IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.11.2008 CORAM: THE HON'BLE MR.JUSTICE R.SUDHAKAR CMANO.638 OF 2006 AND CMP.NO.2656 OF 2006 The Managing Director Dheeran Chinnamalai Transport Corporation ltd., Tiruchirappalli. ...Appellant/1st Respondent Vs. 1.C.Kanagaraj 2.Bangaru 3.C.Palanivel 4S.Saraswathi ....Respondents/Petitioner/ Respondents 2 to 4 Civil Miscellaneous Appeal filed U/sec.173 of M.V.Act 1988 against the Judgment and award made in MCOP.No.629 of 2004 dated 13.10.2004 on the file of the Motor Accidents Claims Tribunal (Principal District Judge, Namakkal). For Appellant : Ms.Geetha for M/s Rajnish Pathiyil For Respondents: Mr.R.Kannan for Mr.M.Aniruthan ---- J U D G M E N T The transport Corporation has filed this appeal challenging the award. 2. The brief facts of the case is as follows: The accident in this case happened on 12.2.1989. The deceased Chinnabommanaicken aged 38 years, a milk supply agent was travelling in a bicycle towards Namakkal. He was hit by the appellant https://hcservices.ecourts.gov.in/hcservices/ transport Corporation bus and in that accident, he died on the spot. Originally, his wife by name Bangaru filed a claim for compensation on 12.11.1990 which was not numbered due to delay of 18 months. Thereafter, an Interlocutory application was filed in I.A.No.1495/1990 for condoning the delay. The said application was dismissed on 19.4.1991. Challenging the said order, AAO.No.458/1992 was filed before this Court and the learned Single Judge by order dated 27.9.1993, dismissed the appeal holding that the Tribunal has no jurisdiction to condone the delay for a period of more than six months and as against the same, LPA.No.184 of 1994 was filed by the Mother and three children which confirmed the order of the learned Single Judge by holding that the claim petition was barred by limitation. The order in LPA was passed on 27.4.1995. In the meanwhile, the Motor Vehicles Act came to be amended with effect from 14.11.1994 whereby Section 166(3) of Act 1988 has been omitted. The period of limitation prescribed was deleted. 3. The Son C.Kanagaraj who was a minor earlier became major in the year 1996. On attaining majority, he filed a claim petition on 1.3.1996. The said claim petition was taken on file. A counter affidavit was filed by the present appellant referring to the earlier order passed by the learned Single Judge of this Court as affirmed by the Bench in LPA on 27.4.1995. 4. Based on the rival submissions, the following points were framed by the Court below . 1. Whether this petition is not maintainable in view of the earlier petition filed by the mother for herself and on behalf of the minor children? 2. Whether the present petition is barred by the principles of res judicata? 3. Whether the accident has occurred due to the rash and negligent driving of the driver of the bus belonging to the 1st respondent? 4. Whether the petitioner is entitled to get the amount as compensation from the 1st respondent? 5. To what any other relief? As far as point Nos.1 and 2 are concerned, the Court below on the basis of the decision of the Supreme Court in Danalal Vs. D.P. Vijayvargiya (1997-1-L.W 190 = 1996 A.C.J.1013) and the decision of the learned Single Judge reported in A.Tamilselvan Vs. M/s Senthil Construction reported in 2001 3 LW 508, held that, in view of the deletion of Section 166(3) of Act, 1988, with effect from 14.11.1994, the claim by the minor on attaining majority is maintainable. The Court below clearly held that during the pendency of LPA.No.184 of 1994 challenging the order in I.A.No.1495 of 1990 affirmed by the single Judge before the Court, the amendment to the https://hcservices.ecourts.gov.in/hcservices/ Act had come into force and therefore the question of limitation would not arise. On that premise, the claim was accepted. Consequently, the Tribunal granted compensation for a sum of Rs.1,50,000/- with interest at 9% p.a.. The quantum of compensation is not disputed by the counsel for appellant. 5. The contention of the learned counsel for the appellant is that the mother had already prosecuted the case and it has reached finality by the dismissal of the LPA on 27.4.1995. The son who was a minor on attaining majority cannot re-agitate the same. 6. In 2001 3 LW 508, K.P.Sivasubramanian,J (as he then was) in the above said decision has considered the right of the minor on attaining majority and the same is extracted here under for reference: "10. In Sukh Rani v. Himachala Road Trans.Corpn. (1989 A.C.J..312) Punjab and Haryana High Court held that where a widow and minor daughter had filed the claim petition after the prescribed period of limitation and the Tribunal dismissed the petition as time barred, and in appeal, it was held that the minor daughter could file the claim petition, within six months of attaining majority. 