Prafulla Kumar Roy v. Dhirendra Nath Biswas — 1974 DIGILAW 151 (CAL)

JUDGMENT Bhattacharya J: This First Miscellaneous Appeal has been filed by Prafulla Kumar Roy against the dismissal of his claim under section 110-A of the Motor Vehicles Act, 1939, by the Motor Accident Claims Tribunal at Krishnagar, Nadia. Along with this appeal an application under Article 227 of the Constitution has been filed, in the alternative. The contesting parties are the owner of the offending vehicle, the driver of the same and the insurer. 2. The matter has come up before this court in the following circumstances :- The claimant filed an application before the Claims Tribunal on 29-7-63 for compensation for the lass of his income and efficiency and also for other damages due to the injuries inflicted on his person by a Motor Vehicle, driven negligently find rashly on 13-5-63. The owner of the Motor Vehicle, a 'Tempo', the driver and the insurer were made opposite parties. On the objection filed by the opposite parties the claimant submitted a form giving particulars as required under the rules framed under the Motor Vehicles Act and prayed that the same may be treated as a part of the original application as if filed along with the initial application. The opposite parties took objection to the claimant's prayer and the matter was heard by Mr. J. C. Chakraborty, District Judge, Nadia, presiding over the Claims Tribunal on 11-7-66. The learned Judge considered the facts and allowed the dated submission of the prescribed form by way of amendment of the original petition for claims treating the said form as a part of the petition filed on 29-7-63. Subsequently, however, the opposite party No. 1 filed on 7-7-67 a petition before Mr. D. C. Chakraborty, the successor-in-office of Mr. J. C. Chakraborty for hearing of a preliminary issue on the point of limitation of the claim on the ground that the claim petition was time barred. The matter was heard on 31-7-67 and Mr. D.C. Chakraborty found that the prescribed form was not filed within 60 days from the date of the accident and the claim was thus barred by limitation. He, therefore, dismissed the claim of the claimant. Against that order the instant appeal has been preferred. 3. Mr. Mrinmoy Bagchi learned Advocate has appeared on behalf of the appellant and Mr. Nirmal Chandra Choudhury for the opposite party respondent No. 1. Mr. Premangshu Chatterjee appears for opposite party-respondent No.2 and Mr. He, therefore, dismissed the claim of the claimant. Against that order the instant appeal has been preferred. 3. Mr. Mrinmoy Bagchi learned Advocate has appeared on behalf of the appellant and Mr. Nirmal Chandra Choudhury for the opposite party respondent No. 1. Mr. Premangshu Chatterjee appears for opposite party-respondent No.2 and Mr. Ashoke Kumar Sen Gupta is the learned Advocate for opposite party-respondent No.3. 4. Mr. Choudhury raised one preliminary objection regarding the maintainability of the appeal. His contention is that the instant appeal is not maintainable because there has been no award by the Claims Tribunal. His argument is that when the claim of the claimant was dismissed and there was no order as to making payment towards compensation, there was no award. Substantially, the argument of Mr. Choudhury is that if there be no compensation allowed by the Tribunal, there is no award. Mr. Bagchi has, however, opposed this contention and placed several rulings of some of the High Courts, but no such decision of our High Court could be cited on the exact paint raised by Mr. Choudhury. Admittedly, in the Motor Vehicles Act the word "award" has not been defined. Of course, in some other Acts, for example, in the Industrial Disputes Act, the word 'award' has been defined in section 2 (b) where it has been stated that award may be described as an interim or final determination of an Industrial dispute or any question relating thereto. However, when we do not find any definition in the Motor Vehicles Act, we should be guided by the general and dictionary meaning of the word 'award'. 'Award', according to Webster Seventh New Collegiate Dictionary means a judgment or final decision amongst other meanings. J n the Oxford Dictionary the word, 'award' means 'judicial sentence; thing awarded'. In Osborn's The Concise Law Dictionary we find that the word 'award' means the finding or decision of an arbitrator upon submissions in an arbitration'. Now in Oxford Dictionary the word 'arbiter' means Arbitrator or a Judge. In Soule's dictionary of English synonyms (Bantam Deak Edition 1966) we get the synonyms of the word 'award' as the judgment, decree, adjudication, determination, decision etc. According to the dictionary meaning, the word 'award' is a judgment, a decision or a determination of a dispute by a person authorised to make such decision, judgment etc. In Soule's dictionary of English synonyms (Bantam Deak Edition 1966) we get the synonyms of the word 'award' as the judgment, decree, adjudication, determination, decision etc. According to the dictionary meaning, the word 'award' is a judgment, a decision or a determination of a dispute by a person authorised to make such decision, judgment etc. In this connexion, we may look into the case of (1) Dickins v. Jarvis reported in 5 Barnewall and Cresswell. K. B. 528 = 8 Downing and Ryland. K. B. 285 wherein it can be seen that where an award was that 'nothing was due to the plaintiff' it should be considered as intending that he had no right to recover in the action referred. Clearly, even when there is no order for making any payment in favour of the