RAM SAHAI v. RABIA BEGUM — 1968 DIGILAW 193 (DEL)

HARDAYAL HARDY ( 1 ) APPEAL against an award made by the "tribunal constituted under the Motor Vehicles Act, 1939 whereby a sum of Rs. 9000. 00 was awarded to Mrs. Rabia Begum as compensation for the death other son who was killed as a result of an accident on account of rash and negligent driving of a motor truck driven by one Ram Sahai who was impleaded as respondent No. 1 before the Tribunal and Messrs Vanguard Insurance Company Limited with whom, the truck was insured, was admitted to regular hearing on 2-3-19 64 by a Division Bench of the High Court of Punjab at Delhi. ( 2 ) MRS. Rabia Begum died on 7-1-1968. Her legal representatives were however not brought on record within the time prescribed by law. On 15-7-1968 an application was filed by Mr. G. R. Chopra who had previously entered appearance on behalf of the respondent Mrs. Rabia Begum that the sole respondent having died and her legal representatives not having been brought on record the appeal had abated and should therefore be dismissed with costs. This application was numbered as C. M. 852-J2 of 1968. As the application purported to have been filed by a counsel whose authority had apparently come to an end with the death of his client when the case came up before Andley, J. , the learned counsel realised that there was no proper application before the Court. He, therefore, undertook to file Vakalatnama on behalf of the legal representatives of Mrs. Rabia Begum whereupon the learned Judge directed notices to issue to both the applicants, namely, Ram Sahai and Messrs Vanguard Insurance Company Limited and also to Mr. H. S. Dhir, counsel for the appellants, for 3-10-1968. On that day Mr. Dhir appeared for the appellants and asked for time to apply for setting aside the abatement. The application was therefore ordered to be listed for 6-11-1968 for hearing along with the application for setting aside the abatement, if any. ( 3 ) ON 19-10-1968 the appellants filed the application C. M. 1303-J2 of 1968 praying for condonation of delay and for setting aside the abatement and to bring on record the legal representatives of the deceased respondent Mrs. Rabia Begum. ( 3 ) ON 19-10-1968 the appellants filed the application C. M. 1303-J2 of 1968 praying for condonation of delay and for setting aside the abatement and to bring on record the legal representatives of the deceased respondent Mrs. Rabia Begum. A notice of this application having been issued to the legal representatives of the deceased respondent a reply was filed on their behalf objecting to the appellants prayer for condonation of delay and for setting aside the abatement. ( 4 ) MR. H. S. Dhir appearing for the appellants contends that the original application for compensation was filed before the Tribunal by Budhu and his wife Mrs. Rabia Begum. Budhu died during the pendency of the application and on 4-3-1963 a statement was made by Mr. Janki Das Aggarwal, Advocate appearing for both the applicants, that Budhu had died leaving no other heirs except Mrs. Rabia Begum who was therefore competent to pursue the application. As a result of the statement made by the counsel for the applicants, the name of Budhu was struck off from the array of applicants by an order made by the Tribunal on 4-3-1963 and Mrs. Rabia Begum who was already on record, was allowed to continue the application. In the order made by the Tribunal the entire amount of Rs. 9,000. 00 was thus awarded to Mrs. Rabia Begum. When the appeal was filed in this Court the only respondents impleaded therein were Mrs. Rabia Begum and Messrs Shiv Ram Hari Singh who were stated to be the owner of the truck that caused the accident. Mr. Dhir, therefore, submits that the appellants were misled by the statement made by the Advocate appearing for the original applicants before the Tribunal and it was mainly on that account that the appellants did not take any steps to bring the legal representatives of Mrs. Rabia Begum on record within the time allowed by law. Mr. Dhir further submits that it was only after the respondents counsel filed the application C. M. 852-J2/68 that they learnt about Mrs. Rabia Begum having been succeeded by a son and two daughters ; but since the application did not give their names and they had to make inquiries which disclosed that Budhu and his wife Mrs. Rabia Begum had left behind four children namely, Mohd. Yunus, Mohd. Rashid, Mst. Kadran and Mst. Rabia Begum having been succeeded by a son and two daughters ; but since the application did not give their names and they had to make inquiries which disclosed that Budhu and his wife Mrs. Rabia Begum had left behind four children namely, Mohd. Yunus, Mohd. Rashid, Mst. Kadran and Mst. Razia, the application though belated was