Sadiq and Another vs Jangsher Singh and Others

V.K. Jhanji, J.—At the request of the counsel, FAO is taken on Board.

Counsel head on merits.

This appeal is directed against the award of the Motor Accident. Claims Tribunal, Jagadhari whereby the claim petition filed by the appellants under Sections 166, 140 and 141 of the Motor Vehicles Act, 1988, has been dismissed.

Appellants who are the parents, filed claim petition for claiming compensation on account of death of their son, Sat Pal, who died as a result of an accident caused due to negligence of the driver. On filing of the petition, notice was issued to the respondents. Respondents No.1 & 2 alone resisted the claim made by the appellants. Respondent No.1 apart from taking objection with regard to the delay in filing the petition, also stated that the accident took place due to negligence of the deceased who dashed his motor-cycle against the car. The Insurance Company in its separate written statement not only stated that the car was being driven by Jangsher Singh without a valid driving licence, but also stated that the claim petition was time barred. On the pleadings of the parties, the following issues were framed:-

Whether the accident in question and the resultant death of Sat Pal took place due to rash or negligent driving of car No. HYE-270 driven by respondent No.1 as alleged ? OPP.

Whether the claimants are the only legal representatives of the deceased ? OPP.

To what amount of compensation the claimants are entitled to and from whom? OPP.

Whether the petition is bad for non-joinder of necessary parties ? OPR.

Whether the car in question was being driven without valid driving licence and in contravention of the terms of policy ? OPR-3.

Whether the petition is time barred ? OPR-3.

Relief.

The learned Tribunal decided all issues, except issue No.6, in favour of the appellants. Since finding with regard to the petition being barred by time was given against the appellants, petition was dismissed by the learned Tribunal.

In this appeal, the only issue is in regard to limitation. Sub-section (3) of Section 166 of the Act which came into force w.e.f. 1.7.1989 provided "No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident. Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time." In this case, accident took place on 14.5.1989 whereas the claim petition was filed on 10.10.1990, i.e. after a period of twelve months. The learned Tribunal held that the appellants are not entitled to condonation of delay merely on the ground of shock and illiteracy. As seen, proviso to Sub-section(3) of Section 166 of the Act provides that claim petition can be preferred after the expiry of period of six months but not later than twelve months from the date of accident even if sufficient cause is shown. Sub-section (3) of Section 166 of the Act has been omitted by Section 53 of the Motor Vehicles (Amendment) Act, 1994, which came into effect on 14.11.1994. The effect of the Amending Act has been considered by the Apex Court in Dhannalal Vs. D.P. Vijayvargiya and Others, . Their Lordships of the Supreme Court have hold "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 Sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose an accident had taken place 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 subsection (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."

In view of the decision of the Supreme Court Dhanna lal''s case (supra), the finding of the Tribunal that the claim petition filed on 10.10.1990, for an accident which took place on 14.5.1989, is barred by time is to be set aside. It is so ordered. Consequently, the appeal is allowed. Appellants are held entitled to compensation of Rs.43,200/r as determined by the Tribunal. The liability of respondents 1 to 3 shall be joint and several to pay a compensation to the appellants. Appellants shall also be entitled to interest at the rate of 12 per cent per annum from the date of filing the claim till the date of recovery. No costs.