plaintiff or any party, the decision on the point in question must be deemed to be an award. Mr. Choudhury has referred us to Sec. 110B of the Motor Vehicles Act and according to him the definition or description of the word 'award' may be gathered there, Section 110B of the Act says that on receipt of an application for compensation made under Section 110A, the Claims Tribunal should give the parties an opportunity of being heard and hold an enquiry, and in this connection it has been stated that the Tribunal may make an award determining the amount of compensation. From a reading of the entire Section it will appear that in case when any order or award is passed allowing any compensation, the Tribunal is to specify the person or the persons to whom compensation shall be paid and should also specify the amount. Therefore, according to that section in case any compensation is allowed, the Tribunal is to specify certain things. That has been made clear. But in case no compensation is allowed, there is no question of any specification about the persons or the amount in question. We do not think that in Sec. 110B there is any indication as to the definition of the award referred to in the Act. To appreciate the meaning of 'award' we will consider certain decisions referred to before us from the Bar. As we have already indicated on the point raised, there is no specific decision of this court available by the learned Advocates of the parties. To appreciate the meaning of 'award' we will consider certain decisions referred to before us from the Bar. As we have already indicated on the point raised, there is no specific decision of this court available by the learned Advocates of the parties. Of the cases referred to let us first consider the case of (2) B. Gobindarajulu Chetty v. M. L. A. Gobindaraja Mudaliar and others, reported in AIR 1966 Mad. 332 . This is a bench decision of the Madras High Court. There a similar question as to the meaning of the word 'award' came up and the Bench held as follows :- "In our opinion, the expression 'award' in S. 110-D must be understood as the decision of the Claims Tribunal whether a total dismissal of the claim or the determination of a particular amount of compensation. S. 110-B merely provides as to how the Claims Tribunal should conduct the enquiry and what its decision should contain in case the decision involves a determination of the amount of compeDsation payable." 5. The next case cited in the cause of P. S. Vajravelu Mudaliar v. T. M. Bhogreswara Mudaliar and others reported in AIR 1967 Madras 403. This is a decision of a single Judge. The same question arose here and it was held that where an application for compensation is dismissed, the appeal lies from the order of dismissal if the claim is for more than Rs. 2000/-. In the case of (3) Miss Zarin Rustomji Munsui v. Shantabhai and ors. reported in AIR 1969 Gujarat 233 we find that the Claims Tribunal refused to hold any enquiry under section 110A of the Motor Vehicles Act on the ground that it had no territorial jurisdiction, and, therefore, the case was dismissed for want of jurisdiction. In that case it was held that it was not an award. The reasons is not far to find out. In that case the Tribunal had admittedly no territorial jurisdiction and there was no occasion for the Tribunal to go into the merits of the case. Therefore, the application was not considered on merits. We have already indicated that the award should be a decision upon a dispute and when the Tribunal was not competent to consider the dispute, certainly the refusal to consider the claim on merit cannot be an award. Therefore, the application was not considered on merits. We have already indicated that the award should be a decision upon a dispute and when the Tribunal was not competent to consider the dispute, certainly the refusal to consider the claim on merit cannot be an award. That case of the Gujarat High Court is, hence quite distinguishable. From the case of (4) Dr. Omprakash Mishra v. National Fire and General Insurance company Ltd., and Ors. reported in AIR 1962, Madhya Pradesh 19, we get that there was a composite claim before the Tribunal. One part of the claim was in respect of the damage of the car but the Tribunal held that regarding that claim the Act did not confer jurisdiction upon the Tribunal. It was not a case of territorial jurisdiction but a jurisdiction given by the Act as to consider the claim for damage of the car was in dispute. When the appeal came up before the High Court the question arose whether the appeal was competent against that claim. It was held by the High Court as follows: "In our view, the appeal must be held to be competent because the effect of the order clearly is that to the extent of damages claimed for damage to the car, the Claims Tribunal has definitely refused to go into the question and, therefore, so far as the Tribunal is concerned, the order passed amounts to that the damages in these proceedings could not be awarded to the appellants. At any rate, the order of the Claims Tribunal has the effect of doing away with the award in this respect altogether". 6. On a consideration of decisions referred to before us it must be held that the said decisions lend support to our view that if the Tribunal rejects the claim for compensation as in this case that amounts to an award. It will appear further that the amount of compensation claimed under the appeal is also more than Rs. 2000/-. We hold that the appeal is maintainable under section 110-D of the Motor Vehicles Act and sub-section (2) thereof relied on by Mr. Choudhury is not applicable according to his interpretation. 