HAR SWAROOP GAUTAM Vs. ORIENTAL INSURANCE CO LTD

JUDGEMENT

(1.) BY way of this application moved under Section 5 of the Limitation act, 1908 read with Section 151 of Code of Civil Procedure, 1908, the appellant seeks condonation of delay of 443 days in filing the present appeal against the award of the Motor Accident Claims Tribunal dated 22. 2. 2005.

(2.) THE main ground urged by the appellant is that he was unaware of the pronouncement of the award in Suit No. 490/04 (old No. 23/97) made by the motor Accident Claims Tribunal on 22. 2. 2005, and the reason given for the same is that the appellant had appointed Sh. S. S. Sharma, Advocate to pursue his matter on his behalf and the learned Advocate had assured the appellant that the case was of civil nature, therefore, the appellant need not come on each and every date of hearing and whenever his appearance would be required, he would be called upon by the Advocate. It was submitted by the learned counsel for the appellant that the knowledge of the fact that the final award dated 22. 2. 2005 had been pronounced by the learned MACT could be gained only in July 2006 when he came to know about the recovery proceedings on receipt of notice from the office of the Tehsildar. The counsel further urged that this is not a created story as a complaint has also been made to the President of Delhi Bar Council in this regard. The counsel further submitted that the said Advocate, Sh. S. S. Sharma was engaged by the appellant in 2004 and was given power of attorney in case No. 490/2004 (old No. 23/97 ). The said counsel did not inform the appellant of the outcome of the said case and on the contrary wrongly informed that the case was still pending. The counsel submitted that the delay of 443 days in preferring the present appeal was due to the unprofessional conduct of the advocate Sh. S. S. Sharma and not the appellant, therefore, the delay should be condoned. The counsel maintained that the present appeal as well as application for condonation of delay has been made bonafidely by the appellant as soon as he gained knowledge of the pronouncement of the said award dated 22. 2. 2005 in July 2006 on receiving notice in recovery proceedings, whereafter he immediately applied for certified copy of the award and other connected documents and also approached the concerned Licensing Authority, District Agra, U. P. and also obtained the necessary verification report about the driver having a valid licence. It was contended by the counsel that observation regarding breach of conditions of policy by the Tribunal has been made without any material being placed on record in this regard.

(3.) THE counsel for the appellant has relied on the following judgments in support of his contentions:-1]. Krishna Bai and Ors. Vs. B. S. Desai and Ors. , 1981 ACJ 263 (Kant.) (DB)2]. Gursharan Singh Sandhu Vs. State of Haryana and Ors. , 1985 ACJ 641 (P and H)3]. Brestu Ram Vs. Anant Ram and Ors. , 1990 ACJ 333 (HP)4]. Vindo Gurudas Raikar Vs. National Insurance Co. Ltd. and Ors. , 1991 ACJ 1060 (SC)5]. Manjit Singh Vs. Dr. Suresh Dadra and Anr. , 1996 ACJ 19 (Pand H)6]. Dhannalal Vs. D. P. Vijayvargiya and Ors. , 1996 ACJ 1013 (SC)7]. Bhagyamma and Ors. Vs. Sandeep Crane and Trailer Server and Anr. , 2001 ACJ 12 (SC)8]. Commissioner of Customs Vs. Candid Enterprises, (2002) 9 SCC 764 9]. Branch Manager, LIC of India and Anr. Vs. Ankita and Anr. , 2007 ACJ 2008" (MP)Per contra, Ms. Neerja Sachdeva, counsel for the respondent refuted the said contentions of the counsel for the appellant and stated that the appellant has concocted a story to seek condonation of delay and the appeal is hopelessly time barred and is liable to be dismissed. It was submitted by the counsel that the appellant intentionally did not appear before MACT and was proceeded ex-parte. However, the driver of the offending vehicle remained present throughout the proceedings and even the appellant appeared in the Court and adduced his evidence after the evidence of the answering respondent was over as would be evident from the perusal of the award, which fact would clearly show that the appellant was aware of various stages of the court proceedings and that is why he was present at the stage of evidence. The counsel urged that the appellant has not come to the Court with clean hands and his conduct before the tribunal was totally negligent as would be manifest from the perusal of the award, therefore, the present application is not bona fide and devoid of any merits. It was maintained by the counsel that the respondent insurance company had proved the breach of terms and conditions of the policy on the part of the appellant, therefore, recovery rights were granted by the tribunal to the insurer and thus no infirmity can be found in the award.