Gitanjali Dash Vs Puskar Mahapatra@Bulu

1 . Instant appeal under Section 173 of the Motor Vehicles Act, 1988 (herein after referred to as ‘the M.V. Act’) is at the behest of the appellants assailing the impugned judgment passed in M.A.C. Case No.254 of 2021 (arising out of Jagatsinghpur P.S Case No.06 of 2010) by the learned District Judge-cum-1^st M.A.C.T, Jagatsinghpur in a proceeding under Section 166 of the M.V. Act, whereby, the application for compensation was dismissed on contest against respondent No.2 and ex parte vis-à-vis respondent No.1, namely, owner of the offending vehicle bearing registration No.OR-21A-6821 on the grounds inter alia that the same is not tenable in law and hence, liable to be interfered with and set aside followed by a direction to allow just compensation in their favour on account of death of the deceased.

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2 . The undisputed facts are as follows. As per the claim application filed by the appellants, the alleged occurrence took place on 2^nd January, 2010 at about 6 pm when the deceased while was standing on the road side near the spot, at that time, the offending vehicle, a motor cycle bearing suddenly arrived at a very high speed driven in a rash and negligent manner and dashed him from back, as a result of which, he sustained grievous head injury and other injuries as well and was immediately shifted to the hospital at Jagatsinghpur, however, succumbed later while under treatment and in that connection, Jagatsinghpur P.S. Case No.06 of 2010 was registered for offences under Sections 279 and 304-A IPC. It is pleaded by the appellants that the deceased was aged about 60 years, hale and hearty and was running a printing business with a monthly income of Rs.15,000/- contributed towards the family maintenance but due to the ill-fated accident, the family lost an earning member forever. It is further pleaded that the vehicle in question involved in the accident was validly insured with respondent No.2 and the rider of the motor cycle was possessed of a valid and effective DL at the time of the accident.

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3 . With the claim application filed under Section 166 of the M.V. Act, learned Tribunal received evidence from both the sides, whereas, respondent No.1 was set ex-parte and finally dismissed the same by the impugned judgment dated 12^th December, 2023 on the premise that it is barred by limitation in view of Section 166(3) as amended by the Motor Vehicles (Amendment) Act, 2019 which came into force w.e.f. 1^st September, 2019 since the application for compensation was filed on 21^st December, 2021.

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Such conclusion of the learned Tribunal is challenged by the appellants with a demand for compensation payable by respondent No.2 since the vehicle stood insured with them.

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4 . Heard Mr. Mishra, learned counsel for the claimants appellants and Mr. Das, learned counsel for respondent No. 2, namely, Insurance Company. None appears for respondent No.1.

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5 . Mr. Mishra, learned counsel for appellants submits that learned Tribunal committed a serious wrong by holding that the claim application is barred by limitation prescribed in Section 166(3) of the M.V. Act having been introduced w.e.f. 1^st September, 2019 and as such calculated the delay as 475 days. In order to explain the statutory position, Mr. Mishra, refers to the relevant provisions of the M.V. Act. It is submitted that a limitation was prescribed under Section 110-A of the M.V. Act, 1939 which remained in force till 1^st July, 1989 and in 1988, the same was retained though providing the Claims Tribunal, the discretion to entertain applications after expiry of six month but not later than 12 months. it is further submitted by Mr. Mishra that in the amendment of 1994 to Section 166 of the M.V. Act, period of limitation as it was earlier in the Act of 1939 and 1988 was omitted again to be inserted by Section 53(iii) of Act 32 of 2019 by way of the amendment which reads thus that ‘no application for compensation shall be entertained unless it is made within six months of the occurrence of the accident’ and the said amendment was brought into force on and from 1^st April, 2022. According to Mr. Mishra, the gross error which has been committed by learned Tribunal is in relation to the date of enforcement of the amended law which is noted down as 1^st

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September, 2019, whereas, it was brought into force from 1^st April, 2022 which means by the time the claim application was filed on 21^st December, 2021, there was no limitation prescribed and hence, the application was not required to be accompanied with any explanation for delay and therefore, dismissal of the application filed under Section 166 of the M.V. Act is to be set aside with a consequential direction allowing compensation in favour of the appellants. In support of the contention as advanced by Mr. Mishra, a decision of the Apex Court in the case of New India Assurance Company Limited Vrs. C. Padma and Another 2004 (I) T.A.C. 10 SC is placed reliance on by contending that delay in filing of claim application should not defeat the interest of the claimants since the M.V. Act to be a beneficial piece of legislation.

