order of the High Court. This Court held that the High Court was not right in dismissing the writ petition as not maintainable. It was held that the only remedy available with the aggrieved person was to challenge the award of the Lok Adalat by filing a writ petition under Article 226 or/and 227 of the Constitution of India in the High Court and that too on very limited grounds. The case was accordingly remanded to the High Court for deciding the writ petition filed by the aggrieved person on its merits in accordance with law.

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This is what Their Lordships held in Para 12:

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“12. It is true that where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to

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any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits.

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But the travails continued. In view of the order dated 11.9.2002 passed by the learned single Judge holding that a petition under Article 227 has to be filed to challenge the order of the Lok Adalat, the appellants filed a petition under Article 227. But the said petition was dismissed by another single Judge on the ground that the order of Lok Adalat passed on 3.8.2001 had attained finality as the objections to it were dismissed on 11.9.2002 and a petition under Article 227 was not maintainable to challenge the order of Lok Adalat. He failed to notice that the order dated 3.8.2001 was neither a decision nor had it attained finality. He also failed to notice that the objections to the order were not rejected by the High Court after consideration on merits. He also overlooked the fact that the learned Judge who decided the appellants' application, had directed that the order of the Lok Adalat should be challenged by filing a petition under Article 227. Be that as it may.

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Thus we find that the Lok Adalat exercised a power/jurisdiction not vested in it. On the other hand, the High Court twice refused to exercise the jurisdiction vested in it, thereby denying justice and driving the appellants to this Court. In this process, a simple appeal by the legal heirs of the deceased for enhancement of compensation, has been tossed around and is pending for more than eight years, putting them to avoidable expense and harassment.

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We, therefore, allow this appeal and quash the order dated 3.8.2001 of the Lok Adalat as also set aside the orders dated 11.9.2002 and 26.2.2003 of the High Court.”

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In our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by virtue of mandate of

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Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenge to the award of Lok Adalat can be done only by filing a writ petition under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limited grounds.

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In the light of clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person(respondents herein/plaintiffs) was to file a writ petition under Article 226 and/or 227 of the Constitution of India in the High Court for challenging the award dated 22.08.2007 passed by the Lok Adalat. It was then for the writ Court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for its quashing.

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The High Court was, therefore, not right in by passing the law laid down by this Court on the ground that the suit can be filed to challenge the award, if the challenge is founded on the allegations of fraud. In our opinion, it was not correct approach of the High Court to deal with the issue in question to which we do not concur.”

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Denying all the contentions, Sri. Premchand M, learned counsel for the respondent/New India Assurance Company Limited, submitted that the case was settled considering the injuries sustained by the appellant, disabilities suffered, expenses incurred, and the future medical expenses. He further submitted that there must be a legal or factual need for a case, for compensation to be re-opened before the MACT, which according to him, is not present. He also submitted that the award of a Lok

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Adalath shall be deemed to be a decree of a Civil Court, which shall be final and binding on all the parties to a dispute, and is not appealable.

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Heard learned counsel for the parties and perused the material on record.

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The accident occurred on 6.9.2014. Appellant suffered grievous injuries, hospitalized on 17.09.2014, and underwent surgery. He made a claim for compensation of Rs. 3 lakhs and filed O.P(MV) No.6 of 2015. The original petition was compromised before the Lok Adalath organised by the Taluk Legal Services Committee, Ottapalam, on 12.12.2015 for an award of Rs. 2,20,000/-. The award of the Lok Adalath dated 12.12.2015 (Exhibit-P3) reads thus:

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“ LOK ADALATH

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Organised by the Ottapalam Taluk Legal Service Committee under Sec. 19 of the Legal Service Authorities Act (Act 39 of 1987)

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THIS THE 12^th DAY OF DECEMBER, 2015

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Name of Judicial Member: Sri. P.C. Paulachen

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Addl. District & Sessions Judge/Motor Accidents Claims Tribunal, Ottapalam 2. Name of member : Sri. K. Madhu, Advocate

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LOK ADALATH CASE NO. OP(MV) 6/2015

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From the Court of

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Motor Accidents Claims Tribunal, Ottapalam

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OP (MV) No. 6/2015 Petitioner/s : Prasobh, S/o. Raman, Attampully Housem

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Vaniamkulam, Ottapalam, Palakkad District, PIN – 679 522.

