Srinagar, December 17: In CONC no.65/2016 titled Director, Health Services, Kashmir Versus Nazir Ahmad Wani and others after hearing a bench of HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE ordered as:-
1. Award given by Motor Accident Claims Tribunal, Baramulla (for short “Tribunal), on 13th August 2014, on a Claim Petition, being MACT Claim no.19 titled Nazir Ahmad Wani and another v. State of J&K and others, is sought to be set-aside by appellant.Since aforesaid Award has not been challenged by appellant within the period of limitation provided for challenging the same and as there is delay of 505 days, appellant seeks condonation of delay in filing the Appeal on the grounds that impugned Award was passed in his absence and it was only on 17th August 2015, when it received copy of Award.It is averred that appellant was arrayed through State Motor Garages Department and summons sent had never reached office of appellant as the same had been sent to State Motor Garages, which is headed by its own Director and not by Director, Health Services. It is also contended that after 17th August 2015, appellant department time and again took up the matter with Administrative Department and that matter was considered at various levels in the Department and finally the Award was decided to be assailed, for which authorized was also given.
2. Objections have been filed by respondents 1&2, in which they insist that Appeal, along with application for condoning delay, has been filed by Director, Health Services, Kashmir, and not by State of J&K through Commissioner/Secretary and therefore, appeal as well application have not been filed by competent authority. It is averred that claim petition was filed by them before the Tribunal on 2nd November 2005, which was finally decided on 13th August 2014.It is maintained that appellant was summoned in accordance with provisions of law and the Tribunal has rendered sufficient finding with regard to non-appearance of appellant and respondent no.4 and it was only after recording adequate findings that ex parte proceedings were initiated against appellant and respondent no.4 on 2 nd June 2006. They have not taken any step for cancellation of ex parte proceedings, but remained willfully absent from the Tribunal.
3. Respondents also contend that no sufficient cause is made out by appellant in application inasmuch as applicant, notwithstanding having knowledge of passing of Award, did not come within time before this Court from the date of knowledge. It is contended that communications referred to by applicant would reveal that implementation of Award and release of compensation along with interest was sought therein. And it is only after coercive orders were passed in execution proceedings that applicant to thwart execution proceedings has come up with application for condonation of delay………By impugned Award dated 13th August 2014, the Tribunal held claimants entitled to compensation of Rs.5.20 Lacs along with interest @ 8% per annum from the date of institution of claim petition till realization. It is this Award, against which applicant has filed an Appeal with instant application for condoning delay.
4. The above facts have been made mention of to take the same into account while considering the application for condonation of delay, because it has been observed in a number of judgments that substantial justice being paramount and pivotal and the technical considerations should not be given undue and uncalled for emphasis. There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize injustice but are obliged to remove injustice.
5. It is true that courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State, but while considering the application, the court should also find out whether there is any merit in the appeal filed by the State……………….The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
The grounds taken are without any basis and there is no sufficient cause warranting condonation of delay. Even otherwise, had there been merit in the grounds challenging the Award impugned and had it been the case where merit would have become the casualty of delay, this Court may have, in order to prevent miscarriage of justice, taken a view otherwise which is warranted in the facts and circumstances of the case.If this application for condonation of delay, which does not disclose any sufficient and reasonable ground or cause, is allowed and appeal is permitted to be filed after unexplained and inordinate delay of 505 days, it would be respondents herein who will be at the receiving end.
