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2016 DIGILAW 1022 (HP)

Bakshi Ram Rattan Chand v. Vijay Kumar

2016-06-03

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, Chief Justice Subject matter of this appeal is the order, dated 30th March, 2010, passed by the Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, H.P., (for short, the Tribunal), in Claim Petition No.33 of 2005/04, titled N/s Bakshi Ram Rattan Chand vs. Vijay Kumar and others, whereby the claim petition was dismissed as abated, (for short, the impugned order). 2. Facts of the case, necessary for the disposal of the instant appeal, in brief, are that the claimant-firm, i.e. M/s Bakshi Ram Rattan Chand had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), through Duni Chand, who was the son and was Special Power of Attorney of the sole proprietor of the claimant-firm, namely, Bakshi Ram, for grant of compensation, as per the break-ups given in the claim petition, on the ground of damage having been caused to the building, shop, house and articles which were kept in the shop at the time of accident. 3. During the pendency of the Claim Petition, the sole proprietor of the claimant-firm, namely, Bakshi Ram had died, constraining the sons of said Bakshi Ram, namely, Prakash Chand and Duni Chand, to move an application before the Tribunal under Order 22 Rule 3 of the Code of Civil Procedure, (for short, CPC), for substituting them as legal representatives of deceased Bakshi Ram, alongwith application under Section 5 of the Limitation Act for condoning the delay in filing the said application. 4. The Tribunal after examining the pleadings of the parties, dismissed both the applications and consequently, the claim petition was also dismissed as abated. 5. Feeling aggrieved, the claimant-firm has questioned the impugned order by the medium of the instant appeal. 6. From the above narration of facts, the moot question emerges for consideration of this Court is – Whether the provisions of Limitation Act are applicable to the Claim Petitions filed under Section 166 of the Act? The answer is in the negative for the following reasons. 7. The Act has gone through a sea change and rigorous of Limitation Act have been taken away. Prior to coming into force of the amendment of the Act, limitation was prescribed for filing the claim petitions by the victims of a vehicular accident. The answer is in the negative for the following reasons. 7. The Act has gone through a sea change and rigorous of Limitation Act have been taken away. Prior to coming into force of the amendment of the Act, limitation was prescribed for filing the claim petitions by the victims of a vehicular accident. However, after noticing that the prescribing of limitation was operating harsh and in many cases was likely to cause injustice, the Act was amended and Sub Section (3) of Section 166 of the Act came to be deleted, which amendment came into force w.e.f. 14th November, 1994. The consequence of the above said amendment was that the Claim Petition, in a vehicular accident, could be filed by the victim at any time. 8. The Apex Court in Dhannalal vs. D.P. Vijayvargiya and others, AIR 1996 Supreme Court 2155, while examining the effect of omitting Sub-section(3) of Section 166 of the Act, has held that there is no limitation prescribed for filing claims before the Tribunal in respect of any accident. It was also held that where a claim petition was filed, while sub section (3) of Section 166 of the Act was operative, the same could not be dismissed on the ground that at the time of its filing it was barred by limitation under Sub-Section (3) of Section 166 of the Act: “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. The effect of the Amendment 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 realised 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. 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- 1990, and he was being treated as an indoor patient till 27- 9-1991. According to us, in its wisdom the Parliament, rightly thought that prescribing a period of limitation and restricting the power of 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 subsection (3) of Section 166, is not 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 ? 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 subsection (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 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 : "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 of such report, forward the some 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. 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 concerned insurer. It also requires that where a copy is made available to the owner of the vehicle, he shall within thirty days or 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 the 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, High Court or the Supreme Court. The present appeal is one such case. The appellant has been pursuing from 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.” 9. Another question which arises for consideration is – Whether the provisions of Order 22 of the CPC are applicable to the proceedings under the Act. The answer is in the negative for the reasons enumerated hereinbelow. 10. In view of the mandate of Sections 169 and 176 of the Act, the State of Himachal Pradesh has framed the Himachal Pradesh Motor Vehicles Rules, 1999, (hereinafter referred to as the Rules). Rule 232 of the Rules ibid provides as under: “232. The answer is in the negative for the reasons enumerated hereinbelow. 10. In view of the mandate of Sections 169 and 176 of the Act, the State of Himachal Pradesh has framed the Himachal Pradesh Motor Vehicles Rules, 1999, (hereinafter referred to as the Rules). Rule 232 of the Rules ibid provides as under: “232. The Code of Civil Procedure to apply in certain cases:- The following provisions of the First Schedule to the Code of Civil Procedure, 1908 shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30 ; Order IX ; Order XIII ; Rule 3 to 10 ; Order XVI, Rules 2 to 21 ; Order XVII ; Order XXI and Order XXIII, Rules 1 to 3. Section 169 and 176 (b).” 11. Thus, it is clear from the above quoted Rule that the provisions of Order 22 of the CPC have not been made applicable to the proceedings under the Act. Therefore, the question of abatement does not arise, as has been held by the Tribunal. 12. The Tribunal has also lost sight of the fact that sub section (6) to Section 158 and sub section (4) to Section 166 have been added, which are reproduced below: “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.” “166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act.” 13. Under Sub Section (4) of Section 166 of the Act, a Claims Tribunal is under obligation to treat any report of accident forwarded to it under Section 158 (6) as an application for compensation. Under Sub Section (4) of Section 166 of the Act, a Claims Tribunal is under obligation to treat any report of accident forwarded to it under Section 158 (6) as an application for compensation. The purpose of inserting the aforementioned sub sections in the Act is to ensure that the claimants in a vehicular accident do not suffer unnecessarily and get compensation as early as possible. Therefore, the Tribunal was not right in its approach, while dismissing the claim petition as having abated, when the provisions of Order 22 of the CPC were not applicable, as has been held above. 14. In view of the above discussion, the appeal is allowed, the impugned order is set aside and the Tribunal is directed to conclude the claim petition, after bringing on record the Legal representatives of deceased Bakshi Ram, within three months, from 20th June, 2016, on which date the parties shall cause appearance before the Tribunal. Needless to say that the Tribunal shall determine the claim petition after giving adequate opportunity to all the parties and uninfluenced from the observations made hereinabove. The Registry is directed to send the record of the case, alongwith a copy of this judgment, to the Tribunal forthwith so that the same reaches the Tribunal well before the date fixed. 15. The appeal stands disposed of accordingly.