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By Advocate : Sri. K. Sujith Kumar

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Vs Respondent/s : The New India Assurance Company Limited 2^nd Floor, JRJ Complex, Main Road, Ottapalam, Palakkad District. (R3)

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By Advocate : Sri. Manoj S.

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Referred under Sec. 20(1)(i)(a)/20(1)(i)(ii) of the Legal Services Authorities Act. (Act 39/87)

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This case referred to the Lok Adalat organised by the Ottapalam Legal Services Committee under section 19 of the Legal Services Authorities Act (Act 3 of 1987) coming on before us for endeavours for settlement of the dispute between the parties, being the subject matter of this case, in the presence of the parties and their counsel, and after a full and frank discussion of all the issues factual and legal arising from the cause the parties having agreed before us that there shall be an award / order / decree in terms of settlement hereto made and the parties and their counsel herein having in acceptance of the same signed this in our presence. It is decreed / ordered, award/order/decree in items of settlement hereto made and the parties and the counsel herein having in acceptance of the same signed this in our presence. It is decreed/ordered.

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Settled in Adalath for Rs. 2,20,000/- (Rupees Two lakh twenty thousand only) payment by R3 within one month. Default interest @ 12% p.a. from date of Award till the date of payment. Release the amount.

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Sd/Sd/Judicial Member Member Member Sd/Sd/Petitioner Respondent/s

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Sd/Sd/Counsel for Petitioner Counsel for Respondent/s

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Sd/SHERISTADAR”

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Nailing has been removed in the year 2017. Thereafter, on 17.02.2018, a medical certificate has been issued by P. K. Das Institute of Medical Sciences, Vaniamkulam, Ottapalam, which reads thus:

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“ TO WHOMSOEVER IT MAY CONCERN

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This is to certify that Mr. Prasobh, 27 years male, (Hosp. No:2014/9060066), presented to the hospital on 06.09.2014 following RTA. He sustained fracture neck of femur (right) with open fracture shaft of femur (ipsilateral). He is treated with recon nailing and was removed on 03.03.2017. On follow up, he developed AVN of head of right femur, which needs total hip replacement, which will cost approx 2.5 lakhs. Considering his age, revision of the same should be expected after 15-20 years.”

¶98

Decisions considered by us explain as to what is an 'Award of a Lok Adalath' and makes it clear that it is a compromise arrived at between the parties, reduced in writing, and as per the provisions of the Legal Services Authorities Act, 1987, deemed to be a decree. In the case on hand, such a decree has been passed on 12.12.2015. After obtaining Exhibit-P4 medial certificate dated 17.02.2018, writ petition has been filed in January, 2019, after a period of three years from the date of the award.

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It is well settled that a consent decree is binding on the parties. In the case on hand, there is no case of fraud or misrepresentation. Appellant has averred mistake of fact, which we are inclined to accept, for the reason that the contention of the respondent Insurance Company that, at the time of passing the award, the factor future medical expenses, was also taken note

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of. Thus, on the facts and circumstances of this case, there is no case for lack of unanimity.

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Lack of jurisdiction is not a ground raised. Legality or validity of the award passed by the Lok Adalath, which, in terms of Section 19 of the Legal Services Authorities Act, 1987, deemed to be a decree, is questioned by way of a writ petition under Article 226 of the Constitution of India. No doubt, the Hon'ble Apex Court, in the decisions cited supra, has held that a writ petition is maintainable. But, on the facts and circumstances of the case, we have to consider whether, the injured or the legal representatives of the deceased can approach the writ court, at any time or within a reasonable time.

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On the aspect as to what is reasonable time, let us consider the following decision:

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“Though reasonable time is not prescribed in the rules framed under Article 229 of the Constitution of India, the words "reasonable time'', as explained in Veerayeeammal v. Seeniammal reported in (2002) 1 SCC 134, at paragraph 13, is extracted hereunder:

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"13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to

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idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar"s The Law Lexicon it is defined to mean:

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"A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly"; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."

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In addition to the above, we deem it fit to consider a few decisions,

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on the aspect of delay, laches, equity, and reasonable time, in approaching the writ court.

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(i) In State of M.P., v. Bhailal Bhai reported in AIR 1964 SC 1006 , the Hon'ble Supreme Court held that unreasonable delay denies to the petitioner, the discretionary extraordinary remedy of mandamus, certiorari or other relief.

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(ii) In State of M.P., v. Nandlal Jaismal [(1986) 4 SCC 566], the Hon'ble Supreme Court, at paragraph 24, held as follows:

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“24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate

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delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. ............Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it."

