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RAJKUMAR versus ROSHANDAS & ORS

High Court of Rajasthan

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RAJKUMAR v ROSHANDAS & ORS - CMA Case No. 04233 of 2004 [2007] RD-RJ 250 (11 January 2007)

S.B. CIVIL MISC. APPEAL NO.4233/2004. (DRJ)

Raj Kumar Vs. Roshan Das & Ors.

Date of Order :: 11th January 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. Sandeep Sarupariya, for the appellant. ...

This appeal by the claimant against the common award dated 02.07.2003 made by the Motor Accidents Claims

Tribunal, Rajsamand insofar it relates to Claim Case

No.381/2001 is barred by limitation by 317 days. The appellant has moved an application under Section 5 of the

Limitation Act and the respondents have been served with the notice of the said application. Having regard to the circumstances of the case, learned counsel for the appellant has been heard on the application and so also on merits of the case.

By the impugned award, the Tribunal has awarded compensation to the claimant-appellant in the sum of

Rs.62,500/- and has allowed interest @ 9% per annum from the date of filing of the claim application for the loss suffered by him due to the injuries sustained in a vehicular accident.

The Tribunal has referred to relevant documentary evidence and has found the claimant, about 27 years in age, having sustained four injuries including fracture at his right hand and having suffered 15% permanent disablement and having remained hospitalised from 20.02.2001 to 23.02.2001. The

Tribunal has allowed Rs.40,000/- towards permanent disablement and grievous injuries, Rs.9,000/- towards three simple injuries, Rs.2,000/- towards pains and sufferings,

Rs.1,800/- towards loss of income for one month, Rs.1,000/- towards hospitalisation and special diets etc., Rs.8,500/- towards medical expenses and Rs.1,200/- towards costs of litigation.

It has been urged in this appeal seeking enhancement that the Tribunal has not awarded adequate compensation towards the loss suffered by the appellant more particularly for the loss of earning capacity with reference to the opinion stated in the disablement certificate, as quoted in the memo of appeal thus:

"Pain and difficulty in working, weak grip power...... unable to do hard work and to lift weight..... difficulty in driving vehicle."

Having examined the impugned award in its totality, this Court is of opinion that the ultimate amount as allowed by the Tribunal in this case cannot be said to be grossly inadequate so as to call for interference in appeal.

With reference to the kind of disablement alleged, it is difficult to countenance the submission regarding loss of earning capacity. The observations as referred by the appellant from the disablement certificate are too general, vague and uncertain, and could hardly lead to substantiate the claim for loss of earning capacity. The Tribunal has yet allowed Rs.40,000/- with reference to the so-called disablement and has allowed reasonable amount on other scores too. Moreover, the Tribunal has proceeded to allow higher rate of interest at 9% per annum from the date of filing of the claim application. In the ultimate analysis, the award in question cannot be said to be insufficient than that of just compensation admissible in this case.

Apart from the discussion aforesaid that the appeal for enhancement is bereft of merits, this Court is of opinion that the application for condonation of substantial delay of 317 days does also not make out any sufficient cause that prevented the appellant from filing the appeal in time.

The award in question was made on 02.07.2003 and the present appeal has been filed only on 12.08.2004.

The appellant has suggested in his application that he was residing at Kelwa in Tehsil and District Rajsamand; that there are no proper communication facilities available and his physical condition was not good so as to enable him to contact his counsel regularly; that he did not get the information about making of award in time; and that he got the information of decision from his counsel whom he approached and in the month of July 2004 withdrew the award amount and then the appeal is being filed on 11.08.2004. The averments in the application are as cryptic and cursory as they could be. The appellant has suffered fracture at his right hand in the year 2001 and it is not clear as to what is sought to be conveyed by the averment `physical condition of the appellant is not good'; nor there appears any cause that prevented him from contacting his counsel; and the distance of Kelwa from

Rajsamand has also not been stated. Moreover, the appellant has stated that he did not get the information about decision in time but has chosen to avoid stating as to when at all did he receive the information. All said and done, according to the averments of the appellant, he admittedly withdrew the award amount from the Tribunal in the month of July 2004. Then there appears no reason or justification for which this appeal has been presented only on 12.08.2004. Certified copy filed along with the memo of appeal shows that the same was applied on 07.04.2004 and was received on 13.04.2004, specifically for the purpose of filing the appeal.

On an overall comprehension of the matter, this

Court is clearly of opinion that the appellant having got reasonably higher amount of compensation from the Tribunal, has tossed-up this appeal at his own leisure merely taking a chance. The conduct of the appellant does not inspire confidence.

Although a matter is preferred to be decided on merits rather than on limitation; yet, the law of limitation cannot simply be given a go-by nor it appears appropriate to condone an inordinate delay of 317 days in filing the appeal on the basis of vague, incomplete, cryptic and cursory averments and that too in a meritless appeal.

In the result, the application under Section 5

Limitation Act is rejected and the appeal is dismissed on limitation as well as on merits.

(DINESH MAHESHWARI), J. //Mohan//


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