National Insurance Co. vs Kaka Ram and Others

V.K. Gupta, J.—This appeal is directed against the award of Motor Accidents Claims Tribunal Jammu pronounced on 28th July 1987,

whereby the Tribunal awarded an amount of Rs. 65000/- in favour of the deceased respondent Kaka Ram for the injuries sustained by him in the

course of a motor accident. The deceased respondent has since been substituted by his legal heirs by an order of this Court passed separately on

12-12-1990 in C.M.P. No. 405/90.

During the course of the hearing of this appeal, various preliminary objections about the maintainability of the appeal were taken by Mrs. Seema

Gupta, learned counsel appearing for the legal heirs of the deceased-respondent Kaka Ram. Since this appeal can be and is being disposed of on

one solitary ground, I need not consider the other grounds raised by Mrs. Gupta.

The maintainability of this appeal has been challenged by Mrs. Seema Gupta on the ground that it was a time-barred appeal, because the appeal

was filed beyond the period of limitation prescribed therefor. Admittedly, the period of limitation prescribed u/s 110-D of the Motor Vehicles Act

1939 is 90 days from the date of the award. Section 110-D is reproduced here under for ready reference : --

110-D Appeals.-- (1) Subjects to the provision of Sub-section (2), any person aggrieved by an award of a claims Tribunal may, within ninety

days from the date of the award, prefer an appeal to the High Court.

Provided that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was

prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than two thousand rupees.

The award was pronounced on 28-7-1987 and the appeal was preferred on 3-11-1987, i.e., after a period of 97 days from the date of the

award.

Mr. Thakur, learned counsel appearing for the appellant, has submitted that the appeal is within time, as according to him the period spent for

obtaining the certified copy of the award has to be excluded while computing the period of limitation and because the period spent for obtaining the

copy of the award was more than seven says, and if this is excluded, the appeal has been filed before the expiry of 90 days and is therefore well in

time. Because the Motor Vehicles Act 1939 is a special law and a complete Code and because Section 110-D of the Act itself prescribed the

period for filing the appeal, Section 29 of the Limitation Act to which a reference was made by Mr. Thakur during the course of his argument is not

attracted in this case and because of non-applicability of Section 29 of the Limitation Act, Section 12 is also inapplicable and, therefore, the period

spent for obtaining the copy of the award is not per se to be excluded while computing the period of limitation. The point had specifically arisen for

consideration in this court in the case titled Union of India v. Manzoor Ahmed, reported in 1982 KLJ 79 ; AIR 1982 J&K 6 and a Division Bench

of this Court while dismissing the appeal as time-barred had clearly held that Section 29 of the Limitation Act and correspondingly therefore

Section 12, were inapplicable to the appeals preferred u/s 110-D of the Motor Vehicles Act. The following observations of the Division Bench are

extracted with advantage for ready reference:--

That the Motor Vehicles Act is a special Act within the meaning of Section 29 of the Limitation Act is not a matter which is in dispute, as

indeed it cannot be. The basic condition for the applicability of Sub-section (2) of Section 29 of the Limitation Act, however, is that there has to be

difference"" between the period of limitation as prescribed in the Special law and the one prescribed therefore by the 1st Schedule of the Limitation

Act. ""By a legal fiction created u/s 29 of the Limitation Act, the period of limitation provided under the special law shall then be deemed to be the

period provided under the first Schedule for the purpose of reckoning limitation u/s 3 of the Act."" (See State of J. & K. v. Sh. G. S. Baroca 1978

JKLR 147 : AIR 1978 J&K 64. Since, there is a no specific period of limitation prescribed for filing an appeal against an award of the Motor

Accident Claim Tribunal in the First schedule of the Limitation Act, and further since there is no difference between the period of limitation

prescribed u/s 110-D of the Act and Article 156 of the Limitation Act, Subsection (2) of Section 29, on its plain reading, would not be attracted

and Sub-clause (1) of Sub-section (2) of Section 29 would not come into play.

