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2002 DIGILAW 311 (JK)

National Insurance Co. Ltd. v. Khatija

2002-10-09

MUZAFFAR JAN

body2002
1. The appeal has been filed to set aside the award passed by the Motor Accidents Claims Tribunal, Srinagar, on 26-09-1995 in the claim petition titled Mst. Khatija and others Vs. Mohammad Yousuf and others. 2. It appears that on 01-10-1987, deceased Ghulam Nabi Sofi was walking on the left side of the road in front of Bengal Motors at Maulana Azad Road, when a Matador No. JKD 568, which was coming from Dalgate and proceeding Lal Chownk, hit the deceased in such a manner that the deceased received injuries on his head, due to which the deceased Ghulam Nabi Sofi died. Petition was filed before the Motor Accidents Claims Tribunal, Srinagar, claiming compensation from the present appellant. The learned Tribunal considered the controversy on merits and after hearing the parties and perusal of evidence, allowed the petition by awarding compensation of Rs.2,20,000/- vide order dated: 26-09-1995. It is the validity of this order which has been challenged in the present appeal. 3. The main submission made in the memo of appeal are that the liability of the appellant under the terms and conditions of the Insurance Policy and the Act was limited upto Rs.50.000/- only. The award passed by the Tribunal exceeding the contractual limits of liability in violation of the statutory clause under Motor Vehicles Act 1939 Section 95 (2) (1) deserves to be set aside. 4. Learned counsel for the respondents has submitted that the appeal is time barred by three days and as the delay of 7/8 days in filing the appeal has been held fatal by the Division Bench of this High Court, in judgment reported in 1982, ACJ therefore, the present appeal be also dismissed. 5. Heard learned counsel for the parties at length and perused the entire record. 6. The facts which are not denied but are admitted, are that the deceased Ghulam Nabi Sofi was walking on his left side in front of Bengal Motors near Maulana Azad Road, on 01-10-1987, was hit by Matador No. JKD 568 in such a manner that the deceased received injuries on his head, due to which the deceased Ghulam Nabi Sofi died. It is also admitted that the Matador No. JKD 568 was covered by a valid policy of insurance. However, it is submitted by the appellant that the liability of the appellant was limited to Rs. 50,000/- only. It is also admitted that the Matador No. JKD 568 was covered by a valid policy of insurance. However, it is submitted by the appellant that the liability of the appellant was limited to Rs. 50,000/- only. The appellant has also conceded that the appeal has been filed beyond the period of limitation by three days. In this admitted factual position, the submission of learned counsel for the appellant that the time taken by the Tribunal to supply the certified copy of the award from 16-10-1995 to 25-10-1995 be permitted, cannot be allowed in view of the settled position of law. The question, whether the time taken for obtaining copy of the award can be excluded from the period of limitation, was considered by the Division Bench of this Court, way back in 1981 and the view taken by the Division Bench, as reported in 1982 ACJ 241 is as under: "The Motor Vehicles Act, 1939, which is a special Act is a self contained complete code in itself. A well established rule for the construction of statutes is that it could be presumed that the legislature did not intend a general enactment to interfere with the provisions of the Special Act. The legislature in its supreme wisdom, had drawn its attention, to the special subject matter and provided the contingencies under which an appeal should be preferred and the time during which it could be preferred. It would be defeating the intention of the legislature, if recourse is had to general law in preference to the special law for computing the period of limitation in the absence of any such provision in the Motor Vehicles Act. As a matter of fad, the legislature took care to provide in the Act itself, in the proviso to sub-section (1) of section 110-D, the circumstance under which the period prescribed for filing an appeal may be extended or the delay condoned and on that ground also it is not possible to resort to the provisions of the general law to extend the period of limitation for filing an appeal. We are, therefore, of the opinion, that section 12 (2) of the Limitation Act cannot be pressed into aid and a party filing an appeal against the award of Motor Accidents Claims Tribunal is not entitled to exclude the time, spent by it for obtaining a copy of the award."˜ 7. We are, therefore, of the opinion, that section 12 (2) of the Limitation Act cannot be pressed into aid and a party filing an appeal against the award of Motor Accidents Claims Tribunal is not entitled to exclude the time, spent by it for obtaining a copy of the award."˜ 7. In view of the settled position of law that the time taken for obtaining copy of the award cannot be excluded from the period of limitation, and, as even otherwise, the delay of each and every day has not been explained the appeal against the order impugned, being time barred, is not maintainable. The appeal is, therefore, dismissed.