Delhi High Court
V.K. Thukral And Ors. vs Lalit And Ors. on 18 August, 2005
Equivalent citations: IV(2005)ACC9, 2006ACJ2440, 123(2005)DLT203, 2005(84)DRJ146
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. By way of the present application, appellants pray that delay in filing the appeal be condoned.
2. Appellant No. 1 is the sole proprietor of appellant No. 2. A Maruti Car bearing No. DL-4C 1136 was purchased by appellant No. 1 in the name of his sole proprietory firm. The motor vehicle hit a cyclist on GT Karnal Road near Kokli Turning Point. Unfortunately, the cyclist died. Accident took place on 13.4.99 at about 3.30 P.M. Wife, children, father and mother of the deceased filed a claim petition under the M.V. Act, 1988. They claimed compensation against the appellants and the New India Assurance Company Limited, the insurance company with whom appellants had got the motor vehicle insured.
3. At the end of the trial, learned MACT held that the death of the deceased was caused due to the rash and negligent manner in which appellant No. 1 was driving the motor vehicle. Compensation in sum of Rs. 4,33,800/- was assessed.
4. On the issue of the liability of the insurance company, learned MACT held that the driving license of the first appellant was fake and accordingly, learned MACT held that the insurance company would be permitted to recover the compensation amount from the appellants herein.
5. Award was pronounced on 7.2.2004. Appeal has been preferred on 1.7.2005. After excluding the time spent on obtaining the certified copy and 90 days period available for filing the appeal, there is a delay of 416 days in filing the appeal.
6. Appellants pray that delay in filing the appeal be condoned. Sufficient cause stated is that counsel engaged by the appellants stopped appearing in the proceedings on 7.7.2003. On said date, appellants were proceeded ex-parte. Accordingly, appellants were not aware that the award was pronounced on 7.2.2004. Appellants received a notice of execution when the insurance company, after making payments to the claimant proceeded to recover the same from the appellants in terms of the award. Appellants state that they engaged a counsel who filed objections in the execution proceedings. The objections were dismissed on 25.2.2005. It is pleaded in the application that after objections were dismissed, appellants took opinion from another counsel who advised that appeal should be filed. Thereafter, certified copy of the award was applied for on 30.5.2005. It was obtained on 1.6.2005. Appeal was accordingly prepared and filed.
7. Learned counsel for the appellants, relied upon AIR 1987 SC 1352 Naubat Ram Sharma v. Additional District Judge II, Moradabad and Ors. to urge that counsel’s fault should not visit the client with penal consequences. Counsel also relied upon Collector, Land Acquisition, Anantnag v. Katiji and Ors. to urge that sufficient cause should be construed liberally. Reliance was also placed on the decisions reported as Chhabi Kulavi and Anr. v. Ganesh Chandra Mondal; JT 2000 (Suppl.1) SC 209 State of Bihar v. Nilamani Jha; JT 2000 (Suppl.1) SC 211 B.T. Rai v. Ramanna Gowda and Ors.; and Rafiq and Anr. v. Munshilal and Anr. to urge that counsel’s inaction should not result in the litigant suffering.
8. It is true that in an adversial litigation, clients repose faith in their advocate and having paid the fee and given requisite instructions to their lawyer, a party would be fully justified in being confident that his lawyer would discharge his professional obligations. Therefore, where it is brought on record that a party has done everything in its power to effectively participate in a proceedings, courts should be liberal in construing sufficient cause and should lean in favor of such party. A litigant does not stand to benefit by lodging appeals at a belated stage. Whenever substantial justice and technical consideration are opposed to each other, cause of substantial justice has to be preferred. Justice oriented approach has to be taken by a court. However, this does not mean that a litigant has a free license to approach the court at it’s will.
9. At some stage of the judicial proceedings, where a litigant finds that his lawyer is not rendering the requisite professional services, it becomes the duty of the litigant to become vigilant.
10. Appellant No. 1, the sole proprietor of appellant No. 2 appears to be a habitually negligent person, having the attitude of J care less. He has suffered the award inasmuch as he produced a fake driving license. Since the driving license was his, appellant No. 1 could not even take the plea that he took all reasonable precaution and checked the driving license of the person driving the motor vehicle.
11. A glance at the facts pleaded by the appellants while seeking condensation of delay show that objections against the execution sought by the respondent No. 1 were dismissed on 25.2.2005. As per the appellants, they learnt about the ex-parte decree when notice of execution filed by the insurance company was received. Appellants may have been misled by their lawyer to file objections against the execution. But when the objections were dismissed on 25.2.2005, appellants became aware that they should either move an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte award or should file the appeal.
12. Very casually, appellants chose to apply for certified copy of the impugned award on 30.5.2005. No explanation is forthcoming on record as to why the appellants took no steps to even apply for a certified copy after 25.2.2005 till 30.5.2005. Certified copy of the impugned award was applied after 3 months of the dismissal of the objection filed by the appellants to the execution of the award sought by the insurance company.
13. Decisions relied upon are of no avail to the present appellants for the reason, at least on 25.2.2005 appellants should have woken up. Appellants chose to act at their leisure and pleasure.
14. Appellants have shown no cause, much less sufficient cause as to why the appeal was not promptly filed after 25.2.2005.
15. Appellants have failed to show sufficient cause entitling the appellants to condensation of delay. The application is accordingly dismissed.
MAC APP. Nos. 517-18/2005 Since delay in filing the appeal has not been condoned, appeal is dismissed.