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2013 DIGILAW 321 (CHH)

KAMLA DEVI v. NONI BAI

2013-11-08

SANJAY K.AGRAWAL

body2013
ORDER 1. This is owner's appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 02.05.2011, passed by First Additional Motor Accident Claims Tribunal, Raigarh (for short the Tribunal) in claim Case No. 5 of 2011 by which the claimants' application filed under Section 166 of the Motor Vehicles Act, 1988 (for short the M.V. Act) has been partly allowed by the Claims Tribunal. 2. Brief facts in nutshell necessary for adjudication of this appeal are as under:- (2.1) Respondents No.1 & 2 claimants - unfortunate widow and son of deceased Anjor Singh Morao filed claim petition on 23.2.2007 under Section 166 of the Motor Vehicles Act, 1988 (for short the Act) for his death in the motor accident on 08.03.1980 and claimed Rs. 13,30,000/- along with interest @ 6% per annum from the date of filing of claim petition till its actual payment. (2.2) Appellant/owner of vehicle filed her written statement before the Claims Tribunal pleading inter alia that application as framed and filed on 23.2.2007 is barred by limitation and further pleaded that since on the date of accident offending vehicle was insured with the respondent No. 5 Insurance Company, therefore, the respondent No. 5 Insurance Company is liable for payment of compensation (if any). (2.3) Respondent No. 3 & 4 remained ex-parte before the Tribunal whereas respondent No. 4 Insurance Company opposed the claim petition by filing written statement holding that the driver of the offending vehicle did not have valid and effective driving licence to drive the offending vehicle as well the vehicle was not insured on the date of accident, therefore, the respondent No. 4 Insurance Company is not liable to pay compensation. (2.4) The Tribunal on a close scrutiny of the evidence led, held – application under Section 166 of the Motor Vehicle Act is not barred by limitation; the accident had occurred due to rash and negligent driving of Truck bearing registration No. MPT of 8976, Anjor Singh Morao died on account of injuries sustained by him in the said accident, exonerated the respondent No. 5 Insurance company from its liability to pay compensation to the claimants, and assessed and awarded aforesaid sum as compensation to the appellants/claimants and as against the appellant/owner of the vehicle. 3. Mr. 3. Mr. N.K. Vyas, learned counsel appearing for the appellant would submit that claim petition filed by the claimants claiming compensation for the death of Shri Anjor Singh Morao, who died on vehicular accident on 8.3.1980 when the Motor Vehicle Act, 1939 was in force in which the period of limitation for filing an application for compensation was initially six months which in appropriate cases can be extended up to one year by condoning the delay on assigning the sufficient cause. He would further submit that claim petition filed on 23.2.2007 for the death occurred on 8.3.1980 i.e. after lapse of a period of 27 years is hopelessly barred by limitation and therefore, the Tribunal has committed a grave legal error in entertaining the above claim petition. He would further submit that respondent No.5 Insurance despite order of the learned Claims Tribunal has not produced insurance policy, therefore, adverse inference ought to have been drawn against the respondent No.5 Insurance Company by the Tribunal. 4. On the other hand, Mr. Jaiswal and Mr. Awasthy, learned counsel appearing for the respondents supported the award impugned and would submit that the award passed by the Tribunal is just and fair and the application for claiming compensation has rightly been entertained and allowed by the Claims Tribunal. 5. I have heard learned counsel appearing for the parties and perused the rival submissions made therein. 6. In view of the factual and legal submission of the parties, following points would arise for determination of this Court:- (1) Whether finding of fact recorded by the Claims Tribunal that claim petition is not barred by limitation is just and proper? (2) Whether Claims Tribunal is justified in not drawing adverse inference for non production of insurance policy despite its order? ANSWER TO POINT NO.1 7. In order to answer the submissions raised by the appellants it would be profitable to have a quick survey of the legislative changes that has taken place in the Motor Vehicle Act. (7.1) In the old Motor Vehicles Act, 1939 (for short the Act of 1939) sub-section (3) of Section 110-A provided as under:- "110-A – (3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident. (7.1) In the old Motor Vehicles Act, 1939 (for short the Act of 1939) sub-section (3) of Section 110-A provided as under:- "110-A – (3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident. Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time." (7.2) The 1939 Act was repealed w.e.f. 1.7.1989. The period of limitation prescribed in the new Act is provided under sub-section (3) of Section 166. It reads:- "166. (3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident. Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than, twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time." (7.3) Sub-section (3) of Section 166 of the Act had been omitted by Act 54 of 1994 w.e.f 14.11.1994. The result of Act 54 of the Motor Vehicles (Amendment) Act, 1994 is that there is no limitation prescribed for filing claim petitions before the Tribunal in respect of any accident w.e.f. 14.11.1994. 8. In the instant case, claim petition was filed on 23.2.2007 which is admittedly a date after 14.11.1994, thus on 23.2.2007 there is no limitation prescribed for filing claim petition before the Tribunal on account of deletion of sub-Section 3 of Section 166 of the Motor Vehicle Act by Motor Vehicles (Amendment) Act, 1994. 9. The Supreme Court in case of Dhannalal vs. D.P. Vijayvargiya and others, (1996)4 SCC 652 , had considered the reasons for deletion of 166(3) of the Motor Vehicles Act, 1988, and while holding that with effect from 14.11.1994, there is no period of limitation for filing claims before the Tribunal in respect of any accident and held as under:- 6. Before the scope of sub-section (3) of Section 166 of the Act is examined, it may be pointed out that the aforesaid sub-section (3) of Section 166 of the Act has been omitted by Section 53 of the Motor Vehicles (Amendment) Act, 1994 which came in force w.e.f. 14.11.1994. Before the scope of sub-section (3) of Section 166 of the Act is examined, it may be pointed out that the aforesaid sub-section (3) of Section 166 of the Act has been omitted by Section 53 of the Motor Vehicles (Amendment) Act, 1994 which came in force w.e.f. 14.11.1994. The effect of the Amending Act is that w.e.f. 14.11.1994 there is no limitation for filing claims before the Tribunal in respect of any accident. It can be said that Parliament realized the grave injustice and injury which was being