Divlsion BensA , ^\ IN THE HON'BLE HIGH COURT OF CHHATnSGARH AT BILASPUI^ ' ^ M.A.fQNo. 14^/ ^ / 2009 APPELLANTS : r •t t\' ^yy ^ ^ 7- ^- Vivekanand Mandal S/o Gopal p^ Mandal, Aged about 43 years, W P«^scn^ 6oyT&^ Vijali Mandal, D/o Vivekanand Mandal, Aged about -15 years, ^ P^^+ ^^' Anjani Mandal, D/o Vivekanand Mandal, Aged about 13 years, A+ ft^w*- 2>o lv' Vinay ^ l^andal S/o „ Vivekanand Mandal,Aged about ^/years, A+ P»<3^n+ 25 y»s. y^Appellant No.2, 3 &f^4 aie ttffiiois through- - natural guardiann- appellant—»0rl,All R/o Ganga Munda Para, Jagdalpur, Distt. Bastar-(C.G.) VERSUS ^^^tfY^ _&, RESPONDENTS ®e^^^:K.SwamyRao S/o Subbarao^o^ p^- ^.^| Anupama Chowk, Jagdalpur, Distt) ^1/ ft. Abc^ ^ y^^ Q ,Bastar-(C.G.) & y/~/ '^ ^ ^ ^jy State of Madhya'Pradesh (Now State of Chhattisgarh), ^°5 Through - Executive Engineer Public Works Department (E8&M), Jagdalpur, Distt. Bastar-(C.G.) 1 ^' MEMO OF APPEAL U/S 173 of MOTOR VEHICLES ACT 12^ l^ A^b- HIGH COURT OF CHHATTISGARH : BILASPUR M^ A. (QNo. 1446 of 2009 Appellants Vivekanand Mandal & others 'Versus Respondents State of Madhya Pradesh (now State of Chhattisgarh) APPEAL UNDER SECTLQN 173 OF THE MOTOR VEHICLES ACT. 1988 DB: Hon'ble Shri Justice I. M. Quddusi & Hon'ble Shri Justice Prashant Kumar Mishra, JJ Shri Prafull Bharat, Advocate with Shri Keshav Devangan, Advocate for the appellants. Shri Vinay Harit, Deputy Advocate General for the respondent/State. ORDER (Oral) ( Passed on this 21st day of February, 2011 ) Per I. M.Quddusi, J. 1. This appeal has been filed against the impugned order dated 1.9.1992, passed by the Second Additional Motor Accident Claims Tribunal, Jagdalpur in Claim Case No. 71/1991, dismissing the claim petition as barred by limitation. 2. The instant appeal was time barred but in view of the order dated 17th Februaiy, 2009, passed by this Court in M.A.No. 179/2002, wherein liberty was given to the appellants to file an appeal against the impugned award/order dated 01.09.1992 passed in appellants' earlier Claim Case No. 71/1991, the delay in filing this appeal was condoned vide order dated 28.04.2010 and this appeal has been listed for hearing before this Court today i.e. 21st Februaiy, 2011. The, brief facts, in nutshell, are that the appellants had filed a claim petition before the Motor Accident Claims Tribunal, Jagdalpur, Baster in the undivided State ofMadhya Pradesh on 14.8.1991. The accident had taken place on 4.2.1990. The following facts regarding the accident are given in the instant appeal that the deceased Prabhati Mandal was going on a bicycle with Samar Mandal on 4.2.1990. When they reached near Gayatri Mandir at Chitrakote Road due to the rash and negligent driving of the driver (Late K. Swamy Rao) of the offending vehicle, bearing registration No. CPZ-6675, an accident occurred because the offending vehicle dashed the cycle, deceased Prabhati Mandal received grievous injuries and succumbed to those injuries. The offending vehicle belongs to the undivided State of Madhya Pradesh. The claimants, being legal heirs of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 4,55,000/- under various heads. The said claim petition No. 71/91 was dismissed by the impugned order on the ground of limitation as at that time sub-section (3) of Section 166 of the Act, 1988 was in existence, which provided as under : "No application for such compensation shall be entertained unless it is made within sbc months of the occurrence of the accident: Provided that the Claims Tribunal may entertain the application after the expiry of the said period of sbc months but not later than twelve months, if it is satisfied that the applicant was prevented by sufflcient cause from making the application in time.w ^^^ %,. ^:^!^^ ^ '"•<& 5 ^^^ ^.aass^*"' • 5. However, the above quoted provision was repealed w.e.f. 14.11.1994. 6. It may be noticed that instead of filing appeal against the rejection order on the ground of limitation in the claim petition No. 71/91 vide order dated 1.9.1992, subsequently two separate claim petitions No. 65/99 and 66/99 were filed on 1.9.1998 in which the award was made on 10.8.1999 but on a review petition filed on behalf of the respondent/State intimating that the first claim petition was dismissed as time barred, therefore, the second claim petition was not maintainable. The Claims Tribunal, holding that the second claim petition was barred by res-judicata, dismissed the claim petition No. 126/2001 vide order dated 27.8.2001 against which an appeal M. A. No. 179/2002 was filed, which was disposed of on 17th February, 2009 giving liberty to the appellants to file appeal against the order dated 1.9.1992 passed in earlier claim Case No. 71/1991 i.e. the firstclaim petition which was rejected as tinie barred. 