11 In Madhu V.Narendra Kumar (1990 A.C.J.158) the Madhya Pradesh High Court held that the claim for injuries sustained by a minor filed through her father as natural guardian four days after the period of limitation, it was held that no question of limitation would arise in the case of minor since the minor could have filed an application even after attaining the majority. 12. In Jagvir Singh Vs. Dilawatr Singh (1995 A.C.J. 585), Punjab and Haryana High Court dealt with a situation where after the death of the father, the claimant's mother, grandfather and grandmother passed away one after another, within a short span of six months. The guardianship of the minor was changed from time to time and in the circumstances, the claim petition could not be filed in time. It was held that the delay in filing the claim petition was not intentional and the claimant was handicapped to file the claim petition being a minor". In the above said case, learned Single Judge allowed the appeal by permitting the claimant to agitate the claim on attaining majority, however with a rider that there will be no interest for the intervening period. 7. In view of the pendency of LPA at the time of amending https://hcservices.ecourts.gov.in/hcservices/ the Act,1994 which came into effect on 14.11.1994 and the claim petition filed by the minor on attaining majority, the question of limitation cannot be set against the present respondent/claimant.This plea of the claimant is fortified by the decision of the Apex Court in Dhananlal's case cited above .Para 7 which is relevant is set out hereunder: "7. In this background, now it has to be examined as to what is the effect of omission of sub-section (3) of S.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 n the Amending Act to show that benefit of deletion of sub-Section (3) of S.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 S.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 S.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 has been prescribed when sub-section(3) of S.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 S.166 w.e.f. 14.11.1994? According to us, the answer should be in negative When Sub-Section(3) of S.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 S.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 interest of the victims of the accidents and their heirs if the victims die." 8. In the light of the decision of the Apex Court in 1997-1- LW 190 = 1996 ACJ 1013 and the fact that the amendment Act has already come into force prior to the final disposal of the LPA, the https://hcservices.ecourts.gov.in/hcservices/ respondent/claimant will be entitled to the benefit of the amended provision of Motor Vehicles Act and the claim therefore is maintainable in law. The present case also falls under the category of pending case as on the date of the amendment (i.e.) 14.11.1994. 9. The appellant's department's interest has also to be protected, as the claim is after a long period of time. The claimant will not be justified in seeking interest for the period up to the date of claim petition i.e. 1.3.1996. It is clarified that the interest will be from 1.3.1996 till date of deposit. There will be no interest for the earlier period. The plea of the counsel for the appellant on this ground is accepted and accordingly the order of the tribunal stand modified, insofar as interest is concerned. 10. On deposit of the award amount with interest from 1.3.1996 till deposit, the claimant is entitled to withdraw the amount. If any amount in excess deposit can be withdrawn by the appellant. The Civil Miscellaneous Appeal is ordered accordingly. No costs. Consequently, CMP.NO.2656 of 2006 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1.The Motor Accidents Claims Tribunal (Principal District Judge, Namakkal). 2.The Section Officer, VR Section, High Court, Madras. +1cc to Mr.M.Aniruthan, Advocate Sr 62020 GV (CO) km/2.2. CMA.NO.638 OF 2006 AND CMP.NO.2656 OF 2006 https://hcservices.ecourts.gov.in/hcservices/