7. Now, let us come to the submission of Mr. Bagchi challenging the order of the Tribunal passed on 31-7-67. It has been first urged by Mr. 2000/-. We hold that the appeal is maintainable under section 110-D of the Motor Vehicles Act and sub-section (2) thereof relied on by Mr. Choudhury is not applicable according to his interpretation. 7. Now, let us come to the submission of Mr. Bagchi challenging the order of the Tribunal passed on 31-7-67. It has been first urged by Mr. Bagchi that the order complained of is bad as it is hit by the principle of res judicata because the self-same question about limitation was considered by his predecessor-in-office Mr. J. C. Chakraborty and an order was passed by him on 11-7-66. It appears from the order dated 11-7-66 that upon an application the claimant's prayer for treating the form supplied beyond 6 months' time form the date of the incident as a part of the original application by way of amendment, was allowed. It would appear that the question of limitation was raised in that application which was filed by way of amendment. The learned Judge in spite of being conscious of the delay in filing the said form accepted the same for ends of justice and it is palpable that he was satisfied that there was sufficient reason for not filing the said form at the time of submitting the initial application within time. The same question about limitation because of the delayed filing of the form, was considered by Mr. D. C. Chakraborty, the successor-in-office of Mr. J. C. Chakraborty and he virtually set aside the previous order of Mr. J. C. Chakraborty passed on 11-7-66 by saying that the claim of the claimant was barred by limitation as the form was filed beyond 60 days of the date of the accident. It has further been• held as there was no application for condonation of delay in filing the said form, there could be no question of condoning the delay and the Tribunal had no jurisdiction to condone the same. Lastly, it has been held by Mr. D. C. Chakraborty that there can be no question of amendment of the original application in the ab3ence of any provision for amendment of the petition for claim. From a reading of the order passed on 31-7-67 it is clear that the absence of any written application for condonation of delay weighed much with the Tribunal Mr. Choudhury supported the order complained of in the same line. From a reading of the order passed on 31-7-67 it is clear that the absence of any written application for condonation of delay weighed much with the Tribunal Mr. Choudhury supported the order complained of in the same line. With regard to the first point urged by Mr. Bagchi it appears to us that when in the previous order Mr. J. C. Chakraborty allowed the amendment by accepting the form though filed late, the successor-in-office, Mr. D. C. Chakraborty acted illegally and without jurisdiction to set that order at naught by holding that the claim was barred by limitation. Virtually speaking, the successor set aside the order of his predecessor as if sitting in appeal during the same proceedings and this was highly illegal. We find quite substantial force in the argument of Mr. Bagchi on this point. 8. It has been next urged by Mr. Bagchi that when the amendment of the original application was allowed by Mr. J. C. Chakraborty by accepting the prescribed form duly filled in beyond time, the learned succeeding Judge had no jurisdiction to call that order in question. Mr. Choudury however contended that in a proceeding under the Motor Vehicles Act, the rules do not permit any amendment of the application for claim. His contention is that according to the rules unless the prescribed form is submitted before the Claims Tribunal there can be no legal proceeding for a claim under the Act and if that form is filled in and filed beyond time, that is not maintainable. In this connection Mr. Choudhury has referred to rule 221 of the Motor Accident Claim, Tribunal Rules which says that every application for payment of compensation made under s. 110-A shall be made in form A appended to these rules and shall be accompanied by the fee prescribed therefor in rule 240. Rule 238 says that certain provisions of the Code of Civil Procedure shall, as far as possible, be applied in all the proceedings before the Tribunal. Of course in the Rules and Orders mentioned in rule 238 we do not find any Rule of Order VI of the Code of Civil Procedure regarding amendment. Rule 238 says that certain provisions of the Code of Civil Procedure shall, as far as possible, be applied in all the proceedings before the Tribunal. Of course in the Rules and Orders mentioned in rule 238 we do not find any Rule of Order VI of the Code of Civil Procedure regarding amendment. We have also been referred to section 110-A of the Act itself Sub-section (2) of Section 110 A says that such an application shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred and that the said application shall be in such a form and shall contain particulars as may be prescribed. Mr. Choudhury relies upon this sub-section. (2) to argue that the word "shall" indicates that the filing of the application for compensation in prescribed form is mandatory and if no such form was filed within time, no relief can be granted to the claimant petitioner. We have also looked into form A referred to in Rule 221. We find that there are several columns in the form which require supply of some particulars required by the Tribunal for decision. But it is curious to note that we do not find any appropriate column in which the claimant may describe the relevant facts and circumstances leading to the accident as also several other facts and circumstances necessary to prove claims and to determine the amount of compensation. In our view, although the form is helpful to the Tribunal, we cannot say that the same is exhaustive for the purpose of laying the claim before the Tribunal by giving proper description of the facts and circumstances. Sub-section (3) of Section 110-A says that no application for compensation under this section shall be entertained unless it is made within sixty days of the occurrence of the accident. But there is a proviso thereto which says that the Claims Tribunal may entertain the application after the expiry of the said period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. 