caused to the heirs and legal representatives of the victims who died in accidents by rejecting their claim petitions only on the ground of limitation. It is a matter of common knowledge that majority of the claimants for such compensation are ignorant about the period during which such claims should be preferred. After the death due to the accident of the breadearner of the family, in many cases such claimants are virtually on the streets. Even in case where the victims escape death some of such victims are hospitalized for months if not for years. In the present case itself the applicant claims that he met with the a6cident on 4.12.1990 and he was being treated as an indoor patient till 27.9.1991. According to us, in its wisdom, Parliament rightly thought that prescribing a period of limitation and restricting the power of the Tribunal to entertain any claim petition beyond the period of twelve months from the date of the accident was harsh, inequitable and in many cases was likely to cause injustice to the claimants. The present case is a glaring example where the appellant has been deprived by the order of the High Court from claiming the compensation because of delay of only four days in preferring the claim petition. 7. 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. 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. 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 or 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 clam 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. 10. The Supreme Court again in case of New India Assurance Co. Ltd. vs. C. Padma, (2003)7 SCC 713 , while considering the effect of deletion of Section 166(3) of the Motor Vehicles Act, 1988 and has held as under:- "10. When the claim petition was filed sub-section (3) of Section 166 had been omitted. Thus, the Tribunal was bound to entertain the claim petition without taking note of the date on which the accident took place. Faced with this situation, Mr. Kapoor submitted that in case of Dhannalal vs. D.P. Vijayvargiya and others, (1996)4 SCC 652 , does not consider Section 6-A of the General Clauses Act and therefore, needs to be reconsidered. We are unable to accept the submission. Faced with this situation, Mr. Kapoor submitted that in case of Dhannalal vs. D.P. Vijayvargiya and others, (1996)4 SCC 652 , does not consider Section 6-A of the General Clauses Act and therefore, needs to be reconsidered. We are unable to accept the submission. Section 6-A of the General Clauses Act, undoubtedly, provides that the repeal of a provision will not affect the continuance of the enactment so repealed and in operation at the time of repeal. However, this is subject to unless a different intention appears. In Dhannalal Case (supra) the reason for the deletion of subsection (3) of Section 166 has been set out. It is noted that, parliament realized the grave injustice and injury caused to heirs and legal representatives of the victims of accidents if the claim petition was rejected only on the ground of limitation. Thus the different intention clearly appears and Section 6-A of the General Clauses Act would not apply. (12) The learned counsel for the appellant next contended that since no period of limitation has been prescribed by the legislature, Article 137 of the Limitation Act may be invoked, otherwise, according to him, stale claims would be encouraged leading to multiplicity of litigation for non-prescribing the period of limitation. We are unable to countenance the contention of the appellant for more than one reason. Firstly, such an Act like the Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. Secondly, it is a self-contained Act which prescribes the mode of filing the application, procedure to be followed and award to be made. Parliament, in its wisdom, realized the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily injuries/die in accidents, by rejecting their claim petitions at the threshold on the ground of limitation, and purposely deleted sub-section (3) of Section 166, which provided the period of limitation for filing the claim petitions and this being the intendment of the legislature to~ give effective relief to the victims and the families of the motor accidents untrammeled the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the legislature." 11. Thus, the submission raised by learned counsel for the appellant that the claim application as framed and filed was barred by limitation under the Act of 1939 is not sustainable in law in view of fact that with effect from 14.11.1994, period of limitation for filing the claim petition has consciously been omitted by the legislature. Therefore, the submission made by learned counsel for the appellant that the application as filed by the claimants after 27 years was barred by limitation deserves to be rejected. 12. Thus, in the present case, the cause of action for filing claim petition arose on 8.3.1980 when the Act of 1939 was in force as death of Shri Anjor Singh Morao occurred in the said accident and the claim petition was filed on 23.2.2007 i.e. after lapse of 27 years after coming into force of New Act of 1988, after deletion of Section 166(3) of the Act with effect from 14.11.1994 cannot be said by barred by limitation and Claims Tribunal is justified in entertaining and granting the said petition. The first contention raised by Mr. N.K. Vyas is devoid of merit and answered accordingly. ANSWER TO POINT NO.2 13. Admittedly, the Claims Tribunal by order dated 7.12.2009 directed the respondent No. 5 Insurance Company to produce the insurance policy of the vehicle in question on affidavit but the said policy was not produced by the respondent No.5 Insurance Policy and during the course of trial its witness Mr. Indrajeet Singh Kalara (NAW-3), Branch Manager, Insurance Company has deposed in his evidence that since no such policy was issued in the name of appellant/owner Kamla Devi, therefore, the Insurance Company is not in possession of said document. Thus, the Insurance Company has clearly stated and brought the evidence on record to demonstrate that neither such policy was issued in favour of appellant Kamla Devi nor it is in possession of any such policy and the appellant has not brought the material available on record to show that respondent/ Insurance Company had the custody of Insurance Policy but had deliberately and willfully retained the policy in utter disregard of the order of the Court and even during the course of trial, the appellant had failed to establish on record that respondent No.5 Insurance Company had the custody of such policy the question of drawing adverse inference does not arise. Thus the Claims Tribunal was absolutely justified in not drawing adverse inference against the respondent/Insurance Company. 14. For the reasons mentioned hereinabove, the appeal being devoid of substance is liable to be and is hereby dismissed. 15. No order as to costs. Appeal Dismissed.