Balkar Singh vs Chajju Ram and Another

M.L. Bhat, J.—On difference of opinion between Mufti, Actg. CJ. and Kotwal, J., this case has come up before me.

In a claim petition pending before the Motor Accidents Claim Tribunal, a preliminary objection was raised about the maintainability of the

petition on the ground of limitation and an issue was framed and the learned Tribunal vide impugned order before the Division Bench entertained

the claim petition by condoning the delay in filing the petition after time. The Tribunal also held that the claim Petitioner was prevented by sufficient

cause for not filing the claim petition within time. An appeal was filed against the said order dated 26.4.1977, whereby the learned Tribunal

entertained the petition for compensation, to this Court. A preliminary objection was raised by the Respondent who was the claim Petitioner before

the Tribunal to the effect that the order dated 26.4.1977 was not an award within the meaning of Section 110-B of the Motor Vehicles Act,

therefore, the appeal was not competent.

The learned Judges constituting the Division Bench have differed in their opinion and have relied on a Full Bench decision of this Court titled

Mohammad Yousuf Wani v. Abdul Rehman Gujri 1983 ACJ 242 (J &K). The said authority is interpreted by the two learned judges differently in

support of their judgments. Learned Acting Chief Justice held that the order impugned in the appeal was an award and was appealable while

Kotwal, J. held that it was not an award and was not appealable.

Mohammad Yousuf Wani v. Abdul Rehman Gujri 1983 ACJ 242 (J &K), by majority judgment has held that an order of the Claims Tribunal

refusing to set aside the order dismissing the claim petition for non-appearance of the claimant, is not appealable as it was not an award. The

minority view expressed by Mir, J. was that it was an award and was appealable. The concurring Judges constituting the majority view in favour of

the proposition that it was not an award and hence not appealable had given different reasons in support of their views.

The short point in this appeal is whether condoning delay in filing the petition before the Claims Tribunal would be an award and appealable

under the provisions of the Motor Vehicles Act. There is difference of opinion among various High Courts in this regard, therefore, it is required

that divergence of opinion is discussed and correctness or otherwise of the opinions expressed in various judgments is pointed out. The learned

Counsel for the Appellant has submitted that the Claims Tribunal entertained a claim petition beyond the period of limitation by holding that the

claim Petitioner was prevented to make the petition within time for sufficient reasons will be an award within the meaning of Section 110-D of the

Motor Vehicles Act and is appealable. He has referred to Krishen Lal Trikha v. Jupiter General Insurance Co. 1977 ACJ 339 (J &K). A Division

Bench of this Court had held that order rejecting a claim petition on the ground that the same is barred by limitation would be an award and

appealable u/s 110-D of the Act. In arriving at this finding, the learned Judges constituting the Division Bench laid emphasis as to whether decision

would be determination and a judicial decision and held that there will be no difference between the claimants whose petitions are dismissed on

merits and those whose petitions fail on some other ground and accordingly held that order of the Claims Tribunal rejecting a claim petition on the

ground of limitation would be an award because it is determination of a claim. In G. Gopalaswami Vs. G. Navalgaria and Others, , it was held that

decision of a Tribunal on an application for excusing delay in filing the application for compensation would be an award and would be appealable.

In B. Govindarajulu Chetty v. M.L.A. Govindaraja Mudaliar 1966 ACJ 153 (Mad), it has been held that every decision of the Tribunal dismissing

a claim would be an award and would be appealable. In Komal Charan v. State of U.P. 1971 ACJ 320 (All), it was had that rejection of an

application for condonation of delay by the Tribunal would be an award and would be appealable u/s 110-D of the Act. Similar view has been

expressed in Vidya Wati v. Himachal Govt. Transport 1970 ACJ 424 (Del). Reliance has been placed on B. Govindarajulu Chetty v. M.L.A.

Govindaraja Mudaliar 1966 ACJ 153 (Mad).

