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2022 DIGILAW 1272 (ALL)

Mangal Batra v. Mohammad Rafeeq Visayati

2022-08-10

AJIT KUMAR

body2022
JUDGMENT : AJIT KUMAR, J. 1. Heard Sri Manish Tandon, learned counsel for the petitioner, Sri Rahul Sahai, learned counsel for the respondent Nos. 3 & 5. 2. By means of this writ petition filed under Article 226 of the Constitution, petitioner has challenged the order dated 18th April, 2022 of the Motor Accident Claims Tribunal, whereby the claim petition of the petitioner has been returned on the ground that it came to be filed beyond the prescribed period of limitation i.e. six months from the date of accident and hence as per Section 166 (3) of the Motor Vehicles Act, 1988 as amended vide Act No. 32 of 2019 and made effective from 1st April, 2022, the claim petition was held not maintainable. 3. The argument advanced by learned counsel for the petitioner is two fold: (A) The Tribunal is not justified in returning the claim petition on the ground of delay in filing the claim petition because the amending Act was made effective only from 1st April, 2022 and even though the claim petition was filed on 12th April, 2022 but amendment incorporating period of limitation under the Motor Vehicles Act being only prospective in nature, application was maintainable. In support of his argument, he has placed reliance upon the judgment of Kerala High Court in the case of Sathi and Others vs. Dileep I.S. and Others decided on 1st June, 2022 in OP (MAC) No. 51 of 2022, wherein this legal aspect of the matter has been dealt with extensively and it has been held that amended provision of Motor Vehicles Act, 1988 was having only prospective effect from 1st April, 2022 in terms of the accident occurring on that day or subsequently; and (B) Since the accident had taken place on 12th October, 2020 when the whole State was badly hit by the Covid-19, therefore, a general order condoning the delay for instituting judicial proceedings or for that matter quasi judicial proceedings, the Supreme Court took a pragmatic view that period during which the States and the nation were hit by the pandemic Covid-19, such period should be exempted from the period of limitation, or in other words the period of limitation would stand extended for such a period. In this connection, petitioner has relied upon the judgment of Supreme Court dated 10th January, 2022 passed in Misc. In this connection, petitioner has relied upon the judgment of Supreme Court dated 10th January, 2022 passed in Misc. Application No. 21 of 2022 in a Suo Moto Writ Petition (C) No. 3 of 2022. 4. Per contra, learned counsel for the Insurer has sought to justify the order impugned for the reasons assigned therein. 5. Having heard learned counsel for the parties and their arguments raised across the bar, I find that Accident Claims Tribunal has rejected the claim of petitioner solely on the ground that the accident had taken place on 12th October, 2020 and when the petition was presented before the Tribunal the amendment had already intervened which prescribed for six month limitation for moving application for claim under the Motor Vehicles Act. Applying the amended provision, the Tribunal has held that claim petition was not maintainable and accordingly returned the claim petition to the claimant-applicant. 6. The judgment of the Kerala High Court, as is claimed to be still holding the field, has dealt with the provisions and held that the amended provisions would have prospective effect only. Vide paragraph 10 of the judgment, it has been held thus: “10. Since while introducing the Act of 2019 effective from 1.4.2022, Legislature did not cause any amendment in the repealing and savings clause specifying its applicability in respect of the accidents occurred prior to the introduction of the amendment, in view of the provisions of Section 6 and the observations of the Supreme Court in the judgment in State of Punjab and Others vs. Bhajan Kaur and Others (supra), I am of the view that the applicability of the Act i.e. introduction of the old provisions of sub-section (3) of Section 166, would have a prospective effect and the limitation period of six months would apply after introduction of the amendment i.e. post 1st April, 2022. In other words, in any accident occurred after 1.4.2022, provisions of the amendment caused in the Act prescribing the limitation to entertain a claim petition, the parties would be governed by the same but not in respect of the persons whom a right had already accrued and was available if the amendment had not been caused.” 7. In other words, in any accident occurred after 1.4.2022, provisions of the amendment caused in the Act prescribing the limitation to entertain a claim petition, the parties would be governed by the same but not in respect of the persons whom a right had already accrued and was available if the amendment had not been caused.” 7. Having gone through the judgment of Kerala High Court and amended provisions of the Motor Vehicles Act, I find that though the Act came to be amended in the year 2019 vide Act No. 32 of 2019 but was made effective only from 1st April, 2022 and the Act does not make operation of the amended provision retrospective. 8. However, in order to appreciate the amendment made it would be appropriate to reproduce Section 166 of the Motor Vehicles Act, 1988 as it existed on the Statute book prior to 1st April, 2019: “166. Application for compensation: (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made: (a) by the person who has sustained the injury. (b) by the owner of the property. (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased. (d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (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.” 