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2014 DIGILAW 742 (ALL)

ASGAR KHAN v. NEW INDIA ASSURANCE CO. LTD.

2014-03-03

OM PRAKASH VII, SANJAY MISRA

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JUDGMENT : SANJAY MISRA, OM PRAKASH-VII, JJ. 1. Heard Mrs. Rajni Ojha, learned counsel for the appellants, Mr. B.N. Pandey, learned counsel appearing for the respondent Nos. 2, 3 and 4, and Mr. Amit Singh, learned counsel for the insurance company. This first appeal from order under section 173 of Motor Vehicles Act, 1988 has been filed against the order passed in M.A.C.P. No. 72 of 2004 (Asgar Khan v. Dina Nath Mishra) dated 24.3.2009 by the M.A.C.T./District Judge, Ballia whereby the claim petition has been rejected. 2. The learned counsel for the appellants has referred to the finding recorded by the Tribunal on issue No. 1 and submits that the sole ground for deciding the issue against the claimants-appellants is that the claim application was filed 10 years after the accident which occurred on 21.3.1994 resulting in the death of Anwar Khan. According to the learned counsel for the appellants, the provision of limitation for filing a claim petition under section 166 of the Motor Vehicles Act has since been deleted and such matter was considered by the Supreme Court in the case of The New India Assurance Co. Ltd. Vs. C. Padma and Another, (2003) 7 SCC 713 . 3. Learned counsel for the respondents has submitted that the delay of ten years in filing the claim petition has not been explained and, therefore, the Tribunal was right in deciding the issue No. 1 against the claimants-appellants by holding that the claim petition having been filed after ten years of the accident is barred by limitation. 4. We have considered the submissions of the learned counsel for the parties and perused the record. 5. Issue No. 1 framed by the Tribunal was whether the driver of the vehicle was driving the vehicle rashly and negligently, which resulted in the death of Anwar Khan. The Tribunal has considered the evidence led by the parties and while concluding to decide that issue has held that the claim petition has been filed about ten years after the accident, and there is no explanation given by the claimants-appellants for the delay of ten years. 6. The Tribunal then proceeded to decide issue No. 2 as to whether the vehicle was duly insured and issue No. 3 as to whether the driver of the vehicle had a valid driving licence. 6. The Tribunal then proceeded to decide issue No. 2 as to whether the vehicle was duly insured and issue No. 3 as to whether the driver of the vehicle had a valid driving licence. While deciding issue No. 2, it has found that the vehicle was not duly insured and while deciding issue No. 3 it has found that the driver of the vehicle did not have a valid driving licence on the date of the accident. 7. Thereafter the Tribunal proceeded to decide issue No. 4 regarding quantum of compensation and it has decided that the accident itself has not been proved. 8. In so far as the decision on issue No. 1 on the question of limitation of claim petition is concerned, the Supreme Court in the case of The New India Assurance Co. Ltd. Vs. C. Padma and Another, , has recorded, as quoted hereunder (paras 4, 5, 6, 7 and 12 of the said judgment): "(4) The only contention, which has been strenuously urged by the counsel for the appellant, is that the accident had taken place on 18.2.1989 and the claim petition was filed on 2.11.1995; when the claim was barred under the old Act, the same could not have been revived under the new Act. It is his contention that on this score alone the claim petition should have been dismissed. To answer this contention it would be useful to have a quick survey of changes that have taken place in the Act. The old Act of 1939 has been repealed and since then there is a sea of changes in the Act. In the old Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') sub-section (3) of section 110-A provided: '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.' (5) 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. 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.' (6) The only difference that has been brought about in between the old Act and the new Act is that the Tribunal may entertain an application after the expiry of period of six months but not later than twelve months. (7) In the instant case, at the time when respondents had filed claim petition on 2.11.1995, the situation was completely different. 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 section 53 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. (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 appellant 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. 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 untrammelled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the legislature." 9. From the above decision, it is apparent that prior to its amendment, the old Motor Vehicles Act provided for limitation under section 110-A(3) whereafter with effect from 1989 when the new Act came into force, limitation was provided under section 166(3). However, subsequent thereto by the Amendment Act 54 of 1994, sub-section (3) of section 166 was omitted w.e.f. 14.11.1994 with the result that under the Motor Vehicles (Amendment) Act, 1994, mere was no limitation prescribed for filing a claim petition before the Tribunal. 