- (1.) Heard learned counsel for applicants-appellants and perused the record.
(2.) This appeal under Section 173 of Motor Vehicles Act, 1988 has been filed after expiry of period of limitation with a delay of one year and 275 days.
(3.) Appeal has been preferred by owner and driver both and explanation is that written statement was filed through counsel but thereafter counsel did not pursue matter properly. There is nothing to shown that any complaint was made against counsel to Bar Council or any action for professional misconduct was taken. Paras 4 to 16 of affidavit accompanying delay condonation application filed under Section 5 of Limitation Act, 1963 (hereinafter referred to as "Act, 1963") read as under: "4.That owner/ driver appellant appeared before the learned tribunal and filed his written statement and denied the alleged accident and further stated therein that at the time alleged accident, Tata Magic No. UP 92T/0634 of the appellants was insured with respondent no. 3 I.C.I.C.I. Lombard General Insurance Company Limited and further stated therein i.e. permit, fitness certificate and other related documents were valid and effective. 5.There there is no dispute that at the time of alleged accident Vehicle of theappellant No. 1 was insured with the respondent no. 3 I.C.I.C.I. Lombard General Insurance Company Limited. 6.That on 16.01.2016 the learned tribunal has partly allowed Rs. 5,10,000/-+ 7% interest per annum from the date of filing the claim petition till the actual payment against owner / driver of offending Tata Magic No. UP 92T-0634 respectively jointly and severally, however respondent no. 13 I.C.I.C.I. Lombard General Insurance Company Limited, being the insurer of the said offending Vehicle to pay the amount of compensation within 45 days, with liberty to recover the same from the owner/ driver/ appellants. 7.That respondent no. 3 I.C.I.C.I. Lombard General Insurance Company Limited has deposited the entire awarded amount of compensation before the learned tribunal on 14.03.2016 as amount of Rs. 6,33,336/-. 8.That on 20.05.2016 the respondent no. 3 I.C.I.C.I. Lombard General Insurance Company Limited filed execution application before learned tribunal and learned tribunal has issued recovery certificate against the appellants. For kind perusal of this Hon'ble Court a true copy of execution application is being annexed herewith and marked as Annexure No. 1 to this affidavit. 9.That on 11.01.2018 Collection Amin knocked the door of the appellants and told him the Insurance Company has filed recovery of Rs. 6,33,336/- against you before learned tribunal and learned tribunal has directed to deposit the entire award. 10.That the deponent is semi-illiterate person and is residing in rural area District Jhansi. 11.That the lower court counsel's of the deponent and appellant no. 1 was not informed about the judgment and filing the written statement, lower court counsel's was assured that every date before the learned tribunal is not necessary to be appeared and when will be extreme urgency he will be informed and as such he could not be contacted to his lower court counsel. 12.That due to mistake of the lower court counsel's he could not be contacted to his counsel. 13.That on 12.01.2018 the deponent contacted to his local courts counsel came to know that the learned tribunal has awarded Rs. 5,10,000/-+7% interest as amount of compensation against the appellants jointly and severally, However respondent no. 3 I.C.I.C.I. Lombard General Insurance Company Limited is directed to pay the aforesaid amount of compensation within a period of 45 days from the date of judgment with liberty to recover the same from the owner/ driver / appellants. 14.That on 12.01.2018 the deponent came to know that counsel of the deponent has not filed all the related documents at the time of filing his written statement and the learned tribunal has fixed the liability against the appellant. 15.That on 18.01.2018 the deponent came Allahabad and contracted to Sri Ram Singh Advocate and handed over all the related documents except formal order. 16.That counsel of the deponent immediately prepared the aforesaid appeal and is being filed without any further delay.";