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(iii) In State of Maharastra v. Digambar reported in AIR 1995 SC 1991, the Hon'ble Supreme Court has considered a case where compensation for the acquired land was claimed belatedly, and, at

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paragraphs 12, 18 and 21, held as follows:

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"12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be

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they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.

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Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus:

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"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy."

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Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily."

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(iv) In Chairman, U.P.Jal Nigam and another v. Jaswant Singh reported in AIR 2007 SC 924 , the Hon'ble Supreme Court, after considering a catena of decisions, on the aspect of delay, at paragraph 13, held as follows:

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“13........Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted."

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(v) In Virender Chaudhary v. Bharat Petroleum Corporation (2009) 1 SCC 297, the Hon'ble Apex Court held as follows:

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“The court exercises its jurisdiction only upon satisfying itself that it would be equitable to do so. Delay and/or latches, indisputably, are the relevant factors.

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“15. The Superior Courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the applicant in a case of this nature. While doing so, the court although not oblivious of the fact that no period of limitation is provided for filing a writ petition but emphasize is laid that it should be filed within a reasonable time. A discretionary jurisdiction under Article 226 of the Constitution of India need

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not be exercised if the writ petitioner is guilty of delay and latches.”

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Some of the decisions considered by the Hon'ble Apex Court in Virender Chaudhary's case (cited supra), are reiterated as follows:

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"16. In Uttaranchal Forest Development Corporation and Anr. v. Jabar Singh and Ors. [(2007) 2 SCC 112], the Hon'ble Apex Court held thus:

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"It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the writ petitions were admittedly field in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of latches."

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In New Delhi Municipal Council v. Pan Singh and Ors . [(2007) 9 SCC 278], the Hon'ble Apex Court held thus:

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"16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those

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who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See Govt. of W.B. v. Tarun K. Roy [(2004) 1 SCC 347], U.P. Jal Nigam v. Jaswant Singh [(2006) 11 SCC 464] and Karnataka Power Corpn. Ltd., v. K.Thangappan [(2006) 4 SCC 332] )

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Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India [(1994) 6 SCC 524] and M.R.Gupta v. Union of India [(1995) 5 SCC 628] )”

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(vi) In S.S.Balu v. State of Kerala reported in (2009) 2 SCC 479, at paragraph 17, the Hon'ble Supreme Court held as follows:

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"17. It is also well-settled principle of law that “delay defeats equity”. The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In NDMC v. Pan Singh this Court held: (SCC p. 283, para 16)

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“16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by

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the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction.”

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(vii) In Chennai Metropolitan Water Supply and Sewerage Board v. T.T.Murali Babu reported in (2014) 4 SCC 108, the Hon'ble Supreme Court, at paragraphs 16 and 17, held as follows:

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“16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.

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In the case at hand, though there has been four years’ delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any

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justification. That apart, in the present case, such belated approach gains more significance as the respondentemployee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others’ ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons – who compete with ‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.”

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By applying the law of limitation, as to when a decree can be set at naught as void, we are of the considered view that the award, which culminated into a decree, cannot be declared as void, beyond the period of limitation. Even taking it for granted that the award passed by the Lok Adalath is voidable, in view of the judicial pronouncements on reasonable time, laches, delay, defects and equity, the appellant has not made out a case for interference, with the judgment of the learned single Judge in W.P. (C) No.3025 of 2019 dated 12.12.2019.

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Though the appellant has contended that he was not fully informed of the future complications, and that the compromise was under a mistake of fact, about the actual position of the ailment due to the injuries, it is the

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contra contention of the respondent Insurance Company that the component of future medical expenses was also considered at the time of compromise, leading to an award.

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Considering the entire facts and circumstances, we find no illegality or irregularity in the view taken by the learned single Judge in the impugned judgment. As rightly held by the writ court, the compromise arrived at between the parties can be interfered by a court only if there is any vitiating element. In the instant case, giving due consideration to the facts and the law declared by the Hon'ble Apex Court, we are of the view that interference is not warranted. Hence, appeal is devoid of merits and, therefore, dismissed.

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sd/-

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S. MANIKUMAR CHIEF JUSTICE

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sd/SHAJI P. CHALY JUDGE

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jes & krj

Prasobh B. v. New India Assurance Company Ltd.

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Prasobh B. v. New India Assurance Company Ltd.

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