9. But there is a proviso thereto which says that the Claims Tribunal may entertain the application after the expiry of the said period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. 9. From the reading of section 110 A on the whole, it is clear that the Tribunal is to entertain an application for claim if preferred within 60 days of the date of the accident, but if it is made beyond a period of 60 days time, the Tribunal is also at liberty to entertain that application if it is satisfied that there is sufficient reason for not filing the application within time. Therefore, the subjective as well as judicial satisfaction of the Tribunal is there for entertaining the application for claim beyond time. In that case of judicial and subjective satisfaction, the higher court, on very rate occasion will interfere. In the instant case as we have noted an initial application was filed by the claimant within 60 days of the accident in the form of a plaint. Subsequently, the opposite parties filed objections to the claim sating that the application was not according to the prescribed rules. After those objections the claimant filed a prescribed form duly filled in and prayed in writing before the Tribunal that the same may be treated as a part of the original application. The Tribunal on hearing the parties allowed the amendment in the manner as aforesaid. Mr. Choudhury's grievance is that the Tribunal had no jurisdiction to allow any petition for amendment. No doubt, in the rules there is no provision of the Code of Civil Procedure about the amendment referred to in rule 238, I have asked Mr. Choudhury whether there is any provision in the rules for taking evidence of the parties according to the Indian Evidence Act. Mr. Choudhury frankly concedes that there is no such provision in the rules although Tribunal follows the Evidence Act in claims proceedings. The question is whether the Tribunal acted illegally or without jurisdiction causing any prejudice to any of the parties by allowing the amendment as prayed for by the claimant. Now the provisions made in the Code of Civil Procedure are all tested and accepted principles of procedure to be followed by Civil Court in coming to a proper decision. The question is whether the Tribunal acted illegally or without jurisdiction causing any prejudice to any of the parties by allowing the amendment as prayed for by the claimant. Now the provisions made in the Code of Civil Procedure are all tested and accepted principles of procedure to be followed by Civil Court in coming to a proper decision. So is the case with the Indian Evidence Act. The Tribunal in the instance case we believe, did not act beyond any jurisdiction. Rather, for the ends of justice the Tribunal acted rightly by passing an order for amendment, treating the form filed subsequently as a part of the original application after considering the delay made by the claimant in the matter of filing the same. The Tribunal rejected the plea of delay set up by the opposite parties. The question is whether the amendment is necessary for the ends of justice. We hold that the Tribunal can certainly pass orders for amendment of the application for proper adjudication of the claims and for doing substantial justice to the parties and for that purpose, the Tribunal will do no wrong in following the accepted principles underlying the provisions of the Code of Civil Procedure. In the instant case we agree with Mr. J. C. Chakraborty that there was sufficient cause for allowing the amendment prayed for by the claimant. Following the principles laid down in the case of Dinabandhu Saha v. Jadumani Mangaraj, reported in AIR 1954 SC 411 . it must be held that "sufficient cause" as mentioned in the proviso to Section 110-A should be liberally construed for doing substantial justice, if no negligence or inaction or want of bonafides is there on the part of the petitioner and when as in the instant case, in the original application all the necessary details were given by the claimant, even more than those required in the prescribed form and when soon after the raising of the objection by the opposite party the claimant immediately filed a properly constituted prescribed form duly filed in with all the particulars and details and When the Tribunal on good ground accepted the same and treated the same as part of the original application, we find that the provision of section 110-A has been properly complied with. This is too technical an objection and may be over looked. This is too technical an objection and may be over looked. In this case there is no negligence or inaction or want of bonafides on the part of the claimant. In this connection we have been referred to (5) Seethamma & Ors. v. Benedict D'Sa and others reported in AIR 1967 Mysore 11 wherein the prescribed form was characterised as insufficient and poor substitute for the plaint. Apart from this consideration there is another aspect. If any particulars required by law are wanting in the application for relief the party himself may furnish the particulars or the Tribunal may suo moto call for the particulars to be supplied for ends of justice. Formal or procedural defect which is not substantial in nature nor barred expressly by law is curable. This principle-is applicable in this case. The amendment of the application is not barred by law and it was allowed for coming to a just decision. 