Decided on May 11,2010



- (1.) This is an appeal under section 173 of the Motor Vehicles Act, 1988, seeking to assail the award dated 16.2.2009 passed by the Member, Motor Accidents Claims Tribunal, East and North Sikkim at Gangtok, in M.A.C.T. Case No. 14 of 2006, filed by the respondent No. 1, for death compensation of his wife who died in a motor accident involving a taxi being a Tata Spacio bearing registration No. WB 73-A 0669 while travelling from Gangtok to New Jalpaiguri on 26.7.2004. Before going into the merits of the appeal, it is relevant to state that appellant, the Branch Manager, Oriental Insurance Co. Ltd., had filed the memo of appeal along with an application under section 5 of the Limitation Act, 1963, for condoning a delay of 146 days in filing the appeal. Since this was seriously contested by the respondent No. 1, the claimant, it is felt essential to deal with that at the threshold. The grounds raised by the appellant for condoning the delay have been set out in paras 3, 4, 5 and 6 of the application which are reproduced below: (3) That the impugned judgment and award was passed by the learned Member, M.A.C.T., East and North Sikkim at Gangtok on 16.2.2009. Due to communication gap between the advocate of the appellant and the officials of the appellant, the certified copy of the judgment and award was made available only in the last week of May 2009. (4) That the copy of the impugned judgment was then forwarded to Divisional Manager of the appellant and thereafter to the Regional Manager for considering the same for preferring appeal before this Hon'ble court. The Regional Manager sought legal opinion with respect to the said case and after being advised to prefer an appeal has again forwarded the file to the Branch Manager, Gangtok Branch through the Divisional Manager stationed at Siliguri. The movement of the file from Gangtok to Kolkata and seeking legal opinion consumed some time. (5) That after calculation, the last date for filing appeal before this Hon'ble court was 19.5.2009. However, due to the movement of the concerned file from the office of the Branch Manager, Gangtok to that of Divisional Manager stationed at Siliguri and eventually the office of the Regional Manager and also seeking legal advice, the instant appeal could not be filed on or before 19.5.2009. There is delay of 146 days in filing the instant appeal. (6) That the delay caused in filing the present appeal is not willful but due to the compulsory requirement of seeking concurrence from higher authorities. It has been stated that the delay was caused due to circumstances beyond the control of the appellant and as the aforesaid grounds constituted 'sufficient cause' that prevented the appellant from preferring the appeal before the expiry of the period prescribed for doing so, the appellant was entitled to condonation of the delay.
(2.) When the matter came up for hearing on 23.3.2010 before this court, except for the appellant and the learned advocates for the owner, respondent No. 2, neither the respondent No. 1 nor his counsel appeared. Since no steps had been taken for seeking adjournment on behalf of the claimant-respondent No. 1, the matter was heard in his absence and delay in filing the appeal was condoned ex parte fixing 20.4.2010 for hearing on admission of the appeal. Later, on 19.4.2010, an application under section 151 of the Code of Civil Procedure, 1908, was filed on behalf of the respondent No. 1 for setting aside the ex parte order dated 23.3.2010, condoning the delay on the ground that non-appearance of the respondent No. 1 and/or his counsel was due to the fault of the learned advocate who inadvertently failed to make entry of the date in his diary resulting in their absence in court on 23.3.2010. The application was duly supported by an affidavit affirming statements contained in the application. Considering the facts and circumstances contained therein, this court directed the application to be put up along with M.A.C. Appeal No. 6 of 2009 to be considered when the appeal would be heard granting liberty to the parties to raise the issue of delay.
(3.) The application for condonation of delay filed on behalf of appellant had been objected to by the claimant-respondent No. 1 by filing a written objection, the crux of which was that the Motor Vehicles Act, 1988, being a special Act is a complete Code by itself and section 173 thereof provides for the entire procedure with regard to the filing of an appeal and matters related thereto including the question of delay in doing so and that powers are vested in the court in entertaining a belated appeal on being satisfied that the appellant was prevented by 'sufficient cause'. It was further urged in the objection that the aforesaid provision being complete by itself, an application under section 5 of the Limitation Act would not be permissible as being excluded by necessary implication and, therefore, the application under section 5 of the Limitation Act filed on behalf of the appellant was not maintainable. The grounds raised for condoning the delay contained in the application have been denied categorically by the respondent No. 1 which have been summarised in para 10 of the written objection, the relevant portion of which is as follows: (10)...The appellant-petitioner has suppressed the fact that the certified copy of the judgment and award which was passed by the learned Tribunal on 16.2.2008 was applied for by appellant-petitioner only on 30.3.2009, i.e., after a delay of 42 days that is almost half the period of 90 days within which the appeal ought to have been filed which goes to prove that the appellant-petitioner was callous and negligent. Further, the so-called communication gap between the officials of the appellant and the advocate of the appellant has not been sufficiently and fully explained and is incomprehensible from the petition in absence of more detailed information as to what is meant by communication gap between learned advocate of the appellant and officials of the appellant.;

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