However, a contrary view has been expressed in Mangat Ram v. Kamlesh 1969 ACJ 123 (All). In this authority it is held that an order allowing

an application for condonation of delay by the Tribunal is not an award and not appealable. In Mohammad Yousuf Wani v. Abdul Rehman 1983

ACJ 242 (J &K) Farooqi, Actg. CJ. after examining the various provisions of the Motor Vehicles Act has observed that the award is an

adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in an application for

compensation made u/s 110-A of the Motor Vehicles Act. In this view of the matter he held that dismissing an application for default of the

appearance of the Applicant does not amount to an award. He also proceeded to say that an order refusing to set aside an order dismissing such

an application for appearance of the Applicant will not be an award because in either case the order does not amount to an adjudication which

conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the application. While distinguishing G.

Gopalaswami Vs. G. Navalgaria and Others, , the learned Judge held that dismissal of an application as time barred would be an adjudication and

amounts to an award and was appealable. Kotwal, J. in his separate judgment observed that an order of the Tribunal which finally disposes of the

claim petition, one way or the other, after making the enquiry into the merits of the claim or the direct or immediate effect whereof is terminating the

proceedings in the claim petition even without going into the merits of the petition, would be an award within the meaning of Section 110-B and

Section 110-D of the Act. Applying this test he proceeded to observe that an order dismissing the claim petition for non-appearance of the

Petitioner is an award but an order dismissing an application for its restoration is not an award.

Mir, J. in his; separate minority judgment held that an award must be given wider and proper meaning. He expressed that an award would

include a decision refusing to go into the application and held that dismissing the claim petition for non-appearance was an award because in both

the cases the petition was finally disposed of resulting to refuse to determine the compensation and held the order appealable.

From the facts of the Full Bench authority in Mohammad Yousuf Wani v. Abdul Rehman Gujri 1983 ACJ 242 (J &K), it appears that a claim

petition was dismissed in default of appearance and a restoration application was made and the Tribunal had dismissed the said application on the

ground that no sufficient cause is shown for non-appearance on due date. Therefore the view expressed in the said authority is not of much

assistance so far as the present controversy is concerned. Mufti, Actg. CJ. had left this question open and had not dealt with the question in depth.

He had on the other hand proceeded to examine the various provisions of the Act and held that the award has reference with the matter which

comes within the purview of Section 110-A of the Act. He has not doubted but was distinguished for being an authority on a different point. In my

opinion the view expressed by Anand, J. (as his Lordship then was) in Krishen Lal Trikha v. Jupiter General Ins. Co. 1977 ACJ 339 (J &K), is

correct and seems to lay down the correct law. The award was interpreted by his Lordship in the following words:

The Concise Oxford Dictionary gives the meaning of an 'award' as a 'judicial decision'. u/s 110-B of the Motor Vehicles Act on the presentation of

a claim petition u/s 110-A of the Motor Vehicles Act the Tribunal is to hold an enquiry. Since an enquiry must result in a decision that in our

opinion would be a judicial decision. It is immaterial whether the decision determines the compensation payable to a party or dismisses his claim

petition. In either case that decision would be a determination and a judicial decision and as such would be an 'award'. Any other meaning to the

term 'award' would defeat the very purpose of the enactment (Motor Vehicles Act) and render Section 110-D of the Motor Vehicles Act

providing for appeals to the High Court nugatory. In our opinion, there is no warrant for discriminating between the claimants whose petitions are

dismissed on merits and those whose petitions fail on some other grounds. We are, therefore, of the opinion, that the order rejecting a claim

petition on the ground that the same is barred by limitation would be an 'award' and appealable u/s 110-D of the Motor Vehicles Act.

Dissenting from the view taken in Satish Chandra v. State of Uttar Pradesh 1971 ACJ 180 (ALL), it has held that the reasoning of K.V. Asthana,

J. in the said authority was too narrow and restricted. Mohammad Yousuf Wani v. Abdul Rehman Gujri 1983 ACJ 242 (J &K), authority of this

Court has also left the question of limitation and its condonation open. It has not at all dealt with this point. Therefore, the Full Bench authority will

not be an authority for the proposition as to whether entertaining a claim petition after the period of limitation by condoning the delay for sufficient

cause is an award or not. Kotwal, J. has dismissed the present appeal on the basis of the said authority but the majority view expressed in the said

Full Bench authority has not at all dealt with this question and this question has been left open. This question, as was rightly observed by Mufti,

