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2013 DIGILAW 520 (UTT)

Rajesh Kumar Mamgain v. Raj Singh

2013-08-08

B.S.VERMA

body2013
Judgment B.S. Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 22.7.2010 (Annexure-5 to the writ petition) passed by Addl. District Judge/F.T.C.-II, Dehradun. By the impugned order, learned Addl. District has dismissed the application moved by the petitioner/claimant for execution of award on the ground of delay and has held that provision of Order 21 C.P.C. would not apply. So far as limitation is concerned, for application filed under Section 174 of Motor Vehicles Act, Article 137, which provides limitation of three years, would be attracted. Learned counsel for the petitioner has contended that the approach of learned Tribunal is erroneous since there is no limitation prescribed u/s 174 of the Act. If a petition can be entertained without any limitation, likewise the application for execution can also be maintained since it is a special act. In support of his contention, learned counsel for the petitioner has placed reliance upon a judgment of the Apex Court passed in Motor Accident Claim Case in the case of New India Assurance Co. Ltd. v. C. Padma and another, AIR 2003 Supreme Court 4394 wherein at para-12 it has been held as under:- “12. 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 with the contention of the appellate for more than one reason. Firstly, such an Act like 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 mode of filing the application, procedure to be followed and award to be made. Firstly, such an Act like 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 mode of filing the application, procedure to be followed and award to be made. The Parliament, in its wisdom, realised 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 untrammelled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the Legislature.” In reply thereto, learned counsel appearing for the respondent has contended that where there is no limitation in the Act, provision of Article 137 of the Limitation Act would be applicable. In support, he placed reliance upon a judgment of Apex Court passed in the case of Krishan Kumar Sharma v. Rajesh Kumar Sharma, (2009) 11 Supreme Court Cases 537. I have heard learned counsel for the parties and carefully gone through the above case laws. The case law which has been cited by the learned counsel for the respondent was passed in the case of Indian Succession. Application of Article 137 has been dealt in the judgment that apart from application, the application which was to be filed to the court would be applicable. There is a difference between the two judgments relied upon by the respondent and the petitioner. In Krishan Kumar’s case (supra), the judgment has been delivered in relation to court, however, the controversy in the case in hand has been decided by Motor Accident Claims Tribunal therefore the ratio of the judgment cannot be applied. In view of judgment of Apex Court passed in New India Assurance Co. Ltd. v. C. Padma and another, AIR 2003 Supreme Court 4394 (supra), this Court is of the view that the finding given by the Tribunal in the impugned order that the application is time barred is patently erroneous. In view of judgment of Apex Court passed in New India Assurance Co. Ltd. v. C. Padma and another, AIR 2003 Supreme Court 4394 (supra), this Court is of the view that the finding given by the Tribunal in the impugned order that the application is time barred is patently erroneous. Impugned order is liable to be set aside on this ground and the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. Impugned order dated 22.7.2010 (Annexure-5 to the writ petition) passed by Addl. District Judge/F.T.C.-II, Dehradun is set aside. Learned Tribunal is directed to hear the petitioner as well as respondent with regard to contention of the respondent that the owner has already paid the amount to the claimants. Before issuing recovery certificate, learned Tribunal shall give liberty to the owner to substantiate his claim as to whether compensation has actually been paid to the claimants or not.