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Judgment
J.R. Midha, J.
CM No. 20069/2010
Claimants/Respondents No. 1 to 7 have filed this application for condonation of delay in filing the cross-objections.
The accident dated 29th October, 1999 resulted in the death of Brahm Pal. The deceased was aged 35 years at the time of the accident and was survived by his mother, widow and five minor children who filed the claim petition before the Claims Tribunal. The deceased was working with Himachal Pradesh Tourism Development Corporation earning Rs. 5,431/- per month. The learned Tribunal added 50% towards the future prospects, deducted 1/3rd towards the personal expenses of the deceased and applied the multiplier of 16 to compute the loss of dependency at Rs. 19,00,800/-. Rs. 15,000/- has been awarded for loss of consortium and Rs. 10,000/- for funeral expenses. The total compensation awarded is Rs. 19,25,800/.
The Appellant has challenged the award of the Claims Tribunal mainly on two grounds inter alia that the driver of the offending vehicle was not holding a valid driving licence at the time of the accident; and that there is error of calculation in para 8 of the award as the Claims Tribunal has taken the annual loss of dependency of the deceased as Rs. 1,18,800/- instead of Rs. 64,800/-.
During the course of hearing on 24 th September, 2010 and 29 th October, 2010, claimants/Respondents No. 1 to 7 admitted that the Claims Tribunal has erred in calculating the loss of dependency of the deceased at Rs. 1,18,800/-. However, they submitted that the annual loss of dependency be taken as Rs. 78,206.40 on the ground that the personal expenses of the deceased be deducted to the tune of 1/5 th instead of 1/3rd in view of the judgment of the Hon''ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . It was further submitted that the compensation be awarded for loss of estate and loss of love and affection and rate of interest be enhanced from 7% per annum to 9% per annum whereupon learned Counsel for the Appellant raised an objection that the contentions of the claimants should not be considered as the claimants have not filed any cross-objections. The objection of the Appellant is contrary to Order XLI Rule 33 of the CPC which empowers the appellate court to pass such order which ought to have been passed by the lower court. In that view of the matter, the contentions of the claimants/Respondents No. 1 to 7 can be considered under Order XLI Rule 33 of the Code of Civil Procedure. However, in view of the objection taken by the Appellant, the claimants/Respondents have filed the cross-objections.
Claimants/Respondents No. 1 to 7 are seeking award of compensation in terms of judgment of the Hon''ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation (supra) by deduction of 1/3rd towards the personal expenses instead of 1/5th out of the income of the deceased. It is further urged that the Claims Tribunal has not awarded any compensation towards loss of estate and loss of love and affection. The claimants have also urged that the rate of interest awarded to the claimants be enhanced from 7% per annum to 9% per annum.
There is a delay of 682 days in filing the cross-objections in respect of which the claimants have sought the condonation of delay. The Appellant has strongly opposed the condonation of delay.
The law with respect to the condonation of delay is well settled. In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , the Hon''ble Supreme Court was posed with an expression ''sufficient cause''. Realising a touch of elasticity in the phrase and feeling the necessity of applying law in a meaningful manner to subserve the ends of justice, the Hon''ble Supreme Court summed up the principles as under:
To condone, or not to condone, is not the only question. Whether or not to apply the same standard in applying the "sufficient cause" test to all the litigants regardless of their personality in the said context is another.
The legislature has conferred the power to condone delay by enacting Section 5 (Any appeal or any application, other than an application under any of the provisions of Order XXI of the CPC, 1908, may be admitted after the prescribed period if the Appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period) of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
In G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, the Hon''ble Supreme Court observed as under:
...There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression ''sufficient cause'' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.
In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, , the Hon''ble Supreme Court held as under:
NOW a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of Sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.
In Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, , the Hon''ble Supreme Court held as under:
...RULES of procedure are intended to be a handmaid to the administration of justice A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure....
In Kalipada Das alias Mahanto and Others Vs. Bimal Krishna Sen Gupta (Dead) by Lrs., , the Hon''ble Supreme Court held as under:
a procedural step which facilitates hearing of the appeal, cannot impede access to justice.
In Bhag Singh v. Major Daljit Singh 1987 SCC (Supp) (1) 685, reiterating the law laid down earlier by the Supreme Court in Union of India (UOI) Vs. Ram Charan and Others, and approving the view taken in Hanuman Dass Vs. Pirthvi Nath and Others, the Hon''ble Supreme Court held as under:
"The Court while considering an application u/s 5 of the Limitation Act will consider the facts and circumstances not for taking too strict and pedantic stand which will cause injustice but to consider it from the point of taking a view which will advance the cause of justice."
In Shakuntala Devi Jain Vs. Kuntal Kumari and Others, , the Hon''ble Supreme Court reiterated the statement from Krishna v. Chathappan ILR 1890 Mad 269 which is as under:
...Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words Rs. sufficient cause'' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the Appellant.
In N. Balakrishnan Vs. M. Krishnamurthy, the Hon''ble Supreme Court held as under:
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
...The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.... Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly....
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" u/s 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice....
It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation....
In Union of India (UOI) Vs. Ram Charan and Others, , the Hon''ble Supreme Court observed as under:
...The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the Appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the Appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance....
...It is true that it is no duty of the Appellant to make regular enquiries from time to time about the health or existing of the opposite party, ....
In Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, the Hon''ble Supreme Court observed as under:
Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.
In Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRs. and Others, , the Hon''ble Supreme Court held as under:
The principles applicable in considering applications for setting aside abatement may thus be summarized as follows:
(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words Rs. sufficient cause'' in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the Appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased Respondent when the appeal abates, it will not punish an Appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer''s lapses more leniently than applications relating to litigant''s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.
(v) Want of Rs. diligence'' or Rs. inaction'' can be attributed to an Appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the Appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an Appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting Respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.
In Gopaldas Agrawal and Another Vs. Phoolchand Garg and Others, , the Madhya Pradesh High Court (Gwalior Bench) held as under:
In our system of administering justice there is rarely a legal battle fought without the aid of lawyers. The litigant places his fate along with papers in the hands of a lawyer, placing implicit reliance on advice received. Though ignorance of law is never a permissible defence which may be raised by a litigant, that factor cannot be lost sight of while determining the questions of bona fides and mala fides. Litigants do not know the niceties of law. Invariably the Courts have been holding litigants protected by legal advice given by lawyers even if found to be mistaken, unless, of course, there be a culpable negligence, deliberate inaction or lack of bona fides imputable to the Advocate. Counsel''s default constitutes sufficient cause for a litigant bona fide acting on it, has been the consistent view of this Court. A diligent prosecution of proceedings before a wrong forum in the absence of mala fides has been accepted as a valid gound for exclusion of time by Their Lordships of the Supreme Court in Mata Din Vs. A. Narayanan, and by this Court in Rewaram v. State of M.P. MPWN 1986 II 224.
In Ravindra Jain Vs. Natraj Albums Industries (Pvt.) Ltd., , the Delhi High Court held as under:
It is well settled that while dealing with an application u/s 5 of the Limitation Act, a liberal and not pedantic approach has to be adopted. A practical view of the events has to be taken.
In Biniyabai Vs. Sikandar Khan, having reviewed several decisions of the Supreme Court, the High Court of Madhya Pradesh held as under:
The law is thus clear. While dealing with applications seeking condensation of delay u/s 5 of Limitation Act or for setting aside of abatement under Rule 9 of Order 22 Code of Civil Procedure, the approach has to be liberal and judicious guided by the paramount consideration of not depriving a litigant ordinarily of adjudication of rights on merits. Hypertechnical, too strict, and pedantic approach as may cause injustice has to be avoided. Ignorance of law is no defense in law but the realities of life,'' the Courts of law cannot afford to overlook....
Applying the aforesaid principles of law to the facts of this case, this Court is of the view that the delay in filing the cross-objections is liable to be condoned and the cross-objections be heard along with the main appeal for the following reasons:
(i) Claimants/Respondents No. 1 to 7 are seeking to raise the legal grounds for computation of compensation, namely, the deduction of 1/5th towards the personal expenses of the deceased instead of 1/3rd as per the judgment of the Hon''ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation (supra), award of compensation towards loss of estate and loss of love and affection and enhancement of the rate of interest from 7% per annum to 9% per annum.
(ii) There is merit in the aforesaid grounds raised by claimants/Respondents No. 1 to 7. The primary function of the court is to advance substantial justice which in this case would be served by condoning the delay.
(iii) The delay in filing the cross-objections has been attributed to the counsel. The explanation does not smack off any malafide nor it is put forth as a part of any dilatory strategy. In fact the claimants do not stand to benefit by lodging the cross-objections late. The claimants are the legal representatives of Late Brahm Pal who died in the road accident on 29th October, 1999. The claimants are the old mother, widow and five children who were minor at the time of the accident.
(iv) Refusing to condone the delay would result in a meritorious grounds being thrown out and cause of justice would be defeated.
(v) The appeal is a part heard matter and the cross-objections can be heard along with the main appeal without causing any delay in the disposal of the delay.
(vi) Claimants/Respondents No. 1 to 7 are not seeking enhancement of the award amount. The Claims Tribunal has awarded Rs. 19,25,800/- which is liable to be reduced on the ground that the Claims Tribunal has wrongly taken the loss of annual dependency of the deceased at Rs. 1,18,800 /-. The claimants submit that the Claims Tribunal has erred in taking the loss of dependency at 1/3rd instead of 1/5th as per the judgment of the Hon''ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation (supra); Claims Tribunal has not awarded compensation towards loss of estate and loss of love and affection and has awarded lower rate of interest. By taking these grounds into consideration, the claimants would not be entitled to compensation of more than Rs. 12,96,302.40/-. As such, the award of the Claims Tribunal is liable to be reduced. Since the claimants are not seeking enhancement of the award amount, the aforesaid errors in the award of the Claims Tribunal can be corrected even if the cross-objections had not been filed.
(vii) The cross-objections appear to have been filed by claimants/Respondents No. 1 to 7 by way of abundant caution in view of the objection raised by the Appellant. However, the cross-objections were in fact not necessary as the points raised by the claimants could be heard without filing the cross-objections under Order XLI Rule 33 of the Code of Civil Procedure.
For all the aforesaid reasons, the application is allowed and the delay in filing of the cross-objections is condoned.
The application stands disposed of.
CM No. 20068/2010
The cross-objections are taken on record and shall be heard along with the appeal.
MAC.APP. No. 264/2008
This a part heard matter.
List for remaining arguments on 18th February, 2011.