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Rajasthan High Court · body

2002 DIGILAW 646 (RAJ)

ORIENTAL INSURANCE CO. LTD. v. SAFI MOHD.

2002-03-22

PRAKASH TATIA

body2002
Judgment PRAKASH TATIA, J. ( 1 ) THE notices of the respondent driver as well as owner were served in the S. B. Civil Misc. Appeal No. 188 of 1998, which was filed by the claimant for enhancement of the claim, but none appeared for the driver and owner of the vehicle. ( 2 ) HEARD learned counsel for the appellant oriental Insurance Co. Ltd. and learned counsel for the claimant on appeals filed by the claimant and insurance company both. The claimant has filed appeal for enhancement of the award amount whereas the insurance company has preferred the appeal challenging the award. ( 3 ) LEARNED counsel for the insurance company vehemently submitted that in this case accident took place on 18. 12. 1989, the new Motor Vehicles Act, 1988 came into force from 1. 7. 1989. Period of filing claim petition was provided in the new Act was only six months with a power to Tribunal to condone the delay of further six months only. Provision providing limitation for filing claims was subsequently amended in the year 1994 by which the bar of limitation was removed. The claim petition was filed in the year 1996 after seven years from the date of accident. According to the learned counsel for the appellant insurance company, the cause of action accrued to the claimant on 18. 12. 1989 and the right to avail remedy by lodging claim expired on 18. 12. 1990 and, therefore, the right, which was available to the claimant stands extinguished with the expiry of period of limitation as per old law, before amendment of 1994. The learned counsel for the appellant further submitted that in view of the judgment of the Honble Supreme court delivered in the case of Vinod gurudas Raikar v. National Insurance Co. 12. 1990 and, therefore, the right, which was available to the claimant stands extinguished with the expiry of period of limitation as per old law, before amendment of 1994. The learned counsel for the appellant further submitted that in view of the judgment of the Honble Supreme court delivered in the case of Vinod gurudas Raikar v. National Insurance Co. Ltd. , 1991 ACJ 1060 (SC), the Honble supreme Court, after considering section 6 of the General Clauses Act, held that the right once extinguished under the old Act cannot revive because of coming into force of the new Act and in the facts of the case before the Honble Supreme Court the honble Supreme Court also held that the benefit of provision of condonation of delay have not been changed by the new enactment and, therefore, the claim petition of the claimant, which was filed after six months of period of limitation without any ground for condonation of delay as found by the Tribunal is barred by time. It is also submitted by the learned counsel for the appellant that Honble Supreme Court in another case, Ramesh Singh v. Cinta Devi, 1996 ACJ 730 (SC), held that the provisions of the new Motor Vehicles Act, 1988 are not retrospective in operation. According to learned counsel for the appellant in subsequent judgment of the Honble Apex court delivered in the case of Dhannalal v. D. P. Vijayvargiya, 1996 ACJ 1013 (SC), neither the earlier judgment of the Honble supreme Court delivered in the case of vinod Gurudas Raikar (supra) and Ramesh singhs case (supra), were considered nor section 6 of the General Clauses Act was considered by the Honble Apex Court. Therefore, the objection of the appellant is squarely covered by the decision of the honble Apex Court delivered in the cases of Vinod Gurudas Raikar and Ramesh singhs case (supra ). ( 4 ) I considered the submission of learned counsel for the appellant and perused the judgments relied upon by the learned counsel for the appellant. Therefore, the objection of the appellant is squarely covered by the decision of the honble Apex Court delivered in the cases of Vinod Gurudas Raikar and Ramesh singhs case (supra ). ( 4 ) I considered the submission of learned counsel for the appellant and perused the judgments relied upon by the learned counsel for the appellant. In the case of ramesh Singh (supra), the Honble Apex court considered whether right of appeal under old Act survives even after its repeal by the new Act for which the Honble apex Court after considering section 6 of the General Clauses Act and section 217, sub-section (4) of the Motor Vehicles Act, 1988 held that right to appeal will crystallise in the appellant on the institution of the application in the Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the new Act and further held that in other words, appellant would be entitled to file the appeal without being required to make the deposit under the proviso to section 173 of the new Act. In this case, the point, which is involved before us was not there. ( 5 ) IN case of Vinod Gurudas Raikar (supra), relied upon by the learned counsel for the appellant also the dispute was somewhat different. In that case, the accident took place before the Act of 1988 came into force, but the claim application was filed after the Act of 1988 became operative. The limitation of six months for filing claim application was the same in the 1988 Act and in 1939 Act, but in 1988 act, the Claims Tribunal was given power to entertain the claim petition even after six months, if sufficient cause is shown by the claimant for not filing the claim within the period of limitation, but the maximum period is twelve months only. In the case of Vinod Gurudas Raikar the claim application was filed after a period of 12 months from the date of accident and the claimant contended that since the accident took place when the Act of 1939 was in force, the proceeding must be governed by the 1939 Act and not by the Act of 1988 and his right is preserved by section 6 of the general Clauses Act. The Honble Apex court held that clause (e) of section 6 of general Clauses Act, 1897 is not attracted because by the enactment of the new law the remedy of the appellant has not been affected at all. His right to claim compensation by filing the claim with the same period of limitation has been preserved. So far as the applicability of clause (c) is concerned, the question depends on whether the appellant had got an accrued right of privilege under the old law which he could not have been deprived of by the repealing legislation. The Honble Apex Court held that so far as the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act, subject to two conditions. One was remedy suddenly stands barred as a result of a shorter period of limitation then the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is whether the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. It was held that liberty to apply for a right is not in itself an accrued right or privilege. ( 6 ) THE Honble Apex Court in above case held that when actually proceedings were initiated when the old Act was in force covering the field then the claimant could say that his right which had accrued on filing of the petition could not be taken away. Here in the present case before us, admittedly, the claim petition was not filed when the old provision of law was in force. The claim petition was filed by claimant in the year 1996, which is after the amendment of 1994 by which the sub-section (3)of section 166 of the Act of 1988 has been omitted w. e. f. 14. 