Bhagat Ram and another vs Ujagar Singh and others

S.S. Sodhi, J.—The matter for consideration in this appeal is whether there were sufficient grounds for the condonation of the delay in the filing of application for compensation u/s 110-A of the Motor Vehicles Act.

The facts relevant to this matter are that Ram Sarup deceased is said to have been run over and killed in an accident with a truck, which took place on August 23, 1968. The claimants here are the parents of the deceased Ram Sarup. On October 13, 1968, they filed a suit in forma pauperis for the recovery of Rs. 12,000/- as compensation for the loss suffered by them on account of the death of the deceased, their son.

In this suit an objection was raised with regard to the jurisdiction of the Court to deal with the matter in view of the fact that after the accident but before the institution of the suit, a Motor Accident Claims Tribunal had been constituted. This Tribunal came into being on September 9, 1968. This objection was sustained and the plaint was accordingly returned to the claimants on April 19, 1971 for presentation to the proper Court. The claim was then presented before the Motor Accident Claims Tribunal on April 21, 1971. This came to be dismissed by the Tribunal on April 30, 1971 on the ground that it was barred by time.

The order of the Tribunal of April 30, 1971 was set aside by this Court in Civil Revision 726 of 1971, decided on October 17, 1973 and the Tribunal was directed to decide the application of the claimants for the condonation of delay in accordance with law after affording them an opportunity to substantiate their claim for such condonation. The application of the claimants for compensation was again dismissed as being barred by time by the Tribunal by its impugned order of January 19, 1977, whereby it was held that there was no sufficient cause for the condonation of the delay in the filing of the claim application in this case. It is this order which now stands challenged.

A broad liberal view is required to be taken in dealing with a matter like the present. During the relevant period, the claimants, as would be apparent from the facts set out above had very persistently been seeking redress for the loss suffered by them on account of the death of their son. The evidence on record shows that whatever they did it was under legal advise given to them by their counsel. The claimants being illiterate could not be expected to do better than

to follow it. There is no hint even of any mala fides or regligence on their part in following this advise In action or recklessness can by no means be imputed to them. The only point stressed against them being their having pursued their remedy in the wrong forum on the advise of their counsel.

It would clearly be unjust and unfair to hold this against the claimants. It may be recalled here, what the Supreme Court said in Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others, while dealing with the scope of section 5 of the Limitation Act when Krishna Iyer, J. observed :

I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement of questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the Advice. The Court must of course, see whether, in such cases there is any taint of mala fides or element of reck-lessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application u/s 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers.

The authority referred to above was followed by S.S. Kang, J. in Shri Amar Nath v. Shri Manohar Lal 1971 (2) R.L.R. 21 and it was held :

The litigant in the very nature of things has to rely on the advice tendered by his counsel. He has engaged him for that purpose. If the advice given by the counsel is not reckless; it is not tendered by any mala fide motive, it will be considered to be sufficient cause to condone delay and following that advice if a suit is filed in a wrong court under the bona fide belief than that court has jurisdiction. The time spent in prosecuting that suit in the wrong court shall be excluded while computing the period of limitation.

Turning now to the evidence on record it was the clear testimony of Shri Ram Dayal, Advocate that he had advised the claimants to file the civil suit in question and he further stated that it was not within his knowledge at that time that any Motor Accident Claims Tribunal had been constituted for Ropar. It was with an honest and bona fide belief that the said suit had been filed. It is pertinent to note that in cross-examination Shri Ram Dayal, Advocate deposed that he was still of the opinion that the suit was maintainable and that he had in fact advised the claimants to challenge it in revision before the High Court. The claimant AW 2 Bhagat Ram also deposed that he had filed the Civil suit on the advice of his counsel.

It was obviously under some kind of mistaken belief that counsel advised the claimants to file and prosecute their claim in the civil Court. There is no warrant to assume any mala fide motive or recklessness either on the part of the claimants or their counsel in having sought compensation in the civil Court instead of filing a claim before the Motor Accident Claims Tribunal. It would thus be contrary to the interests of justice in the instant case to defeat the claim of the claimants merely for the reason that they followed the advice given to them by their counsel and in pursuance thereof, they went to the wrong forum.

Mr. G.C. Garg, counsel for respondent No. 3 had also sought to contend that there was a delay in the filing of the claim application after the plaint had been returned to the claimants by the civil court. It would be recalled that the plaint had been returned on April 19, 1971 and the claim application was filed on April 21, 1971. It was at Ropar that the plaint had been returned whereas the claim was filed at Patiala. There is no evidence to show what time of the day it was when the plaint was returned. A day spent in preparation of the claim application and its presentation before the Tribunal on the next day, on the face of it provides ample explanation and justification for the time spent.

For the foregoing reasons, the delay in the filing of the claim application is hereby condoned and this appeal is consequently accepted with costs. Counsel fee Rs. 300/-. The parties are directed to appear before the Motor Accident Claims Tribunal, Ropar on August 18, 1983 for further proceedings in the matter according to law.