CONCORD OF INDIA INSURANCE CO. L1D. versus NIRMALA DEVI AND ORS.

CONCORD OF INDIA INSURANCE CO. L1D.

NIRMALA DEVI AND ORS. April 16, 1979

[V. R. KRISHNA IYER AND R. S. PATHAK, JJ.]

Negligence of Counsel which misleads litigant into delayed pursuit of his.-remedy-Propriety ·and reasonableness of cofnpanies and other persons re-lying upon legal opinion in the niatter of co1nputation of liniitation--Lirni-· tation Act, 1963 (Act XXXVl) Section 5.

Need for no fault tortious liability by State-LeKal rights, literacy in the· case of automobile, accidents and the processual 1nodalities which secure· redressal of grievances, explained.

, doctor and his brother riding motor cycle were hit by jeep driver· and both \\'ere killed in November 1971, but the Motor Accident claims Tri·· bunal delivered judgment on 5·9· 1976 five years later awarding sums of Rs. 80,000/- and Rs. 73,500 ;- to the two sets of claimants. The appeal in this case had to be filed on or before 19-1-77 but was. actually filed 30 days later ·with an application for condonation under S. 5 of the Limitation Act on the ground of Counsel's mistake in the calculation-of the period of limitation. The High Court dismissed the appeal and the~ application.

Dismissing the special leave petitions, the Court

HELD : company relies on its Legal Adviser and the Manager's. expertise is in company management and not in law. There is no particular reason why when company or other person retains lawyer to advise it or him on legal affairs reliance should not be placed on such counse1. Of course, if there is gross delay too patent even for layman or if there is i.tL comprehensible indifference the shield of legal opinion may still be .vulnerable. If legal Adviser's opinions are to be subjected by company managers to. further legal scrutiny of their own, an impossible situation may arise. Inde_ed Government, large litigant in this country, may find itself in difficulty •. [697E·F. 698 F-Gl

This does not automatically secure visa for the petitioner into this Court under Art. 136.. There musf be manifest injustice or gross misappre-ciation or perversity in factual findings. [698H]

State of Kerala v. Krishna Kurup Madhava Kurup, A.I.R. 1971 Keralai 211; approved.

State of West Bengal v. Howrah Z..funicipal Corporation, AIR 1972 SC.-749; referred to.

Obser;ations

1~ The jurispfudence of compensation for· motor accidentS IDus't develop· in. the· direction, of no-fault liability and the determination of the quantum !DU$\ be liberal, not niggardly since the law values life and limb in 'a 'freet

country in generous scales. Social justice, the command of the Constitution is being violated by the State itself by neglecting road repairs, ignoring deadly over-loads and contesting liability after nationalising the bulk of bus transport and the whole of general insurMtce business. [696C·Dl

2. Medieval roads \\'ith treacherous dangers and total disrepair, explosive increase of heavy vehicles often terribly overloaded and without cautionary signals, reckless drivers crazy with speed and tipsy with spirituous potions, non-enforcement of traffic regulations_ designed for safety but offering oppor-tunities for systematised corruption and little else and, as cumulative effect, mounting high\vay accidents, demand new dimension to the law of torts through no fault liability and processual celerity and simplicity in compensa-tion claims caseo. [696B-C]3. If only no-fault liability, automatic reporting by the police who investi-gate the accident in statutory pro-forma signed by the claimants and forward-ed to the tribunal as in Tamil Nadu and decentralised empowerment of such tribunals in every district coupled with informal procedures and liberation from court-fees and the sophisticated rules of evidence and burden of proof \'\it:re introduced-easy and inexpensive, if the State has the will to help the poor who mostly die in such accidents-law's. delays in this compassionate jurisdiction can be banished. Social justice in action is the measure of the State's constitutional sensitivity. [696F-G]

CIVIL Al'PELLATE JURISDICTION : Special Leave Petition (Civil) Nos. 5228 and 5286 of 1977.

From the Judgment and Order dated 8-8-1977 of the Pnnjab and Haryana High Court in F.A.O. No. 81 and 82 of 1977.

P. P. Malhotra and R. N. Dikshit for the Petitioner.

S. K. Gambhir for the Respondent.

The Order of the Court was delivered by

KRISHNA IYER, J. An explosive escalation of automobile acci· dents, accounting for more deaths than the most deadly diseases, has become lethal phenomenon on Indian Roads everywhere. The jural impact of this tragic development on our I~gJslatures, courts and law enforcing agencies is insufficient, with the result that the poor, who are, by and large, the casualty iu most of these cases, suffer losses of life or limb and are deprived of expeditious legal remedies in the shape of reasonably quantified compensation promptly paid-and this, even after compulsory motor insurance and nationa-lisatkm of insurance business. The facts of this special leave peti-ti~ns;. which we dismiss by this order, raise two serious issues which o:mstrain us to make speaking order. The first deals with legal

rights, literacy in the case of automobile accidents and the processual modalities which secure redressal of grievances. The second relates to the consequences of negligence of counsel which misleads liti-gant into delayed pursuit of his remedy.

