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Allahabad High Court · body

2009 DIGILAW 3012 (ALL)

MALTI DEVI v. VINOD SHANKER SINGH

2009-09-02

B.K.NARAYANA, P.C.VERMA

body2009
JUDGMENT By the Court.—Heard learned counsel for the parties. 2. The claimant-appellant Smt. Malti Devi filed M.A.C.P. No. 48 of 1986 before the M.A.C.T. Mirzapur under Section 110-A of the Motor Vehicles Act claiming Rs. 2,00,000/- as compensation against the respondents for the death of her husband Dewanand Yadav on 6.1.1985 in an accident caused due to rash and negligent driving of the offending vehicle by its driver. Since the claim petition was filed 440 days after the date of the accident although the period of limitation prescribed under the old Act for moving a claim petition which was six months from the date of the accident, the claim petition was accompanied with an application for condonation of delay . The said application was supported by affidavit of the appellant. By the impugned order the M.A.C.T. Mirzapur rejected the delay condonation application as well as the claim petition as barred by time. The instant first appeal from order has been filed by the claimant/appellant against the aforesaid order of the M.A.C.T. 3. Learned counsel for the appellant submitted that during the pendency of the appeal the Motor Vehicles Act, 1939 was repealed and replaced by Motor Vehicles Act, 1989 and Section 166(3) whereof which was was introduced in place of Section 110-A (3)of the 1939 Act, which also provided six months limitation for filing of claim petition. Further, Section 166(3) was omitted by Section 53 of the Motor Vehicles (Amendment) Act, 1994 and after the omission of Section 166(3) there is no limitation for filing of claim petition. He submitted that in respect of pending matters also it will be deemed that there was no limitation for filing the claim petition. He submitted that the claim petition should be treated as maintainable even if it was filed beyond the period of limitation as contemplated under sub-section (3) of Section 110-A of Motor Vehicles act and should be decided on merits. In support of his contention he relied upon the judgment of the Hon’ble Supreme Court in the case of Dhannalal v. D.P. Vijayvargiya, 1996 ACJ 1013 (SC) in which the Hon’ble Apex Court held as follows : “In this background, now it has to be examined as to what is the effect of omission of sub-section (3) of Section 166 of the Act. From the Amending Act, it does not appear that the said sub-section (3) has been deleted retrospectively. From the Amending Act, it does not appear that the said sub-section (3) has been deleted retrospectively. But at the same time, there is nothing in the amending Act to show that benefit of deletion of sub-section (3) of Section 166 is not to be extended to pending claim petitions where a plea of limitation has been raised. The effect of deletion of sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose, an accident had taken place two years before 14.11.1994 when sub-section (3) was omitted from Section 166. For one reason or the other no claim petition had been filed by the victim of the heirs of the victim till 14.11.1994. Can a claim petition be not filed after 14.11.1994 in respect of such accident? Whether a claim petition filed after 14.11.1994 can be rejected by the Tribunal on the ground of limitation saying that the period of twelve months which had been prescribed when sub-section (3) of Section 166 was in force having expired the right to prefer the claim petition had been extinguished and shall not be revived after deletion of sub-section (3) of Section 166 w.e.f. 14.11.1994. According to us, the answer should be in negative. 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. 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. It need not be impressed that parliament from time to time has introduced amendments in the Old Act as well as in the new Act in order to protect the interest of victims die. It need not be impressed that parliament from time to time has introduced amendments in the Old Act as well as in the new Act in order to protect the interest of victims die. One such amendment has been introduce in the Act by the aforesaid Amendment act 54 of 1994 by substituting sub-section (6) of Section 158 which provides: ‘As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by police officer, the officer in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report of the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days on receipt of such report forward the same to such Claims Tribunal and insurer. In view of sub-section (6) of Section 158 of the Act the officer in-charge of the police station is enjoined to forward a copy of information/report regarding the accident to the Claims Tribunal having jurisdiction. A copy thereof has also to be forwarded to the concerned insurer. It also requires that where a copy is made available to the owner of the vehicle, he shall within thirty days of receipt of such copy forward the same to the Claims Tribunal and insurer. In this background, the deletion of sub-section (3) from Section 166 should be given full effect so that the object of deletion of said section by Parliament is not defeated. If a victim of the accident or heirs of the deceased victim can prefer the claim for compensation although not being preferred earlier because of the expiry of the period of limitation prescribed, how the victim of the heirs of the deceased shall be in a worse position if the question of condonation of delay in filing the claim petition is pending either before the Tribunal, High Court or the Supreme Court. The present appeal is one such case. The appellant has been pursuing from Tribunal to his Court. His right to get compensation in connection with the accident in question is being resisted by the respondent on the ground of delay in filing the same. The present appeal is one such case. The appellant has been pursuing from Tribunal to his Court. His right to get compensation in connection with the accident in question is being resisted by the respondent on the ground of delay in filing the same. If he had not filed any petition for claim till 14.11.1994 in respect of the accident which took place on 4.12.1990, in view of the amending Act he became entitled to file such claim petition, the period of limitation having been deleted, the claim petition which has been filed and is being pursued up to this court cannot be thrown out on the ground of limitation.” 