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6 . Mr. Dash, learned counsel for respondent No.2 submits that the claimants appellants are trying to revive a stale claim since the alleged accident is dated 2^nd January, 2010 and almost after twelve years, the claim application was filed. Mr. Dash would further submit that notwithstanding the error committed while applying the amended Act of 2019, the claim application could not have been entertained by learned Tribunal on account of the inordinate delay. It is contended by Mr. Dash that delay of twelve years has not been explained by the appellants and the same is fatal to the claim of compensation. It is further submitted that in order to entertain any such claim application with delay, an explanation is to be offered by the claimants which is absent in the case at hand and therefore, with the passage of time, the claim has become stale and dead which cannot be entertained

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and though the learned Tribunal dismissed the application filed under Section 166 of the M.V. Act with any such erroneous reason on limitation but the ultimate conclusion is correct and hence, the impugned judgment dated 12^th December, 2023 is not required to be disturbed. While contending so, Mr. Dash refers to the following decisions, such as, Purohit and Company Vrs. Khatoonbee and Another (2017) 4 SCC 783 ; Ibrahimpatnam Taluk Vyavasaya Collie Sangham Vrs. K. Suresh Reddy and others AIR 2003 SC 3592 ; and Situ Sahu and others Vrs. State of Jharkhand and others AIR 2004 SC 4918 besides Associated Cement Companies Limited Vrs. State of M.P. and Another AIR 2005 SC 2461 and Tamilnadu Sugar Corporation Limited Vrs. Commissioner of Income Tax and another 2000 SCC OnLine Madras 1027 while pleading that the conclusion even though is wrong for the reason assigned, the impugned decision need not be interfered with as it relates to a stale claim.

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7 . Learned Tribunal framed the following issues: (i) as to if the claim application to be maintainable; (ii) whether the accidental death is on account of rash and negligent driving of the rider of the motorcycle; (iii) whether the claimants are entitled to compensation; and (iv) to any other reliefs and considering the evidence on record, answered issue No.(ii) in favour of the claimants. While dealing with the issue Nos. (i), (iii) & (iv), learned Tribunal has taken cognizance of Section 166(3) of MV Act and concluded that the claim application is barred by limitation since it was required to be filed within six months from the date of alleged occurrence. Such a conclusion is based on the premise that the amended Act of 2019 was brought into force

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w.e.f. 1^st September, 2019. It is not in dispute that the Motor Vehicles (Amendment) Act, 2019 with the limitation prescribed was inserted by Section 53(iii) of Act 32 of 2019 but the same was enforced w.e.f. 1^st April, 2022. So, therefore, the Court finds that learned Tribunal fell into an error with a conclusion that the claim application dated 21^st December, 2021 to be barred by law in view of the Amendment Act 2019.

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8 . While replying to the contention of Mr. Dash on inordinate delay, it is submitted by Mr. Mishra, learned for the appellants that irrespective of any such delay of twelve years, no explanation is required or ought to be accompanied with and such plea is based on the decision of the Apex Court in C. Padma (supra), wherein, the accident took place in the year 1989, whereas, Section 166(3) of the M.V. Act suffered an amendment by Act 54 of 1994 w.e.f. 14^th November, 1994 providing no limitation for filing of claim applications and therein, the application was filed on 2^nd November, 1995.

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9 . While dealing with the issue at hand, the Supreme Court in C. Padma (supra) reproduced the relevant extracts from Dhannalal Vrs. D.P. Vijayvargiya (1996) 4 SCC 652 , which read thus:

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“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 subsection (3) from Section 166 of the Act can be tested by an illustration. Suppose, an accident had taken place

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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. 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 in charge 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."

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In view of sub-section (6) of Section 158 of the Act the officer-in-charge of the police station is enjoined to forward a copy of information/report regarding the

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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 Supreme 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."

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10 . After having referred to the above decision, the Supreme Court in C. Padma (supra) held as hereunder:

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“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

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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 the 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.”

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11 . According to the Apex Court in the aforesaid decision though the accident is of the year 1989 and as there has been no limitation prescribed with an amendment to Section 166(3) of the MV Act introduced in 1994, learned Claims Tribunal was bound to entertain the application without taking note of the date of accident and at the same time, while addressing the concern of the Insurance Company appellant therein with regard to stale claims which may be filed leading to multiplicity of litigations, the following is the conclusion drawn:

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“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. The Parliament, in its wisdom, realized the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily

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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 by the technicalities of the limitation, invoking Article 137 of the Limitation Act would defeat the intendment of the Legislature.”

