NATIONAL INSURANCE CO. LTD. Vs. MOHD. AKBAR THOKER

JUDGEMENT

(1.) THE deceased Abdul Rashid Thoker S/o Abdul Rehman who was a Government employee working in Animal Husbandry Department drawing a salary of Rs. 3536 and was likely to be promoted as Stock Assistant became the victim of the accident caused at Bagu Budgam on 8th of February 1999 by rash and negligent act of Tipper bearing registration No. 1382/JK04 by the driver Abdul Rashid Baba. The legal heirs of the deceased who are respondents here claimed a compensation from the owners and driver of the vehicle alongwith the insurer the appellant company. The MACT Budgam awarded compensation by his judgment and award dated 28th of May 2001 of Rs. 5,40,000 minus interim relief with 9% interest per annum from the date of institution till its final realisation and directed the appellant insurer to satisfy the claim. The appellant insurer through this application is seeking condonation of delay of 88 days caused in filling the appeal. In the application the petitioner has pleaded that Mr. Nisar Ahmad Dandroo Advocate informed the Divisional office of the appellant company at Srinagar about the passing of the judgment by his letter dated 2nd of July 2001 giving his opinion that in view of the law laid down by the Supreme Court in the case reported in AIR 2000 SC 235 the appellant should satisfy the award. Since the case was forwarded at final office at Chandigarh , therefore the Divisional office forwarded the complete file alongwith the opinion of the Advocate to the Regional office at Chandigarh for taking the decision in the matter. The Regional office at Chandigarh vide fax dated 20th of August 2001 directed the Divisional office to obtain certain information. Consequently the matter was taken up with the dealing Advocate. The dealing Advocate in turn informed the Divisional office by his letter dated 6th of September 2001 that the owner and driver caused appearance in the matter and then absented. They had been set exparte and had not filed any written statement. This information was transmitted to the Regional office at Chandigarh. The Regional office by fax dated 13th of September 2001 sought further information which was again furnished. So the decision whether to go in appeal or not was to be taken by the Regional Office and Regional office came to know that in an another case entitled New India Assurance Company Ltd. v. Asha Ram and Ors., it was held by their Lordships in the Supreme Court that law laid down in AIR 2000 SC 235 require re -consideration by a Larger Bench and the matter was placed before the Hon'ble Chief Justice of India for constituting a Larger Bench. The Apex Court held in the said judgment that as per the New Motor Vehicles Act the carriage of passengers under the goods vehicles is against the mandate of the statute as envisaged by Section 149(2) of Motor Vehicles Act and no liability can be passed to the Insurance company on being informed about the passing of the above said judgment the Regional office decided to go in appeal and accordingly directed the Divisional office at Srinagar. Mr. Kawoosa Advocate was engaged after the receipt of the files back at Srinagar Divisional office on 21st of October 2001. After preparing the appeal the application for condonation of delay was also filed with the appeal. According to the Ld. counsel for the appellant/petitioner the delay caused in filing the appeal has been due to aforesaid peculiar circumstances of the case and, therefore, constitute a sufficient cause warranting condonation of delay. On the other hand, the contention of LC for the respondents is that delay should not be condoned because the appellant/petitioner has not acted promptly and with due diligence and the matter has been delayed unnecessarily. Even if the Hon'ble Supreme Court found that decision rendered in the case reported in AIR 2000 SC 235 required re consideration, yet unless the judgment rendered in that case was changed it continue to hold the field.

(2.) THE vital question arising for determination is, can the explanation advanced by the petitioner company be taken as to constitute a 'sufficient' cause.

(3.) FOR the reasons given above the cause shown for delay in filling appeal is not found to be sufficient warranting condonation thereof. The applications of the petitioner is therefore dismissed and consequently appeal is also dismissed as the time barred alongwith the CMPs, after its registration.