10. Admittedly, the accident in this case has occurred on 21.3.1994. The Supreme Court in the case of New India Assurance Co. Ltd. (supra) considered the decision in the case of Dhannalal Vs. D.P. Vijayvargiya and Others, (1996) 4 SCC 652 and referred to paras 6 and 7 in Dhannalal's case (supra). The same have been quoted in para 9 of the judgment, which is also quoted hereunder: "(9) This court in Dhannalal's case (supra), after examining the effect of the various amendments that have been brought about in the Act, stated in paras 6 and 7 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 into 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 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 bread earner of the family, in many cases such claimants are virtually on the streets. Even in cases where the victims escape death some of such victims are hospitalised for months if not for years. In the present case itself the applicant claims that he met with the accident on 4.12.90 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. 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. 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 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 interests of the victims of the accidents and their heirs if the 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 interests of the victims of the accidents and their heirs if the victims die. One such amendment has been introduced in the Act by the aforesaid Amendment Act 54 of 1994 by substituting sub-section (6) of section 158 which provides: "158 (6) 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 a police officer, the officer incharge 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 to 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 of 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 incharge of the police station is enjoined to forward a copy of information/report regarding the accident to the Tribunal having jurisdiction. A copy thereof has also to be forwarded to the insurer concerned. 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 the said section by Parliament is not defeated. If a victim of the accident or heirs of the deceased victim can prefer claim for compensation although not being preferred earlier because of the expiry of the period of limitation prescribed, how the victim or 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, the High Court or the Apex Court. The present appeal is one such case. The appellant has been pursuing from the Tribunal to this court. The present appeal is one such case. The appellant has been pursuing from the Tribunal to this court. His right to get compensation in connection with the accident in question is being resisted by the respondents 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'." 11. Having considered the decision in Dhannalal Vs. D.P. Vijayvargiya and Others, (1996) 4 SCC 652 , the Supreme Court in para 10 of the decision has laid down as under: "(10) The ratio laid down in Dhannalal's case (supra) applies with full force to the facts of the present case. 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 Dhannalal's case 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's case the reason for the deletion of sub-section (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 ground of limitation. Thus 'the different intention' clearly appears and section 6-A of the General Clauses Act would not apply." 12. From the aforesaid decision, it is quite clear that the date of accident, whether it is prior to 14.11.1994 or thereafter, would not be relevant since after deletion of sub-section (3) of section 166 of the Motor Vehicles Act, there is no limitation for filing a claim petition. 13. From the aforesaid decision, it is quite clear that the date of accident, whether it is prior to 14.11.1994 or thereafter, would not be relevant since after deletion of sub-section (3) of section 166 of the Motor Vehicles Act, there is no limitation for filing a claim petition. 13. Hence, in light of the decision of the Apex Court in The New India Assurance Co. Ltd. Vs. C. Padma and Another, and Dhannalal Vs. D.P. Vijayvargiya and Others, (1996) 4 SCC 652 , the decision of the Tribunal under the impugned order rejecting the issue No. 1 on the ground of limitation is illegal and erroneous. 14. The finding on issue No. 2 is against the owner of offending vehicle. Similarly, issue No. 3 was decided against the driver. Although the findings on issue Nos. 2 and 3 are not against the claimants-appellants and it is a matter between insurance company, owner and driver of the offending vehicle, but having considered the fact that the findings on issue No. 1 have been found to be illegal and erroneous, therefore, we are of the view that the appeal is liable to be allowed and the impugned judgment and award, in toto, is liable to be set aside. For aforesaid reasons, the impugned judgment and award dated 24.3.2009 passed in M.A.C.P. No. 72 of 2004 (Asgar Khan v. Dina Nath Mishra) by M.A.C.T./District Judge, Ballia is set aside and the matter is remitted back to the Tribunal to decide afresh in accordance with law and on the basis of evidence available on record. The appeal stands allowed. No order as to costs.