filed immediately after the said information was available. Mr. Dhir also submits that the Divisional Officer of the Insurance Company (Appellant No. 2) had to undergo an operation for hernia in Madras where he had to stay till September 2, 1968 and was not allowed to move about even after he returned to Delhi as an aftermath of the operation. It was only after his return to Delhi that he caused inquiries to be made and filed the present application. ( 5 ) THE alternative submission of Mr. Dhir is that the provisions regarding abatement are not applicable to compensation applications as the provisions of Order 22 of the Code of Civil Procedure do not apply to such proceedings. ( 6 ) MISS C. M. Kohli who appears for the legal representatives of the deceased respondent contends on the other hand that the submissions made by the learned counsel for the appellants run counter to what is stated in their application. According to that application the only ground for condonation of delay is that immediately after receipt of notice of the respondents application C. M. No. 852-J2 of 1968 attempts were made to enquire about the legal representatives of the deceased which took time and that Ram Sahai appellant No. 1, was a driver who had to remain out of Delhi most of the time, while the Divisional Officer of the Company had to under-go operation for hernia in Madras where he had to stay till September 2, 1968 and was not allowed to move about. Learned counsel contends that even if the reasons put forward by the appellants are held to be correct, there is no explanation why the application could not be filed before 19. 10. 1968. According to the learned counsel, there is no explanation for the delay between 2. 9. 1968 and 19. 10. 1968. ( 7 ) RELIANCE is placed by Miss Kohli on two decisions of the Punjab High Court in Jagar and others v. Mst. 10. 1968. According to the learned counsel, there is no explanation for the delay between 2. 9. 1968 and 19. 10. 1968. ( 7 ) RELIANCE is placed by Miss Kohli on two decisions of the Punjab High Court in Jagar and others v. Mst. Natho and others Firm Dittu Ram Eyedan and others v. Om Press Co. Ltd. The first is a single Bench decision of I. D. Dua, J. (as his Lordship then was) while the second is a decision of a Full Bench of that Court. In both the cases it has been held that under Article 177 of the Limitation Act, 1908 which corresponds to Article 120 of the Limitation Act, 1963, a period of ninety days is allowed for making an application for bringing the legal representatives of the deceased to be made a party to the proceedings and the terminus quo is the date of the death of the deceased respondent. Even when the appeal abates the appellant is given another chance of approaching the Court for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the appeal, the Court shall set aside the abatement on such terms as to costs or otherwise as it thinks fit. Under Article 171 of the Limitation Act, 1908 which corresponds to Article 121 of the Limitation Act, 1963 a period of sixty days is fixed for making such an application and the terminus quo for this purpose is the date of the abatement. Theknowledge of the appellant about the death of the respondent does not figure anywhere in these two Articles and therefore prima facie the date of the knowledge of the death would not be relevant for considering the question of limitation. ( 8 ) THE Full Bench judgment also lays down that ignorance of death is per se not a sufficient cause and the applicant must show that ignorance was not attributable to negligence or want of care. Counsel submits that the facts stated in the appellants application do not make out a sufficient cause. On the other hand they show lack of diligence and care. In any case, the appellants had notice of the death of Mrs. Rabia Begum on 3. 10. 1968 and yet no application was filed till 19. 10. Counsel submits that the facts stated in the appellants application do not make out a sufficient cause. On the other hand they show lack of diligence and care. In any case, the appellants had notice of the death of Mrs. Rabia Begum on 3. 10. 1968 and yet no application was filed till 19. 10. 1968 and nothing has been stated either in the application or in the supporting affidavit: explaining the cause for each days delay. ( 9 ) THERE is substance in the argument of the learned counsel for the respondents. Even if it is held in favour of the appellants that they had been misled by the statement made by the counsel for the original petitioners before the Tribunal on 4. 3. 