10. With regard to the question of condonation of delay the grievance of Mr. Choudhury supporting the finding of Mr. D. C. Chakraborty is that there was no specific application for condonation of delay in the matter of acceptance of the prescribed form which was filed beyond time and there cannot be any scope for saving the limitation in the instant case. Of course Mr. Choudhury referred us to section 5 of the Indian Limitation Act. In the instant case when the limitation is prescribed in the Motor Vehicles Act we do not place any importance on section 5 of the Limitation Act at all. In the section 5 of the Limitation Act it has been stated that if there has been any question of limitation either for admission or otherwise the applicant has got to satisfy the Court as to the sufficiency why the appeal or the application was not filed in time. When the appellant, or the applicant has failed to file his matter within the time prescribed by law, he has to come up with another application under section 5 of the Limitation Act and the applicant has to satisfy the court in that case by making submission specifically before the court. The prayer for condonation must come from the applicant himself. The prayer for condonation must come from the applicant himself. But the proviso to section 110-A as already mentioned before states as follows :- "Provided that the Claims Tribunal may entertain the application after the expiry of the said period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time". This indicates that even without being asked for by the claimant if at the time of filing of the application, the Tribunal is satisfied that there was sufficient cause for the delay which prevented the applicant from filing his cause, the Tribunal can suo motu condone the delay and entertain the cause. In this view of the matter it is not essential on the part of the claimant to file an application for condonation of delay and satisfy the Tribunal by making out a specific case before it in that behalf. Our attention has been drawn to the case of Ramashray v. Tarabati, AIR 1968 Patna 367 decided by a Single Bench of tile Patna High Court in which R.K. Prasad, J. says :- "Under proviso to sub-section (3) of Section 110-A of the Act in my opinion, there is no obligation on the applicant to make an application asking for condonation of the delay. The making of an application for condonation of the limitation in filing the application under section 110 A(1) is not condition precedent to the exercise of the power of condonation by the Claims Tribunal under the proviso to Section 110 A(3). The Tribunal can suo moto, of its own accord after being satisfied condone the delay. This is our view also. In the instant case, however, as we have already indicated earlier, after the objection of the opposite parties, the claimant quite diligently and without any unreasonable delay submitted a prescribed form which was duly accepted by the Tribunal. Therefore, there can be no doubt whatsoever that even if we hold that the initial application was not in order, the subsequent acceptance of the form, though beyond time, on application shows that the application for claim in prescribed form, has been duly entertained by the Tribunal after condonation of delay. We cannot agree with Mr. Choudhury or the Tribunal which passed the order on 31-7-67 that without any application Mr. D. C. Chakraborty had no jurisdiction to condone the delay or allow the amendment. We cannot agree with Mr. Choudhury or the Tribunal which passed the order on 31-7-67 that without any application Mr. D. C. Chakraborty had no jurisdiction to condone the delay or allow the amendment. We think that when the amendment was allowed it is manifest that delay was condoned. We agree with Mr. Bagchi that the finding of the Tribunal arrived at on 31-7-67 in this respect was illegal. 11. In view of our findings above we hold that the impugned order dated 31-7-67 passed by Mr. D.C. Chakraborty was not only illegal and without jurisdiction but caused miscarriage of justice and the said order is liable to be set aside. The appeal must be allowed. 12. With regard to the application under Article 227 of the Constitution of India, Mr. Bagchi does not press the same as the appeal is found competent. We are, therefore, reluctant to pass any order on the application which is to be treated as disposed of. 13. In the result, the appeal is allowed with costs, The order of the Tribunal dated 31-7-67 is hereby set aside and the matter is sent down to the Tribunal below for determining the claim of the claimant according to law. It appears that due to the action taken by the opposite parties, the matter is being delayed unnecessarily. However, for the ends of justice, we direct the Tribunal below to see that the matter be disposed of as quickly as possible. Let the records be sent down without delay. 14. We assess hearing fees at three Gold Mohurs payable by each of the respondents to the appellant. Sen Gupta. J. I agree.