7. It may also be noticed that the appeal No. M.A. 179/2002 remained pending from 2002 to 17th February, 2009 and as the liberty was given, the instant appeal was field, which was admitted for hearing after condoning the delay in filing the same, as already mentioned above. 8. Now, the question has Come before this Court that at this stage when the provisions of sub-section (3) of Section 166 of the Act, 1988 have been omitted w.e.f. 14.11.1994, canthis Court^in the instant appeal ignore the hurdle of limitation and remit it to the Claims Tribunal for adjudication on merits as there is no r~ •^s^^i, ^' ,-^^.^ limitation prescribed for filing such a claim petition. Further, a question has also arisen that if no claim petition would have been filed during the existence of sub-section (3) ofSection 166 of the Act, 1988 and a claim petition wasfiled after its repealing i.e. 14.11.1994 when no period of limitation was prescribed for filing such a claim petition, the Tribunal was bound to entertain the claim petition and decide the same on ments. 9. In the above regard our attention has been drawn towards the decision of Hon"ble Supreme Court in the case of Dhannalal Vs. D. P. Vija^argiya and others (1996) 4 SCC 652 in which case the principle has been laid down by the Hon'ble Supreme Court taking the illustrative view in paragraph - 7, the Tribunal was directed to entertain the claim petition. Para 7 of decision is reproduced hereinbeow : a7. In this background, now it has to be examined as to what is fhe effect of omission of sub-section (3) of ^ection 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 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(S) 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 field 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 claini petition filed after 14-11-1994 can be rejected by rr: J. the Tribunal on the ground of limitation saying that the period oftwelve months which had been prescribed when sub-section (3) of Section 166 was in force having expired the right to prefer the claiin petition had been extinguished and shall not be revived after deletion of sub-section (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 acciderit 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.It need not be impressed that Pariiament from time to time has introduced amendments in the old Act as well as in the new Act in order to protect the interests of the victims of the accidents and their heirs if the victims die. One such amendment has been introduced in the Aet by the aforesaid Amendment Act 54 of 1994 by substituting sub-section (6) of Section 158 which provides: a 158. (6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer in charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer. w In view of sub-section (6) of Section 158 of the Act the officer-in-charge of the police station is enjoined to forward a copy of information/report regarding the accident to the Tribunal having jurisdiction. A copy thereof has also to be forwarded to the insurer concerned. It also requires that where a copy is made available to the owner of the vehicle, he shall within thirty days of receipt of such copy fonvard the same to 10. ^ the Claims Tribunal and insurer. In this background, the deletion of sub-section (3) from Section 166 should be given full effect so that the object of deletion of the said section by Parliament is not defeated. If a victim of the accident or heirs of the deceased victim can prefer claim for compensation although not being preferred earlier because of the expiry of the period of limitation prescribed, how the victim or the heirs of the deceased shall be in a worse position if the question of condonation of delay in filing the claim petition is pending either before the Tribunal, the High Court or the Supreme Court. The present appeal is one such case. The appellant has been pursuing from the Tribunal to this Court. His right to get compensation in connection with the accident in question is being resisted by the respondents on the ground of delay in filing the same. If he had not filed any petition for claim till 14-11-1994 in respect of the accident which took place on 4-12-1990, in view of the amending Act he became entitled to file such claim