The aforesaid Division Bench judgment of this Court came to be re-considered by A Full Bench of this Court in the case of Managing Director

v. Mst. Fatima Begum, reported in 1989 KLJ 51. The Full Bench upheld the principles of law enunciated by the Division Bench and re-confirmed

that neither Section 29 nor, therefore, Section 12 of the Limitation Act were applicable to the appeals preferred u/s 110-D of the Motor Vehicles

Act. In para 8 of the judgment, the Full Bench observed as under:--

After hearing the learned counsel for the parties we are of the opinion that there is no conflict between the Division Bench Judgment of this

court reported in 1982 KLJ 79 : AIR 1982 J&K 6 and the other authorities cited at the Bar. In all the aforesaid cases it was conceded that the

High Court had the jurisdiction to entertain on appeal after the expiry of 90 days if satisfied that the appellant was prevented by 'sufficient cause'

for preferring the appeal in time. The provisions of Section 12(2) of the Limitation Act even though not specifically made applicable to the appeals

filed under the provisions of the Act are in fact based upon the principles of justice, equity and good conscience which have been codified as

judicially recognised grounds of sufficient cause. It follows, therefore, that even though, strictly speaking provisions of the Section 12(2) of the

Limitation Act are not applicable yet the principle underlying the section has to be taken into consideration while determining the ""sufficient cause

within the meaning of Section 110-D of the Act. The appellant, therefore, as already held in 1982 KLJ 79 : AIR 1982 J&K 6 would be entitled to

commutation of the period for which he was prevented by ""sufficient cause"" for preferring an appeal in time. As no appeal could be filed without

the copy of the judgment of the Tribunal, the appellant if satisfied the Court that he was not supplied the copy of the judgment despite his efforts,

would be entitled to the commutation of such period as is permissible for obtaining a copy, for the purposes of Limitation in filing the appeal after

the expiry of 90 days provided u/s 110-D of the Act.

The time spent in getting a copy of the judgment can, therefore, be a reason for delay in filing the appeal and as held by the aforesaid two

judgments, the time spent for obtaining a copy of the Award can be excluded while considering the existence of a ""sufficient cause"" for filing an

appeal beyond the period of limitation, if the court is satisfied that the appellant was prevented by a ""sufficient cause"" for preferring the appeal in

time and if the appellant pleads the delay in getting the copy of the judgment as ""sufficient cause"" for the late filing of the appeal, the period can be

excluded while computing the period of limitation for filing the appeal. The contention of Mr. Thakur that the appellant was not required to plead

any ""sufficient cause"" at all and that per se the period spent for obtaining the copy as to be excluded, has to be squarely rejected on the basis of the

aforesaid principles of law.

In the present case we have to look into and examine as to whether the appellant was prevented by ""sufficient cause"", on account of the delay in

getting the copy of the award in preferring the appeal in time. First of all there is no application for condonation of delay moved by the appellant

seeking the exclusion of the time. In the memo of appeal also the appellant has not made any mention about the late filing of the appeal nor is it

seeking the condonation of delay. We have therefore, no explanation whatsoever from the appellant whereby it could even be suggested or

inferred that the appellant was prevented, for any reason whatever, in filing the appeal in time. It was for the appellant to have come forward, either

at the time of filing of appeal or at any time even subsequently with a prayer for condonation of delay by advancing sufficient cause, but because

the appellant has not done that, this Court cannot be of any help to the appellant in condoning the delay in filing the appeal. Even otherwise, the

record shows that the copy of the award was obtained by the appellant on 7-9-1987 but the appeal was filed on 3-11-1987, i.e. almost 2 months

after it obtained the certified copy of the award. As already noticed there is no explanation whatsoever either in the appeal itself or anywhere else

as to what the appellant was doing between 7-9-1987 to 3-11-1987 and as to why it was prevented from filing the appeal for so long as 3rd

November 1987, a date much beyond the prescribed period of limitation. In the absence of any explanation by the appellant, therefore, it is held

that the appellant is not entitled to the condonation of delay in filing the appeal and that the period Spent in obtaining the copy of the award has not

to be excluded while computing the period of limitation for filing the appeal.

The appeal, therefore, is held to be time-barred and is as such dismissed with costs assessed at Rs. 1000/-, along with all connected C.M. Ps.

and the interim directions shall stand vacated forthwith.