Actg. CJ. Was left open. He has held the appeal maintainable and in my opinion the judgment of Mufti, Actg. CJ. appears to be correct. I say so

because u/s 110-A of the Motor Vehicles Act, the Tribunal has the competence to entertain an application beyond period of limitation prescribed

for the presentation of the claim petition provided it is satisfied that the Applicant was prevented by sufficient cause from making the application in

time. The satisfaction of the Claims Tribunal for condoning the delay in filing the application is to be assumed by the Tribunal on an enquiry which

must result in a decision which must be a judicial decision because for passing an award it is necessary that there must be an application u/s 110-A

of the Motor Vehicles Act. A period of limitation is fixed for filing such an application. What is sufficient cause for entertaining an application after

the period of limitation is to be determined by the Tribunal and if it is determined by the Tribunal its correctness or otherwise can be tested only by

preferring an appeal to the High Court, because it is the process which is incidental to award. Therefore, it would be appealable u/s 110-A of the

Motor Vehicles Act. In this view of the matter, I am not in agreement with the view expressed in Mangat Ram v. Kamlesh 1969 ACJ 123 (All).

The view expressed in Komal Char v. State of U.P. 1971 ACJ 320 (All), appears to be correct. Rejection of an application for condoning the

delay was held to be an award in this authority. Equally in my opinion, condoning delay for initiating the proceedings for compensation before the

Claims Tribunal would be an award because without the petition no award can be given by the Tribunal. I am in respectful agreement with the view

expressed by Kailasam, J. in G. Gopalaswami Vs. G. Navalgaria and Others, . It has been expressed by his Lordship as under:

...A reading of Section 110-D does not warrant the restricted meaning that an appeal is available only against the order granting or refusing the

award. The meaning of the word 'award' is 'to adjudge, grant... judicial decision'. The word 'award' is used to include a decision by the Claims

Tribunal in dealing with an application for compensation arising out of an accident. To construe the word award to include only the determination

or refusal to grant any compensation may be giving a very restricted meaning. When the Tribunal decides to entertain an application after the expiry

of 60 days or refuses to entertain an application, the decision is judicial in character and is an award. Section 110-D provides right of appeal to

any person aggrieved by an award of the Claims Tribunal and if the order refusing to excuse the delay is an award, there can be no difficulty in

holding that appeal lies against such order u/s 110-D.

The view expressed in B. Govindarajulu Chetty v. M.L.A. Govindaraja Mudaliar 1966 ACJ 153 (Mad), also seems to be correct.

The terms 'award' is not defined in the Motor Vehicles Act but it has been interprete'9 by this Court in Krishen Lal Trikha v. Jupiter Genl. Ins.

Co. 1977 ACJ 339 (J &K), to mean 'judicial decision'.. This meaning is given to the word 'award' in Concise Oxford Dictionary. While condoning

delay for entertaining an application for compensation the Tribunal has to give a judicial decision and it cannot condone delay in an arbitrary

manner. As already observed for passing an award or for refusing to pass an award there has got to be an application u/s 110-A of the Motor

Vehicles Act and proviso to Section 110-A(3) of the Act empowers the Tribunal to condone the delay for sufficient cause which would mean that

process for passing or refusing to pass an award is initiated by the Tribunal. Without there being the proceedings no award can be passed or

refused to be passed, so rejecting an application as barred by time or condoning the delay in not making an application within time will be identical

to passing an award and will be included in the term 'award'. Because the Tribunal has power to condone delay for sufficient cause in entertaining

the application for compensation; it has power to pass an award or conversely the Tribunal has power to dismiss an application on the ground of

limitation and has power to refuse to pass an award. In either case the Tribunal's adjudication will be furtherance of passing of an award or refusing

to pass an award. This will be a judicial decision and will come within the purview of the term 'award' and will be appealable u/s 110-D of the

Motor Vehicles Act.

For the reasons stated above, I am in respectful agreement with the order passed by Mufti, Actg. CJ. and hold that the appeal is maintainable

and I regret my inability to agree with the conclusion arrived at by Kotwal, J. in his order. The result is that the appeal is held to be maintainable

and the preliminary objection is overruled.