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1993 DIGILAW 576 (RAJ)

Hanja v. Ram Kishan Ahir

1993-09-13

M.B.SHARMA

body1993
Honble SHARMA, J.—With the consent of the parties I proceed to dispose of this writ petition. (2). The petitioner Smt. Hanja is wife of Shankar Singh and other petitioners are sons and daughter of Shankar Singh who died out of use of a motor vehicle in an accident which took place on May 21, 1984. A claim petition under Section 110A of the Motor Vehicles Act, 1939 (for short, the Act) was filed by the petitioners herein in the Accidents Claims Tribunal Ajmer on October 30, 1984 within six months, the period of limitation prescribed under the Act. In the said claim petition the petitioners had arrayed Jaipur Golden Transport company as respondent as the owner of the truck No. RRG-4655. In the reply to the said claim petition filed by Jaipur Golden Transport Company, the said company came out with a case that it was not the registered owner of the vehicle and as such they were not liable to pay any amount. The petitioners thereafter made an enquiry and they are said to have inspected the record of the case in the court of the learned Magistrate where a charge-sheet has been filed and on enquiry they came to know that one Harnam Das Bhatia was the registered owner of the vehicle and New India Assurance Company was its insurer. An application was filed on behalf of the petitioners in the Motor Accidents Claims Tribunal on March 28, 1985 under Order 6 Rule 17 read with Order 1 Rule 10 CPC wherein it was prayed that it was under the bonafide mistake that in the original claim petition Jaipur Golden Transport Company was shown as the owner of the above truck. It was prayed that now Harnam Das Bhatia, the registered owner of the truck and New India Assurance Company, its insurer, may be arrayed as respondents. The application was contested on behalf of both the patties who were sought to be added and the learned Tribunal under its order dated May 16, 1985 allowed the application in part and in so far as New India Assurance Company is concerned, but dismissed the application for impleading Harnam Das Bhatia as respondent on the ground that it will amount to addition of the parties beyond the period of limitation and the claim against that party had become time barred. (3). (3). It was contended by the learned counsel for the petitioners that the learned Member of the Tribunal has committed an illegality and atleast impropriety in dismissing the application insofar as Harnam Das Bhatia is concerned as the claim petition was filed within the time prescribed under the Act and it was by a bonafide mistake that the name of the vehicle owner came to be mentioned in the original claim petition as Jaipur Golden Transport Company and the said mistake occurred due to the fact that on the body of the truck Jaipur Golden Transport Company was written. It was on enquiry made after the written statement was filed by Jaipur Golden "Transport Company that the petitioners came to know about the real owner of the vehicle. (4) A perusal of the proviso to sub-section (3) of Sec. 110A of the Act will show that power has been conferred on the Tribunal to entertain application after the expiry of the period of limitation if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. It will be seen from the application (pages 19 and 20 of the paper book) which has been filed on behalf of the petitioners before the learned Tribunal under Order 6 Rule 17 read with Order 1 Rule 10 and Section 151 CPC that the petitioners had come out with the specific case that they were not knowing and had no knowledge that Harnam Das Bhatia was the owner of the truck and it was only when the reply was filed that they came to know that Jaipur Golden Transport Company was not the owner of the truck but on enquiry it was revealed that one Harnam Das Bhatia was the owner of the vehicle and New India Assurance Company was the insurer. Learned Tribunal has itself referred to these facts in its order and has said that even Harnam Das Bhatia had admitted in the court of Magistrate that he was the owner of the vehicle and his address was Jaipur Golden Transport Company. Learned Tribunal has itself referred to these facts in its order and has said that even Harnam Das Bhatia had admitted in the court of Magistrate that he was the owner of the vehicle and his address was Jaipur Golden Transport Company. In my opinion, sufficient facts were contained in the said application and as such it was a fit case in which the learned Member of the Tribunal in exercise of his powers under the proviso to sub-section (3) of Sec. 110 A of the Act should have entertained the application even after the expiry of the period of six months as it was a case where it can be said that the petitioners were prevented by sufficient cause from making the application. That apart, even assuming that the petitioners have made an application for substitution of Jaipur Golden Transport Company by Harnam Das Bhatia and the application has been filed after the period of Six months, under the provision to sub-section (1) of Sec. 21 of the Limitation Act if the court is satisfied that the omission to include a new plaintiff or defendant was due to mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Therefore, by virtue of Section 21 (1) of the Limitation Act after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party, but the court has power under the proviso to sub-section (1) of Sec. 21 of the Limitation Act and it can order that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date, if it is satisfied that the omission to include the new plaintiff or defendant was due to mistake make in good faith. It was a fit case where the court should have ordered that the claim petition as against Harnam Das Bhatia shall be deemed to have been instituted when the original claim petition was filed, which as said earlier, was filed within the prescribed period of limitation. (5) In the case of Mohd. It was a fit case where the court should have ordered that the claim petition as against Harnam Das Bhatia shall be deemed to have been instituted when the original claim petition was filed, which as said earlier, was filed within the prescribed period of limitation. (5) In the case of Mohd. Sabir vs. Sahajibai and Others, (1), a learned Judge of the Madhya Pradesh High Court was dealing with a case where the claimants came to know of the owner from the copy of the policy filed by the insurance company and immediately thereafter they took steps to implead the owner insured. The Tribunal had found that the claimants were prevented by sufficient cause from adding the name of the owner-insured as a party in time and condoned the delay. It was held that the standard laid down in section 5 of the Limitation Act is not applicable and sufficient cause is a question of fact and not law. In the case of Basappa and another vs. K.H. Sreenivasa Reddy and Others (2), a Division Bench of the Karnataka High Court in para 20 said: "Limitation is prescribed for instituting a petition. When once the petition is instituted in time with some of the relevant parties, addition of necessary parties could be made later. Besides, under the Rules, it is the duty of the Tribunal to add and issue notices to necessary parties." In para 22 of the aforesaid case the court referred to proviso to sub-section (1) of Sec. 21 of the Limitation Act and said that under the said proviso the court has power to direct that the suit as regards newly added defendants shall be deemed to have been instituted on an earlier dated within time. (6). I am therefore of the opinion that in a claim petition under Sec. 110A of the Act the Tribunal has power to entertain the application for substitution of new party even beyond the period of limitation prescribed for the purpose if it is satisfied that the applicant was prevented by sufficient cause from making the application within time and the court has also power to order that the said newly added person shall be deemed to have been arrayed from the date the claim petition was filed. (7). (7). Consequently, I hereby allow this writ petition and set aside that part of the order of the learned Motor Accidents Claims Tribunal Ajmer dated May 16, 1985 whereby the application of the petitioners for impleading Harnam Das Bhatia as one of the respondents was dismissed. The said application of the petitioners for impleading Harnam Das Bhatia as one of the respondents in the claim petition is allowed. The Tribunal will now proceed further in accordance with law. Costs made easy.