petition, the period of limitation having been deleted, the claim petition which has been filed and is being pursued up to this Court cannot be thrown out on the ground of limitation.w In that case the victim/injured filed a claim petition before the Additional Motor Accidents Claims Tribunal, Badwah for corapensation along with an application for condonation of delay on 7.12.1991. The Claims Tribunal vide order dated 18.11.1993condoned the delay but the validity of the said order was challenged by the respondent therein in the High Court of Madhya Pradesh and the High Court by order dated 31.7.1995 set aside the order of the Tribunal saying that in view of the provisions of sub-section (3) of Section 166 of the Act, 1988 the power-of condonation by the Tribunal has been ^i^ withdrawn and any claim must be filed within the period prescribed therein. The High Court further obser^ed that by prescribing the flxed period for filing the petition for claim the intention was that the 'sword of liability of paying conipensation in respect of accident caused by motor vehicle should not be permitted to hover on the head of the person owning the said vehicle and person driving such vehicle'. It was also pointed out that the position was different under the Motor Vehicles Act, 1939, in which sub-section (3) of section 110-A although prescribed a period of sbc months for filing an application for compensation from the date ofthe accident, but vested power in the Tribunal to entertain such application even after the expiry of the said period of sbc months, if the Tribunal was satisfied that fhe claimant was prevented by sufficient cause^from making the application in tinie. According to the High Court, as proviso to sub-section (3) of section 166 of the Act said that Claims Tribunal may entertain the application after the expiry of the said period of sbc months, but not later than fwelve months, any application filed beyond the period of twelve months from the date of the accident cannot be entertained as no discretion had been left with the Tribunal to consider thecircumstances because of which the application for claim could not be filed within the period of twelve months of the occurrence of the accident. In that decision Hon'ble Apex Court in paragraphs 8 and 9 observed as under : <(8. The matter will be different if any claimant having field a petition for claim beyond time which has been rejected by the Tribunal or the High Court, the claimant 11. 12. does not challenge the same and allows the said judicial order to become final. The aforesaid amendingAct shall be of no help to suchclaimant. The reason being that a judicial order saying that such petition of claim was barred by limitation has attained finality. But that principle will not govern cases where the dispute as to whether petition for claim having been filed beyond the period of twelve months from the date of the accident is pending consideration either before the Tribunal, the High Court or this Court. In such cases, the benefit of amendment of sub-section (3) of Section 166 should be extended.w U9. Accordingly, we allow this appeal and set aside the order passed by the HighCourt. We direct the Tribunal to entertain the petition for claim filed on behalf of the appellant and to dispose ofthe same as early as possible in accordance with law. There shall be no order as to costs/' Since the instant appeal is pending before this Court and following the principles laid down by the Hon'ble Apex Court in the case of Dhannalal (supra), and taking into consideration fhat there is no limitation prescribed for flling the claim petition after omission of sub-section (3) of Section 166 of the Act, 1988, we are bound to allow this appeal in part and remit the matter to the Claims Tribunal for deciding on merits. For the reasons stated herein above, we allow this appeal in part, set-aside the impugned order dated 1.9.1992 and remit back the matter to the Tribunal for decision afresh on merits in accordance with the provisions of the Motor Vehicles Act, 1988 as well as the Madhya Pradesh/Chhattisgarh Motor Vehicles Rules, 1994. No order as to costs. 13. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the documents verified etc. Thereafter, the decision shall be made by the Tribunal on merits. 14. The parties shall appear before the Claims Tribunal concerned on 23rd March, 2011. 15. Certified copy of this order may be provided within two weeks. Sd/- LM.Quddusi Judge Thakur Sd/- Prashant Kumar Mishra Judge