4. Learned counsel for the appellant has relied upon another case of the Apex Court, New India Assurance Co. Ltd. v. Ramesh Bhai C. Patel, 1997 ACJ 938 (SC), in which against the rejection of claim petition which was beyond time, a petition was filed under Article 227 of the Constitution of India. During the pendency of the writ petition, Section 166 (3) of the Act was deleted in 1994. The petition was allowed by the court giving benefit of deletion of sub-section (3) of Section 166 of the Act inasmuch as the petition was pending on the date of the coming into force of the amendment. New India Assurance Co. Ltd. Filed an appeal before the Hon’ble Supreme Court in which it was argued that the relief granted by the High Court of entertaining the claim petition in view of the deletion of sub-section (3) of Section 166 of the Act could not have been given in a petition under Article 227 of the Constitution of India. It was submitted that only an appeal in the High Court under Section 173 of the Act could have been treated as a pending matter in which the benefit of deletion of sub-section (3) of Section 166 of the Act could have been given. He also submitted that there is a limitation prescribed for filing an appeal under Section 173, which had expired. The Apex Court has held as follows : “In our opinion these are mere procedural or technical objections which should not frustrate the course of justice. The object of omitting sub-section (3) of Section 166 of the Act to remove the bar of limitation for a claim petition is obvious. The Apex Court has held as follows : “In our opinion these are mere procedural or technical objections which should not frustrate the course of justice. The object of omitting sub-section (3) of Section 166 of the Act to remove the bar of limitation for a claim petition is obvious. This being so, a matter which was pending in the High Court, when this change was brought about, should be governed by the effect of omission of sub-section (3) of Section 166. In the present case, the petition under Article 227 of the Constitution of India is deemed to be an appeal to the High Court under Section 173 of the Act and condoning the delay in filing the appeal, the benefit of omission of sub-section 3 of Section 166 is granted to the claimants. The High Court’s order directing the claim petition to be order directing the claim petition to be entertained and decided on merits is sustained on this basis. 5. Learned counsel for the appellant has relied the case of S. Palakondarayudu v. Vice Chairman-cum-Managing Director, A.P.S.R.T.C, Hyderbad, 2001 ACJ 1956 (AP) in which Andhra Pradesh High Court under similar circumstances held as under : “As the appeal is a continuation or a part of cause, and the intention of the legislature in deleting Section 166(3) is to obliterate the fetter imposed under Section 166(3), and apart from that sub-section (6) of Section 158 is amended stating that the office-in-charge of the police station after completion of investigation shall forward a copy of the same within 30 days from the date of recording of the information or, as the case may be, on completion of such report to the Claims Tribunal and a copy thereof to the concerned insurer and when a copy is made available to the Claims Tribunal, under section (4) of Section 166, the Claims Tribunal shall treat the report of accident forwarded to it under sub-section (6) of Section 158 of Motor Vehicles Act, as an application for compensation under this Act. 6. Thus, in view of the law laid down by the Hon’ble Apex court in Dhannalal v. D.P. Vijayvargiya, (supra), New India Assurance Co. Ltd. v. Ramesh Bhai C. Patel (supra) and S. Palakondarayudu v. Vice Chairman-cum-Managing Director, A.P.S.R.T.C, Hyderbad, 2001 ACJ 1956 (AP). 6. Thus, in view of the law laid down by the Hon’ble Apex court in Dhannalal v. D.P. Vijayvargiya, (supra), New India Assurance Co. Ltd. v. Ramesh Bhai C. Patel (supra) and S. Palakondarayudu v. Vice Chairman-cum-Managing Director, A.P.S.R.T.C, Hyderbad, 2001 ACJ 1956 (AP). Andhra Pradesh (supra), we hold that the amendment of Section 166 of the Motor Vehicles Act is retrospective in operation and governs pending the proceedings including the appeal the benefit of deletion of Section 166(3) is available to the pending cases and even if the claim petition was filed beyond the period of limitation as contemplated under Section 110-A of the Act it has to be treated as maintainable in view of appeal being pending before this Court against the order of the District Judge rejecting the application for condonation of delay and the claim petition cannot be thrown out on the ground of limitation. Hence, the appellant is entitled to the benefit of the amendment of Section 166(3) of the Motor Vehicle Act and Section 53 of the Motor Vehicle Amendment Act, 1994. 7. Learned counsel for the appellant also contended that the sufficient reasons had been given for condonation of delay and the learned District Judge has rejected the application for condonation of delay in a pedantic manner. 8. We have perused the reasons for the delay in filing the claim petition stated in the affidavit. The reasons cannot be said to be without any basis. The learned District Judge has taken a pedantic view while rejecting the application for condonation of delay. It is settled principle of law that in the matter of condonation of delay, a liberal view should be taken by the court so that justice may not be denied to the party. 9. For the aforesaid reasons, the appeal is allowed. The order dated 31.1.1987 passed by District Judge, Mirzapur in Misc. Case No. 48 of 1986 is set aside. The District Judge, Mirzapur is directed to decide the claim petition under the Motor Vehicles Act on merits after hearing both the parties. It is further directed that the claim petition may be disposed of expeditiously preferably within a period of six months. ————