1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5028 OF 2009 Smt.Asha Rajaram Navale and others .. Petitioners versus Gulab Nanabhau Jagtap and others .. Respondents Mr.Jaydeep S. Deo for petitioners. Mr.Vilas B. Tapkir for respondent no.4. CORAM : A.S.OKA, J. DATE : 26th February 2010 JUDGMENT: . Heard learned counsel for the petitioners and learned counsel for the fourth respondent. Notice for final disposal has been issued by this Court on 10th August 2009. Notice has been duly served to the first to third respondents by publication. The petitioners are the claimants in a claim petition filed under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the said Act"). The claim petition has been filed claiming compensation on account of a fatal accident in which the husband of the first petitioner has lost his life. The respondents are the opponents to the claim petition. It is alleged that the first respondent was driving the offending vehicle and 2 fourth respondent is claiming to be the actual owner of the vehicle. The claim petition has been filed in December 2004. On 15th February 2008, the learned Member of the Motor Accidents Claim Tribunal passed an order dismissing the petition as against respondent nos.1 and 4. An application purporting to be an application under section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") was filed by the petitioners for restoration of the claim petition as against respondents nos.1 and 4. By the impugned order, the learned Member has rejected the said application. The learned Member came to the conclusion that the provisions of Rule 5 of Order IX of the said Code will apply and as a remedy of filing a fresh application was available, inherent powers under section 151 of the said Code cannot be invoked. 2. The learned counsel for the petitioners submitted that considering the scheme of the said Act, strict rules of procedure are not applicable to the proceedings before the Claims Tribunal. He submitted that by virtue of Rule 276 of the Maharashtra Motor Vehicles Rules, 1989 (hereinafter referred to as "the said Rules"), the provisions of the said Code set out therein have been made applicable to the proceedings before the Claims Tribunal so far as the same can be applied. He submitted that therefore all the provisions forming part of Order IX of the said Code cannot be ipso-facto made 3 applicable to the proceedings filed before the Claims Tribunal. He submitted that no limitation has been prescribed for filing the claim petition under section 166 of the said Act. He has placed reliance on certain decisions of the Apex Court as well as this Court in support of the submissions. 3. Learned counsel for the fourth respondent submitted that in view of Rule 276 of the said Rules, Rule 5 of Order IX of the said Code has application to the claim petitions. He placed reliance on a decision of this Court in case of Vishwanath Satwaji Gaikwad Vs. Laxman Abaji Kavale and others (2000[4]-Mh.L.J.-498). He submitted that in the present case as the order of dismissal is passed under sub Rule 1 of Rule 5 of Order IX of the said Code, the law laid down by this Court in case of Vishwanath Satwaji Gaikwad (supra) will apply and the Tribunal was powerless to exercise the powers under section 151 of the said Code. He, therefore, submitted that the Tribunal was justified in rejecting the application made by the petitioners. 4. I have given careful consideration to the submissions. The Apex Court in the case of New India Assurance Co. Ltd. Vs. C.Padma and another ([2003]-7-SCC-713) had an occasion to consider the scheme of the said Act. The Apex Court was dealing 4 with the amendment carried out to the said Act by which the sub- section 3 of section 166 was deleted. The Apex Court dealt with the argument that though sub-section 3 of section 166 may have been deleted, the claim petition will be governed by Article 137 of the Limitation Act, 1963. While dealing with the said submission, in paragraph 12, the Apex Court held thus :- "12. The learned counsel for the appellant next contended that since no period of limitation has been prescribed by the legislature, Article 137 of the Limitation Act may be invoked, otherwise, according to him, stale claims would be encouraged leading to multiplicity of litigation for non-prescribing the period of limitation. We are unable to countenance the contention of the appellant for more than one reason. Firstly, such an Act like the Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. Secondly, it is a self-contained Act which prescribes the mode of filing the application, procedure to be followed and award to be made. Parliament, in its wisdom, realized the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily injuries/die in accidents, by rejecting their claim petitions at the threshold on the ground of limitation, and purposely deleted sub-section (3) of Section 166, which provided the period of limitation for filing the claim petitions and this being the intendment of the legislature to give effective relief to the victims and the families of the motor accidents untrammelled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the legislature. What has been held by the Apex Court is that the said Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. More importantly the Apex Court held that the said Act is a self-contained Act which 5 prescribes the mode of filing the application, procedure to be followed and award to be made. The Apex Court observed that the intent of the legislature is to give effective relief to the victims and to the families of the victims of the motor accidents untrammelled by the technicalities of the limitation. The Apex Court held that such technicalities will defeat the very object of providing for a remedy under section 166. 