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12 . On a reading of the decisions referred to herein above, the Court finds that delay should not be a ground to dismiss the claim applications when the intendment of the legislature is to give effective relief to the victims and families in the motor accidents untrammeled by the technicalities of limitation invoking Article 137 of the Limitation Act.

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13 . The decision in Purohit & Company (supra) relied upon by Mr. Dash learned counsel for respondent No.2, the Apex Court held that even though the period of limitation prescribed under Section 166(3) of the MV Act was completely done away with in 1994 but the claim application filed therein since relates to an incident dated 2^nd February, 1977 and hence, was filed after more than twenty eight years, rejecting the only justification that the claimants to be poor having no knowledge about law, the same having not been filed within a reasonable time with the conclusion that the claim raised before the Claims Tribunal is considered to be genuine so long as it is live and surviving though reasonability would depend on the facts and circumstances of each particular case. For better appreciation, the relevant excerpt of the decision in Purohit & Company (supra) is reproduced herein below:

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“15. We are satisfied that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasized, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalal case the question of inordinate delay in approaching the Motor Accidents Claims Tribunal, was not considered in the second judgment in C. Padma case, it was considered. And in C. Padma case, the first conclusion drawn in SCC P.718, para-12 was”... if otherwise the claim is found genuine....”. We are of the considered view that a claim raised before the Motor Accidents Claims Tribunal can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accidents Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.”

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14 . In Purohit & Company case, the Apex Court has taken note of the earlier decisions including Dhannalal (supra) and concluded that a claim raised before the Tribunal can be considered to be genuine so long as it is a surviving claim and that considering the position of law, it has been held that a claim for compensation cannot be raised at any juncture after the accident had taken place and the individual concerned must approach the Claims Tribunal within a reasonable time by stressing upon the expression ‘if otherwise the claim is found genuine’ as observed in C. Padma (supra). So, therefore, the conclusion is that only a surviving claim can be entertained by a Tribunal and any such application under Section 166 of the M.V. Act has to be filed within a reasonable time. Of

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course, what would be a reasonable time in a particular case, it to be considered by the Tribunal to find out and ascertain if the same is concerning a surviving claim and not a stale one. Of course, in the case of Purohit & Company (supra), the delay in filing of application was 28 years and the justification towards such delay was not accepted despite a plea that the claimants to be poor and ignorant of law and not to have received even a penny towards compensation. Thus, the claim was held by the Apex Court to be a dead one notwithstanding no limitation prescribed since it was omitted by an amendment in 1994. In the instant case, admittedly, there has been a delay of twelve years. Though it has been concluded that by the time the claim application was filed, limitation under Section 166(3) of the M.V. Act was omitted by way of amendment in 1994, still to consider it to be a claim alive and surviving, learned Tribunal is required to consider it with reference to any such explanation offered by the claimants appellants. In other words, the Court arrives at a conclusion that the learned Tribunal failed to take judicial notice of the amended Act having been introduced w.e.f. 1^st April, 2022 and hence, therefore, has committed a wrong. At the same time, the conclusion of the Court is that since there is no evidence on record on delay of twelve years notwithstanding absence of any such limitation under Section 166(3) of M.V. Act, learned Tribunal is required to consider it with a response of the claimants appellants as to if the claim to be a live and surviving one so as to justify grant of compensation. Having held so, the claim application filed by the appellants is required to be restored to file for a decision on delay and also to consider, whether, the claimants appellants to be entitled to compensation payable by respondent No.2. The other

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decisions on the point involved are not discussed though taken cognizance of by the Court only to avoid burdening the judgment.

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15. Hence, it is ordered.

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In the result, appeal under Section 173 of the MV Act at the instance of the claimants appellants is hereby allowed. As a necessary corollary, the impugned judgment dated 12^th December, 2023 passed in M.A.C. Case No. 254 of 2021 by the learned District Judge-cum-1^st MACT, Jagatsinghpur is hereby set aside with a direction for a fresh hearing and disposal with restoration of the application to file considering the aspect of delay and compensation payable by respondent No.2 and such disposal shall be accomplished at the earliest preferably within a period of three months from the date of receipt of a copy of the judgment after providing reasonable opportunity of hearing to both the sides. It is directed that learned Tribunal shall do well to deal with all the issues and dispose of the matter as per and in accordance with law.

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In the circumstances, however, there is no order as to costs.

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(R.K. Pattanaik) Judge

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Signature Not VerifiedKabita/Rojina

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Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC, CTC Date: 08-May-2024 14:49:30

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Gitanjali Dash v. Puskar Mahapatra@Bulu

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Gitanjali Dash v. Puskar Mahapatra@Bulu

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