Medieval roads with treacherous dangers and total disrepair, explosive increase of heavy vehicles often terribly overloaded and without cautionary signals, reckless drivers crazy with speed and tipsy with spirituous potions, non-enforcement of traffic regulations designed for safety but offering opportunities for systematised cor-ruption and little else and, as cumulative effect, mounting highway accidents demand new dimension to the law of torts through no fault liability and processual celerity and simplicity in compensation claims cases. Social justice, the command of the Constitution is being violated by the State itself by neglecting road repairs, ignoring deadly overloads and contesting liability after nationalising the bulk of bus transport and the whole of general insurance business. The jurisprudence of compensation for motor accidents must develop in the direction of no-fault liability and the determination of the quan-tum must be liberal, not niggardly since the law values life and limb in free country in generous scales. In the present case, doctor and his brother riding motor cycle were hit, by jeep driver and both were killed. The fatal event occurred in November 1971 but the Motor Accident Claims Tribunal delivered judgment five years later awarding sums of Rs. 80,000/- and Rs. 73,500/- to the two sets of claimants.

The delay of five years in such cases is terrible commentary on the judicial process. If only no-fault liability, automatic reporting by the police who investigate the accident in statutory pro-forma signed by the claimants and forward to the tribunal as in Tamil Nadu and decentralised empowerment of such tribunals in every district coupled with informal procedures and liberation from court-fees and the sophisticated rules of evidence and burden of proof were intro-duced-easy and inexpensive if the State has the will to help the poor who mostly die in such accidents-law's delays in this compassionate jurisdiction can be banished. Social justice in action is the measure of the State's constitutional sensitivity. Anyway, we have made these observation hopefully to help focus the attention of the Union and the States.

The nationalised insurance company appealed to the High Court against the award. We have no doubt that the finding on both the

culpability and the quantum as rendered by the trial court are correct. But the High Court dismissed the appeal on the ground of delay, dismissing the application of the petitioner for condonation under S. 5 of the Limitation Act.

The Accident Claims Tribunal pronounced its award on Septem· ber, 15, 1976, after making the necessary computations and deduc· tions. The appeal had to be filed on or before January 19, 1977 but was actually filed 30 days later. Counsel for the petitioner is stated to have made the mistake in the calculation of the period of limitation. He had intimated the parties accordingly with the result that the petitioner was misled into instituting appeal late. The High Court took the view that the lawyer's ignorance about the law was no ground for condonation of delay. Reliance was placed on some decisions of the Punjab High Court and th_ere was reference also to ruling of the Supreme Court in AIR 1972 SC 7 49 ('). The con· clusion was couched in these words :

"The Assistant Divisional Manager of the Company· appellant is not an illiterate or so ignorant person who could not calculate the period of limitation. Such like appeals are filed by such companies daily. The facts of this case clearly show, as observed earlier, that the mistake is not bonafide and the appellant has failed to show sufficient cause to condone the delay."

We are not able to agre.i;. with this reasoning. company relies on its Legal Adviser and the Manager's expertise is in company management and not in law. There is no particular reason why when company or other person retains lawyer to advise it or him on legal affairs reliance should not be placed on such counsel. Of course, if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable. The correct legal position has been explained with reference to the Supreme Court decision in judgment of one of us in AIR 1971 Ker. 211 :

"The law is settled that mistake of counsel may in cer-tain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always sufficient ground. It is always question whether the mistake was bonafide or was merely device to cover an ulterior purpose such as !aches

(1) State of West Bengal v. Howrah:Municipa/ Corporation.

6-330SCI/79

on the part of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on wrong reading of the situation." "The High Court took the view that Mr. Raizada being afi Advocate of 34 years' standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under Section 39 (1) of the Punjab Courts Act and therefore, his advice to file the appeal before the District Court would not come to the rescue of the appel-lant under Section 5 of the Limitation Act. The Supreme Court upset this approach."

"I am of the view that legal advice given by the mem· bers of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are some-times wrong. An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must of course, see whether in such cases there is any taint of mala fides · or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufli· cient cause when an application under Section 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers."

We haV'e clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal '!-opinion in the matter of computation of limitation since it is pro· blem which may arise frequently. If Legal Adviser's opinions are to be subj•ected by company managers to further legal scrutiny of their own, an impossible situation may arise. Indeed Government, large litigant in this country, may find itself in difficulty. That is the reason why. we have chosen to explain at this length the applica-tion of S. 5 vis'a-vis counsel's mistake. This does not automatically secure visa for the petitioner into this Court under Article 136. There must be manifest injustice or gross misappreciation or perversity in factual findings. We have

examined the merits of the matter to the extent available on the record and have heard counsel for the petitioner. He has hardly convinced us that the merits of the case call for any intervention at all. In this view we are constrained to dismiss the Special Leave Petitions now that we have expressed ourselves or both the points dealt with above.

Petitions dismissed.