11. 1994, Therefore, there was no bar of limitation against entertaining the claim petition of the claimant at the time of filing of the claim petition. 11. 1994, Therefore, there was no bar of limitation against entertaining the claim petition of the claimant at the time of filing of the claim petition. Even in the Vinod Gurudas Raikars case, which was relied upon by the learned counsel for the appellant, the Honble Supreme Court categorically held that benefit of repealed law cannot be given to claimant because of cause of action for the claim arose before repeal. Therefore, the judgments relied upon by learned counsel for the appellant mentioned above have no application. ( 7 ) THE Honble Apex Court considered the effect of the deletion of sub-section (3)of section 166 of the Motor Vehicles Act, 1988 in the case of Dhannalal v. D. P. Vijayvargiya (supra), wherein the Honble apex Court very specifically held that when sub-section (3) of section 166 has been omitted then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place and the claim petitions cannot be thrown out on the ground that such claim petitions were barred by time when sub-section (3) of section 166 was in force. In view of the decision delivered in the case of Dhannalal (supra), it is clear that claim petition of the claimants was not liable for rejection on the ground of bar of limitation. It is also settled law that limitation for filing claim bars remedy only and does not destroy the right. Therefore, also the Tribunal had no jurisdiction to dismiss the claim on the basis of provision of the repealed Act. ( 8 ) THE learned counsel for the appellant insurance company further submitted that this is a case of contributory negligence. Tribunal has recorded a finding that this is a case of negligence of non-applicant No. 1 only and there is no evidence in rebuttal and also there is no evidence on record to justify that it is a contributory negligence. I do not find any force in the submission of the learned counsel for the appellant on this point also. Therefore, the appeal of the insurance company is dismissed. ( 9 ) THE claimant preferred S. B. Civil misc. I do not find any force in the submission of the learned counsel for the appellant on this point also. Therefore, the appeal of the insurance company is dismissed. ( 9 ) THE claimant preferred S. B. Civil misc. Appeal No. 188 of 1998 in which the claimant has submitted that in the accident claimant suffered several injuries resulting into paralysis of the left hand and left leg and it was stated that claimant was not in position even to sit without help. The details of his inability were given in the evidence. The certified copies of the statement were provided by learned counsel for the claimant and I found that there was a detailed narration of the physical condition of the claimant and there is no cross-examination on that point, particularly when the claimant himself was before the Tribunal and even before the eyes of the non-claimants before the Tribunal then it can safely be held that what the claimant has stated is true otherwise the Tribunal would have taken note of the fact after seeing the witness himself. This oral evidence is supported by other oral evidence and medical certificate. Therefore, in view of the nature of the injuries proved by the claimant, the award of Rs. 25,000 against the physical disability and loss of income quantifying Rs. 25,000 only is absolutely unjust and it is too low. It was alleged by the claimant that he was getting the salary of Rs. 2,500 per month. Though the Tribunal has recorded the finding that there is no reason to disbelieve the monthly income of the claimant to be Rs. 2,500, but the Tribunal has not apportioned how much loss of income will be suffered by the claimant. This is not a case of death of the victim. As per the evidence, the claimant suffered paralysis in hand and leg. The claimant has also not produced any doctor, therefore, it cannot be presumed that the claimant has lost his all earning capacity and he will not be in position to earn in future. What the claimant as well as witnesses have stated about physical position as it existed at the time of evidence. The Tribunal held that the income of the claimant was Rs. 2,500 per month even then the loss of the income to the claimant is assessed to be Rs. What the claimant as well as witnesses have stated about physical position as it existed at the time of evidence. The Tribunal held that the income of the claimant was Rs. 2,500 per month even then the loss of the income to the claimant is assessed to be Rs. 1,500 per month and the multiplier of 16 will be appropriate in view of the decision given by the Honble Apex Court delivered in the case of Ashwani Kumar Mishra v. P. Muniam Babu, 1999 ACJ 1105 (SC), then the net amount comes to Rs. 2,88,000. The award granted against the physical disability Rs. 25,000 and loss of income of rs. 25,000 on each head is modified and on both the counts the claimant is combinedly entitled for Rs. 2,88,000. The amount of the physical and mental suffering awarded by the Tribunal Rs. 5,000 is also too low and it is increased to Rs. 25,000. Therefore, total increase in the award is Rs. 2,73,000 (Sic. Rs. 2,58,000 ). The claimant will be entitled to interest at the rate of 9 per cent per annum from the date of claim on the enhanced amount. ( 10 ) IN view of the above reasons, the appeal of the claimant is partly allowed. ( 11 ) IN view of the above discussion the s. B. Civil Misc. Appeal No. 485 of 1999 is dismissed and the S. B. Civil Misc. Appeal No. 188 of 1998 is partly allowed. No order as to the costs. Appeal dismissed. .