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Judgment
HIGH COURT OF JAMMU AND KASHMIR
This application for Condonation of delay of 472 days has been filed in the above titled appeal. Learned counsel for the applicant/appellant has stated in this application that the award dated 30.09.2016 was passed in ex-parte and they acquired the knowledge only after receiving notice of the same in execution petition. Thereafter they have to verify the record and documents and after ascertaining the record, it transpired that the deceased against whom the award was passed was actually the owner and insured of the accidental vehicle, as such, this fact was concealed, while filing the claim petition under Section 166 of the Motor Vehicles Act. Learned counsel for the applicant further submitted that on receiving the knowledge, they immediately filed an application for procuring all the documents and application for setting aside the ex-arte award was filed on 23.02.2017 at Reasi. The learned Motor Accident Claims Tribunal below after considering the application dismissed the same on 17.02.2018. That immediately after the receipt of the information by the same counsel, the copies were procured and sent to the legal office at Mumbai and after deliberating upon the legal issue involved in the matter and after discussing with the counsel, decided to file an appeal against the said award and then drafted the appeal and the same was filed after a delay of 472 days.
Learned counsel for the respondents has filed the objections to the application for Condonation of delay in filing the appeal and stated that the applicant has not shown any sufficient cause for condoning the delay. They had been served through registered post but no one appeared on its behalf and the court below, as such, could not be shown any indulgence at this stage. It was further submitted that one, Mr. Shalinder Bhardwaj, Advocate had appeared on behalf of the Insurance Company and filed an application for setting aside the ex-parte proceedings, which was allowed by the learned Tribunal subject to payment of costs but subsequently the needful was not done. Thus, the court below has proceeded in ex-parte and passed an award. Learned counsel further submitted that the application for setting aside the award was also dismissed and this petition having been filed after the delay of 472 days, thus, does not show any ground for indulgence by this Court and, therefore, Condonation application should be dismissed at the very outset.
Heard learned counsel for the parties.
Learned counsel for the respondents has placed on record the judgment of the Apex Court in AIR 1987 SC 1353, which states that the power to condone the delay is to do substantial justice to the parties by disposing of the matter on merits.
The expression "sufficient cause" which is 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 the Court has been making a justifiably liberal approach in the matters, instituted to the Court. Thus, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred.
In view of the submissions and the law laid down and the fact that the appellant-Insurance Company had moved an application for setting aside the ex-parte award, which was dismissed by the court well within their right to approach the court for filing an appeal on the grounds that the deceased himself being the registered owner of the offending vehicle. The claimants/respondents could not file the claim under Section 166 of the Motor Vehicles Act as the owner does not fall within the definition of third party. The appeal is required to be heard on merits, therefore, this application for Condonation of delay is allowed. Delay of 472 days is condoned subject to payment of Rs.10,000/- as costs to be paid to the other side within a period of six weeks from the date of this order.
Registry is directed to diarize theappeal and list the same for consideration after three weeks.
IA No. 01/2018 :
The applicant has filed an application for stay of the execution of the award passed by the Motor Accident Claims Tribunal, Reasi. For showing indulgence in this IA, the applicant has placed on record judgment "New India Assurance Co. Ltd. v. Srikakulapu Ayyababu and others", by virtue of which the court may exercise the discretion of granting conditional or unconditional stay even when the Condonation application is filed, as such, this application is disposed of by providing that the execution of the impugned award dated 30.09.2016 in File
No. 04/Claim titled "Sunita Kumari & ors. v. Dhanveer Kumar Dogra & anr." shall stay, provided the entire awarded amount along with interest till date is deposited in this Court within six weeks hereafter. The amount deposited shall be kept in a FDR till further orders.