IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 MACA.No. 209 of 2005 ---------------------- O.P.(MV) No. 573/1997 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA APPELLANT(S): APPELLANT/2ND RESPONDENT -------------------------------------- THE VAIKOM AUTO RIKSHAW CO-OPERATIVE SOCIETY, VAIKOM, REP. BY ITS SECRETARY. BY ADV. SRI.T.R.HARIKUMAR RESPONDENT(S): PETITIONERS AND RESPONDENTS 1, 3 ----------------------------------------------- 1. JOSEPH ALIAS SHELVY, S/O.JACOB, CHIRAPURATH HOUSE, NEELOOR, KADANAD, PALAI. 2. AUGUSTINE ALIAS SHERIL, DO.DO. 3. JACOB ALIAS SHINIL, DO.DO. 4. LEELAMMA, WIFE OF JACOB, DO.DO. 5. MOHANAN PILLAI, MANTHADIKUNEL, ARUNAPURAM P.O., PALAI. 6. THE ORIENTAL FIRE AND GENERAL INSURANCE COMPANY LTD., KOTTAYAM. ADV. SRI.P.C.HARIDAS FOR R1,2,4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 6-4-2011, THE COURT ON 30-6-2011 DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 209 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 30th day of June, 2011 JUDGMENT Barkath Ali, J. The question, which arises for consideration in this appeal under section 173 of the Motor Vehicles Act, is whether a claim under section 166 of the Motor Vehicles Act, 1988 can be entertained even after the period prescribed under sub-section (3) of section 110A of the Motor Vehicles Act, 1939 (now sub-section (3) of section 166 of the Motor Vehicles Act, 1988) even in respect of an accident which occurred while the Motor Vehicles Act, 1939 was in force. In other words, the question would be what is the effect of deletion of sub-section (3) of section 166 of the Motor Vehicles Act, 1988 by the Motor Vehicles (Amendment) Act, 1994. 2. The facts in brief are these:- The appellant is the Vaikom Auto Rickshaw Co-operative Society, Vaikom, represented by its Secretary who is the second respondent MACA 209/2005 2 in O.P.(MV) No.573 of 1997 on the file of the Motor Accidents Claims Tribunal, Pala. The appellant is the owner of the auto-rickshaw bearing registration No.KLO 5840 which met with an accident occurred on October 25, 1980 at about 1 p.m. near Private Bus Stand, Pala. Deceased Sebastian Jacob was knocked down by the auto-rickshaw while he was about to cross the Kototayam – Erattupetta road. He sustained serious injuries and he succumbed to the injuries sustained at about 7 p.m. on the same day while undergoing treatment in the hospital. The claimants who are the wife and children of deceased Sebastian Jacob filed the O.P. before the Tribunal claiming a compensation of ` 2,34,750/- against respondents 1 to 3 in the O.P., the driver, the owner and the insurer of the offending auto-rickshaw. 3. The first respondent in the O.P., the driver of the offending auto-rickshaw, in his written statement contended that there was no negligence on his part and that the accident happened while the deceased attempted to cross the road suddenly. The second respondent in the O.P, the owner of the offending auto-rickshaw, filed a written statement contending MACA 209/2005 3 that the O.P. is barred by limitation and that the offending auto-rickshaw was not involved in the accident. The third respondent in the O.P., insurer of the offending auto- rickshaw, filed a written statement admitting the policy but contended that the liability is limited to Rs.50,000/-. PW1 was examined and Exts. A1 to A6 were marked on the side of the claimants. RW1 was examined and Exts.B1 and B2 were marked on the side of the respondents. The Tribunal, on an appreciation of the evidence, found that the O.P. was not barred by limitation, that the accident occurred due to negligence of the first respondent in the O.P. and awarded a compensation of ` 2,34,750/- with interest @ 9% per annum from the date of petition till realization. The second respondent in the O.P. has come up in appeal challenging the said award on the ground that the Tribunal should not have condoned the delay of 17 years in filing the O.P. 4. Heard the counsel for the appellant, counsel for the claimants and the counsel for the Insurance Company. 5. The counsel for the appellant argued that the accident occurred on October 25, 1980, that the O.P. was filed MACA 209/2005 4 only on August 18, 1997 i.e., after 17 years and that the Tribunal is not justified in condoning the said delay, as the claim is clearly barred by limitation under sub-section (3) of section 110A of the Motor Vehicles Act, 1939 as well as under sub-section (3) of section166 of the Motor Vehicles Act, 1988. He would submit that the question whether a claim application is barred by time or not has to be considered with regard to the date on which the application has been filed. The counsel for the claimant, on the other hand, supported the award of the Tribunal. 6. The accident happened on October 25, 1980. Therefore, when the accident occurred, Motor Vehicles Act, 1939 (Act IV 1939) was in force. At the time of filing of the application on August 18, 1997 Motor Vehicles Act, 1988 came into force. Sub-section (3) of section 110A of the 1939 Act reads as follows:- “(3) 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 if it is satisfied that the applicant was prevented by sufficient cause from MACA 209/2005 5 making the application in time.” When the Motor Vehicles Act,1988 Act came into force, section 166 was introduced. Sub-section (3) of 166 of the Motor Vehicles Act, 1988 reads thus:- “(3) 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.” Later sub-section (3) of section 166 of 1988 Act was deleted by the Motor Vehicles (Amendment) Act 1994 with effect from November 14, 1994. Consequently now there is no time limit for filing the claim petitions before the Tribunal in respect of any accident. The Apex Court has held in Dhannalal V. Vijayvargiya (1996(2) KLT 283 (SC) that the above amendment will extend to matters where dispute relating to limitation was pending consideration. The principles laid down in the above decision was followed by a Division Bench of this Court in Manoharan V. Poulose (2002 (2) KLT 454) and Janaki V. Achuthan Nair (1998(1) KLT 77). In the light of MACA 209/2005 6 the principles laid down in the above decisions, we hold that after Motor Vehicles (Amendment) Act 1994 (Act 54 of 1994) came in to force, there will be no limitation in filing the claim petition even in respect of accident which occurred while Act IV of 1939 was in force. That being so, in the present case there cannot be any delay in fling the O.P. 7. Even otherwise the third petitioner is a minor at the time of filing the claim petition. Minority is a ground for condoning the delay. Therefore, the Tribunal is perfectly justified in condoning the delay in filing the claim petition. 8. For all these reasons, we confirm the finding of the Tribunal that there is no delay in filing the O.P. and that even if there is a delay, it is liable to be condoned. No other point is argued before us. Therefore, we find no merit in this appeal and the same is hereby dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.