9. From the bare reading of the aforesaid provisions it is clear that there was no such limitation prescribed for, prior to 2019 as sub-section (3) of Section 166 that prescribed period for limitation between 6 to 12 months earlier had been subsequently repealed. 10. Now I reproduce Section 166 of the Motor Vehicles Act, 1988 as it stood amended vide Amending Act No. 32 of 2019: “166. Application for compensation: (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made: (a) by the person who has sustained the injury. (b) by the owner of the property. (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased. (d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. Provided further that where a person accepts compensation under section 164 in accordance with the procedure provided under section 149, his claims petition before the Claims Tribunal shall lapse. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident. (3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident. (4) The Claims Tribunal shall treat any report of accidents forwarded to it under section 159 as an application for compensation under this Act. (5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.” (Emphasis added) 11. Upon the bare reading of the aforesaid provisions, I find that second proviso to sub-section (1) of Section 166 has been added and further sub-section (3) and (5) have been added. Sub-Section (3) which is newly added section provides limitation of a period of six months for moving a claim petition of the occurrence of the accident. 12. Now what is material and substantially important is that limitation would run from the date of occurrence of the accident. 13. Now it is necessary to examine the amending Act itself in order to decipher its mode of implementation. Short title and commencement of the amending Act No. 32 of 2019 vide Section 1 and (2) of Chapter 1 of the said Act is relevant here and so is reproduced as under: “1. Short title and commencement: (1) This Act may be called the Motor Vehicles (Amendment) Act, 2019. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.” (Emphasis added) 14. A close scrutiny of aforesaid provisions makes it evident beyond any doubt that the amending Act, 2019 shall come into force only from the date it is notified by the Central Government in the official Gazette and there may be different dates for different provisions to be brought into force. 15. A close scrutiny of aforesaid provisions makes it evident beyond any doubt that the amending Act, 2019 shall come into force only from the date it is notified by the Central Government in the official Gazette and there may be different dates for different provisions to be brought into force. 15. Amending provisions in question brought on Statute vide Act No. 32 of 2019, were notified to be made operative in the official Gazette by the Central Government on 25th February, 2022 to be effectively operative w.e.f. 1st April, 2022. It is clear that until such notification as noticed above, the amending provisions of the Act No. 32 of 2019 with respect of Section 166, were not brought into force and since the amending Act of 2019 did not make it retrospective from the date of its notification and did not prescribed any amendment/alteration in repeal and saving clause of the Act so as to make it applicable in respect of the accident that had taken place prior to the date of notification, I find the view taken by the Kerala High Court to be justified and, therefore, do not find any reason to defer from the same. 16. As far as the other ground is concerned regarding condoning the delay during which limitation of six months' period is to be exempted on the ground of the impact of pandemic Covid-19 throughout the Nation in general and in State of Uttar Pradesh in particular, I find substance in the argument as well. However, since I am not able to uphold the order of the Tribunal on the very first ground alone, I need not go in detail into the second argument. 17. In view of the above, the order dated 18th April, 2022 passed by the Motor Accidents Claim Tribunal is hereby set aside. 18. The petitioner is directed to represent the petition again before the Tribunal within a period of three weeks from today and in the event if the same is presented within the period of three weeks, it shall be considered as such and the same shall be decided within a further period of three months as per procedure prescribed for. 19. The petitioner is directed to represent the petition again before the Tribunal within a period of three weeks from today and in the event if the same is presented within the period of three weeks, it shall be considered as such and the same shall be decided within a further period of three months as per procedure prescribed for. 19. Learned counsel for the petitioner has apprised the Court that Claims Tribunal in the State are refusing those claim petitions that have been preferred beyond the period of six months even in respect of claims of accident that occurred prior to 1st April, 2022. Learned Court for the Insurance Company could not dispute the above statement made at the bar. 20. Accordingly, I direct the Registrar General/Compliance to send a copy of this order to every Motor Accident Claims Tribunal in the State immediately.