1963 that Budhu had no other heirs except Mrs. Rabia Begum who was already on the record, in the application filed by them for condonation of delay this has not been taken as one of the grounds. Mr. Dhir, however, submits that this fact is patent on the record of the case and he should therefore be allowed to urge it as a ground for condonation of delay under section 5 of the Limitation Act even though it has not been mentioned in the application as under the law even an oral application can be entertained for condonation of delay under section 5 of the Limitation Act. I may be prepared to agree with Mr. Dhir and therefore allow him to urge that ground but even that would not take the appellants out of the woods. On their own showing they had knowledge about Mrs. Rabia Begum having been succeeded by certain heirs sometime before 3. 10. 1968. The Divisional Officer of the appellants was also back from Madras on 2. 9. 1968. It was, therefore, incumbent upon the appellants to file a proper affidavit stating the date on which they received information about the names and addresses of the legal representatives of the deceased. The application on the other hand states only that they have been able to find out the names of the legal representatives of the deceased with great difficulty. When and how they got this information has not been stated even in the supporting affidavit filed by them. The application on the other hand states only that they have been able to find out the names of the legal representatives of the deceased with great difficulty. When and how they got this information has not been stated even in the supporting affidavit filed by them. According to the application the entire emphasis is on the fact that the application for setting aside the abatement and for bringing the legal representatives of the deceased has been filed within sixty days of the knowledge of the death of the respondent. This, as already stated, is of no help to the appellants. ( 10 ) I, therefore, hold that the appellants have failed to establish sufficient cause for not bringing the legal representatives of the deceased on record within the time prescribed by law and are therefore not entitled to condonation of delay under section 5 of the Limitation Act. ( 11 ) MR. Dhir is, however, entitled to succeed on the alternative submission made by him. It cannot be disputed that the provisions of Order 22 of the Code of Civil Procedure have not been expressly made applicable to proceedings arising out of claims for compensation under section 110-A of the Motor Vehicles Act, 1939. This implies that the provisions relating to abatement contained therein have also no application to such proceedings. The underlying principle is that proceedings of this kind are not brought by or against a person in his personal capacity but are brought by or against him as a representative of a class of persons and even if the representative or representatives who has or have so brought the suit or against whom a suit is so brought, happen to die, then the other person or persons whom the deceased represented would still be interested in the litigation in the very nature of things and cannot but be held constructively to be parties to the proceedings. In this type of case the question of abatement cannot therefore properly arise. According to the respondents themselves their right to compensation arises because although the original application was filed by their parents Budhu and Mrs. Rabia Begum the proceedings were actually brought by them as their representatives and for their benefit as well as for the benefit of the persons making the application. According to the respondents themselves their right to compensation arises because although the original application was filed by their parents Budhu and Mrs. Rabia Begum the proceedings were actually brought by them as their representatives and for their benefit as well as for the benefit of the persons making the application. The respondents were ostensibly not before the Court but they were along with the original applicants real beneficiaries of the result of litigation. The award made in favour of Mrs. Rabia Begum was not merely for her benefit alone but was also for the benefit of the present respondents. In such circumstances, so long as there were some legal heirs who were entitled to the benefit of compensation resulting from the death of Mohd Tayer there could be no question of abatement of the appeal. I find support for the view taken by me from a Bench decision of Madhya Pradesh High Court in Chuharmal Issardas and others v. Haji Wali Mohammed and others. ( 12 ) THE application is therefore allowed. The order of abatement is set aside and the legal representatives of Mrs. Rabia Begum named in the application are substituted as respondents in place of Mrs. Rabia Begum. The order is conditional upon the appellants paying Rs. 100. 00 as costs to the substituted respondents. Costs to be paid within one week from today.