Sasi K. and others v. S. Asokan and others

MACA NO. 2038 OF 2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943** **MACA NO. 2038 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 192/2003 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT/S:** 1 SASI K. AGED 52 YEARS S/O.KITTU, BINU BHAVAN, NJAKKANAL MURI, OCHIRA VILLAGE, KARUNGAPPALLY TALUK, KOLLAM DISTRICT, PIN - 690 526. 2 SANTHAMMA W/O.SASI, BINU BHAVAN, NJAKKANAL MURI, OCHIRA VILLAGE, KARUNGAPPALLY TALUK, KOLLAM DISTRICT, PIN - 690 526. 3 SMITHA D/O.SASI, BINU BHAVAN, NJAKKANAL MURI, OCHIRA VILLAGE, KARUNGAPPALLY TALUK, KOLLAM DISTRICT, PIN - 690 526. BY ADVS. JOSEPH GEORGE P.A.REJIMON ## **RESPONDENT/S:** 1 S.ASOKAN AGED 21 YEARS S/O.SUBRAMANI, SIVAGANGAMID ROAD, CHAMRAJPED, BANGLORE, KARNATAKA STATE, NOW RESIDING AT A.M.ROAD, MOKOKCHUNG, NAGALAND, PIN - 798 601. 2 RAMAKRISHNAN S/O.NADARAJAN, 10 MIDDLE STREET, MALABARAYANATHAM, VELLUR, SRIVAIKUNDAM, THUTHUKUDI DISTRICT, TAMILNADU, PIN - 628 601. MACA NO. 2038 OF 2021 2 3 THE MANAGER, NATIONAL INSURANCE COMPANY LTD. BHAVANI MAIN ROAD, SALEM, TAMIL NADU, PIN - 636 001. BY ADVS. LAL GEORGE SEBASTIAN VARGHESE(K/141/2000) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2038 OF 2021 3 ## **JUDGMENT** In the light of the order passed in C.M.Appln. No.1/2021, the appeal stands dismissed. Sd/- **C.S.DIAS, JUDGE** rkc/12.01.22 ## **C.S.DIAS, J.** ## **--------------------------------------MACA No.2038 of 2021** ## **----------------------------------------Dated this the 12[th] day of January, 2022** ## **ORDER** ## **C.M.Appln.No.1 of 2021** The application is filed to condone the delay of 3367 days in filing the appeal. 2. The 1[st] petitioner has in the affidavit filed in support of the application stated that he is an unemployed person, the 2[nd] petitioner is his wife, who is a house wife and the 3[rd] petitioner was a minor child on the date of passing of the award. They had filed the claim petition before the Tribunal, seeking compensation on account of the death of the son of the petitioners 1 and 2 and the brother of the 3[rd] petitioner, who passed away on 21.09.2002. It was only when they met the wife of a co-passenger, who traveled in the same autorikshaw that met with the accident, that they came to learn that they had filed an appeal and sought enhancement of compensation. The petitioners applied for certified copy of the judgment, which MACA NO. 2038 OF 2021 5 was received on 02.02.2021. The time period for filing the appeal was over on 27.11.2011. The petitioners belong to a family below the poverty line and they had no knowledge regarding the remedy of filing an appeal. There is no willful latches or negligence on their part. Hence, the delay may be condoned. 3. The application is opposed by the 3[rd] respondent, who has filed a detailed counter affidavit stating that there is no bonafides on the part of the petitioners in filing the appeal with a delay of 9½ years. The attempt of the petitioners is only experimental in nature. The petitioners were sleeping over their rights. There is willful latches and negligence on their part. Hence, the application may be dismissed. 4. The 1[st] petitioner has filed a reply affidavit to the counter affidavit filed by the 3[rd] respondent, interalia, stating that the deceased was only aged 19 years at the time of the accident. He was an aluminium fabricator and was the bread winner of MACA NO. 2038 OF 2021 6 the family. The 1[st] petitioner is a chronic asthma patient. He, his wife and daughter were dependents of the deceased. The petitioners are having only basic education. It was only when the 1[st] petitioner received information on 18.01.2021 that the legal representatives of a fellow passenger, who died in the same accident had filed an appeal, they decided to file the appeal. Hence, a lenient view may be taken in the matter and the application be allowed. 5. Heard; the learned counsel appearing for the petitioners and the learned counsel appearing for the 3[rd] respondent. 6. The point that arises for consideration in the application is whether the petitioners have made out sufficient cause to condone the delay of 3367 days. 7. In a recent decision, a three Judge Bench of the Hon'ble Supreme Court in **University of Delhi v. Union of India and others** [2019 KHC 7261] has held thus: - “20.xxxxxxxxxxxxxxxxxx MACA NO. 2038 OF 2021 7 Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. **In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.** xxxxxxxxxx”. ## 8. In **Pandlik Talam Patil vs Talgaou** **Medium Project** [(2008) 17 SCC 448], the Hon'ble Supreme Court has observed as follows: “17. …..The evidence on record suggests neglect of its own right for long time in preferring appeals. **The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights.”** “29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. **They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy** .” MACA NO. 2038 OF 2021 8 ## 9. Again in **Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai** [(2012) 5 SCC 157] the Hon'ble Supreme Court has held thus: “24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. **If on the other hand, the explanation given by the application is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay”** . 10. The above position has been reiterated by the Hon'ble Supreme Court in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others** [(2013) 12 SCC 649] by holding that: (i) **There is a distinction between inordinate delay and a delay of short duration of few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart,** MACA NO. 2038 OF 2021 9 **the first one warrants strict approach whereas the second calls for a liberal delineation.** (ii) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (iii) **If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.”** 11. Therefore, the law is succinctly laid down in the afore-cited precedents that while considering an application for condonation of delay, a routine explanation would not be enough in the nature of indicating sufficient cause to justify the delay which will depend on the back drop of each issue and which will have to be weighed carefully by the Courts based on the fact situation, and in the case of inordinate delay a strict approach is warranted and that “delay defeats equity”. MACA NO. 2038 OF 2021 10 12. The sheet-anchor of the petitioner in the affidavit in support of the application was that they were unaware of their remedy to file an appeal before this Court. It is trite, that ignorance of law is not an excuse. The petitioners assert that, it was only when they learnt from the legal representatives of a copassenger who died in the same accident, that they become enlightened that they have remedy of appeal. Hence, they have decided to file the appeal with a delay of 3367 days. 13. On a consideration of the rival contentions and especially taking note of the law laid down in **Esha Bhattacharjee** (supra) and the other referred decisions, I am of the firm view that the respondents' right has crystallized over the passage of a decade and it is too late in the day for the appellants to now aspire for enhancement of compensation that too with a long delay 3367 days. If the delay is condoned at this stage and the appeal is admitted, it would certainly cause substantial prejudice, hardship and injustice to the respondents. MACA NO. 2038 OF 2021 11 I hold that there is willful latches and negligence on the part of the petitioners in not filing the appeal within the prescribed time period. In the said circumstances, I am not inclined to condone the delay of 3367 days. Resultantly the application is dismissed. Sd/- **C.S.DIAS, JUDGE** rkc/12.01.22