5. In the case of Owners and Parties Interested in M.V. "Vali Pero" Vs. Fernandeo Lopez and others ([1989]4-SCC-671), the Apex Court has laid down the law as regards the principles governing the interpretation of rules of procedure. The Apex Court observed that the rules of procedure should be considered pragmatically so as to advance the justice. In the case of Rani Kusum (Smt.) Vs. Kanchan Devi (Smt) and others ([2005]6-SCC-705), the Apex Court again considered the scope of procedural rules. Paragraphs 10 to 14 read thus : “10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by ex- press and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court help- less to meet extraordinary situations in the ends of justice. 6 11. The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. 12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The hu- manist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a re- siduary power in the judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar2.) 13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth3.) A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be fol- lowed. (See Shreenath v. Rajesh4.) 14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescrip- tions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”(Emphasis added) 6. What is sought to be invoked by the learned Member of the Tribunal is sub-rule 2 of Rule 5 of Order IX of the said Code. The learned Member of the Tribunal was of the view that the provisions of Order IX will have to be strictly applied to a claim petition under section 166 of the said Code. Sub-rule 1 of Rule 276 of the said Rules read thus : “276. Procedure to be followed by Claims Tribunal in holding enquiries.- (1) The following provisions of the Code of Civil Procedure, 1908 shall, so far as may be, applied to the proceedings before every Claims Tribunal, namely :- (a) Sections 28, 79, [82 and 89]; 7 (b) In the First Schedule, Order V, Rules 9 to 13 (both inclusive) and 15 to 30 (both inclusive), Order VI, Rules 4, 5, 7, 10, 11, 16, 17 and 18 and Order VII, Rule 10, Order VIII, Rules 2 and 5 (both inclusive), 9 and 10, Order IX, Order XI, Rules 12 and 15 (both inclusive), 17 to 21 (both inclusive) and 23, Order XII, Rules 1, 2, 3-A, 4, 7 and 9, Order XIII, Rules 3 to 10 (both inclusive), Order XIV, Rules 2 and 5, Order XVI, Order XVII, Order XVIII, Rules 1 to 34 (both inclusive), 10 to 12 (both inclusive) and 15 to 18 (both inclusive), Order XIX, Order XX, Rules 1 to 3 (both inclusive), 8, 11 and 20, Order XXI, Order XXII, Rules 1 to 7 (both inclusive) and 9, Order XXIII, Rules 1 to 3 (both inclusive) and 15 to 18 (both inclusive), Order XXVII, Order XXVIII, Order XXIX, Order XXX, Rules 1, 3 to 8 (both inclusive), Order XXXVII, Rules 1 to 10 (both inclusive), and Order XXXIX, Rules 1 and 3 to 5 (both inclusive). Insofar as the Act and these rules make no provision or make insufficient provision, the relevant provisions of the Code of Civil Procedure, 1908, shall, so far as may be, apply to the proceedings before the Claims Tribunal.” Therefore, the provisions of the Rules which are incorporated in clause (b) of sub-rule 1 cannot be mechanically applied to the proceedings before the Claims Tribunal. The Rules can be applied in so far as the same may be made applicable. The decision of this Court in case of Vishwanath (supra) holds that sub rule 2 of rule 5 of Order IX of the said Code provides for a remedy to bring a fresh suit subject to the law of limitation. The view taken by this Court is that if power under section 151 of the said Act is invoked, the same may defeat sub-rule 2 inasmuch as remedy of filing a fresh suit is available, provided, the same is within the limitation on the date on which the same is brought. Thus, when a litigant brings a fresh suit under sub-rule 2, he will not be entitled to exclusion of time spent in 8 the earlier suit which is dismissed under sub-rule 1of Rule 5 of Order IX of the said Code. This Court held that by invoking sub- section 151 of the said Code, after expiry of period of limitation which may be available for bringing a fresh suit under sub-rule 2, the Court cannot defeat the express provision of the said Code inasmuch as the power under section 151 of the said Code cannot be used to defeat the express provisions of the said Code. 7. As far as claim petitions under section 166 are concerned, the law provides for no limitation and as held by the Apex Court, Article 137 of the Limitation Act, 1963 cannot be invoked. In the circumstances, embargo of limitation under sub-rule 2 of Rule 5 of Order IX of the said code will not apply to the proceedings of claim petitions under section 166 of the said Act. As there is no prescribed period of limitation provided for bringing a fresh claim petition, the power under section 151 of the said Code can always be invoked by the Tribunal even if the order of dismissal is passed under sub-rule 1 of Rule 5 of Order IX of the said Code. The provisions of the said code forming part of clauses (a) and (b) of sub-rule 1 of Rule 276 can be applied to the claim proceedings under the said Act only to the extent to which the same can be applied. As held earlier, sub-rule 2 of Rule 5 of Order IX of the said Code cannot be applied to the proceedings of claim petition under section 166 of the said Act and, 9 therefore, there was no embargo on the powers of the Claim Tribunals under section 151 of the said Code. Therefore, the view taken by the learned Member of the Tribunal is erroneous and the petition must succeed. Though there was a delay in effecting service of notice to the first and fourth respondents, there was no embargo on the power of the Tribunal exercising power and to restore the claim petition as against the said respondents. Therefore, the application at Exhibit 27 deserved to be allowed. 8. Hence, I pass following order : : O R D E R : (a) The impugned order dated 28th January 2009 is quashed and set aside and the application made by the petitioner at Exhibit-27 is hereby allowed; (b) The writ petition is allowed in above terms with no order as to costs; (c) Respondent No.4 is directed to appear before the Claims Tribunal on 17th April 2010. (A.S.OKA, J.)