Shri Mahipal Singh & Anr. v. Union of India

1. There is a delay of 436 days in filing of the appeal and one of the reasons is that the earlier Advocate Sh. S.P. Singh who had the file had expired. No doubt, the death of the Advocate is after sometime after passing the judgment however that would be one relevant circumstance for condonation of delay. Also, the substantial amount of time taken causing delay is on account of death of the Advocate because the impugned judgment is dated 30.9.2011 and the Advocate died in June, 2012.

2. Supreme Court in the judgment in the case of N. Balakrishnan 2014:DHC:3167 Vs. M. Krishnamurthy AIR 1998 SC 3222 has held that Courts should be liberal in condoning the delay if there is no want of good faith or gross negligence. In the present case, appellant would have no benefit from unnecessary delay in filing of the appeal and therefore for the reasons stated in the application, delay of 436 days in filing the appeal is condoned subject to payment of costs of Rs.2,500/- to the respondent. C.M. stands disposed of. + FAO No.147/2013

3. Learned counsel for the appellant argues that one of the main reasons for dismissal of the claim petition is that the appellant did not summon for giving evidence one Sh. Laxmi Kant who was an eye witness and who had given his statement to the police as per document Ex.AW1/10. Counsel for the appellant prays that one opportunity be given to the appellant to summon Sh. Laxmi Kant for giving his evidence and also for the respondent to cross-examine him thereafter.

4. Considering that death has taken place and statutory compensation is provided for death under the Railway Claims Tribunal Act, 1987, and also considering that the statement of Sh. Laxmi Kant is almost contemporaneous to the happening of the incident and death of Sh. Yashveer because the statement has been made by Sh. Laxmi Kant on 6.3.2010 itself when the untoward incident happened, I consider the prayer made by the appellant as reasonable.

5. In view of the above, the impugned judgment dated 13.9.2011 is set aside and the appellant is granted an opportunity to lead evidence only of Sh. Laxmi Kant before the Railway Claims Tribunal. The matter is therefore remanded to the Railway Claims Tribunal for a fresh decision after the appellant summons and gets the evidence of Mr. Laxmi Kant recorded.

6. Parties to appear before the Railway Claims Tribunal on 27th August, 2014 and the Railway Claims Tribunal will now decide the case afresh after evidence is led of Sh. Laxmi Kant.

7. Appeal is disposed of with the aforesaid observations, leaving the parties to bear their own costs. JULY 09, 2014 VALMIKI J. MEHTA, J. Ne