1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR CIVIL MISC. APPEAL No. 53 of 1997 NATIONAL INSURANCE COMPANY V/S SUBHASH DADHICH & ORS Mr. DHIRENDRA PANDEY for BS BHATI, for the appellant / petitioner Mr. SHAMBHOO SINGH, for the respondent Date of Judgment : 18.5.2009 HON'BLE SHRI N P GUPTA,J. JUDGMENT -------- This appeal by the insurer against the award of the Motor Accident Claims Tribunal, Ratangarh dated 29.6.1996, seeks to assail the award on two grounds, first being that the claim petition was barred by time, and the other being about the limit of liability of the insurance company to be Rs. 50,000/- only. In that view of the matter, I recapitulate the relevant facts only, which are, that on 17.6.1989 the claimant was travelling in the bus of Rajasthan State Road Transport Corporation (hereinafter to be referred to as the Bus No.RNP 544). When the bus had started after stopping at octroi-post Dungargarh, the delinquent jeep came from the opposite side, and grazed against the bus, and ran away, as a result of which, the claimant sustained injures on his hand. The appellant is the insurer of the jeep. 2 The learned Tribunal deciding issues No.3 and 4, which related to the questions of claim petition, being barred by time, and about the liability of the insurer, found, that the insurer has not led any evidence in this regard, therefore, the issues were decided against the insurer. Ultimately, an award of Rs.1,74,285/- had been passed against the appellant. Coming to the question of limitation, the accident in this case occurred, as noticed above, on 17.6.1989, and according to the provisions of Section 110A(3), the claim petition was required to be filed within a period of six months of the occurrence of the accident, however, according to the proviso, the Tribunal could entertain the application after expiry of the said period, if it is satisfied that applicant was prevented by sufficient cause from making the application within time. The claim petition in the present case was filed on 30.4.1990. According to the learned counsel for the appellant, since the claim has been filed after the expiry of 6 months, and it has not been pleaded that the claimant was prevented by sufficient cause from filing the claim within time, and therefore, the claim was required to be dismissed as time barred. I have considered the submission, and find, firstly, that in para 14 of the claim petition it has been pleaded by the claimant, that he is the only person in the house, and immediately after accident, 3 he went for treatment, and was hospitalised, extensive surgery was undertaken, still his hand did not recover, and therefore, on 17.6.1989, 4.10.1989 and 13.11.1989 it had to be operated upon at Bikaner and Jaipur, and therefore, concentrating on the treatment of hand, he could not obtain legal advice to file the claim petition within time, and as such, it was prayed that the delay be condoned. In reply filed by the present appellant, it has been pleaded, that only ground given for seeking condonation of the delay is of the claimants undertaking treatment, while the claimant is resident of Bikaner, where-from he could have obtained legal advice, and could file the claim within time. It was also pleaded, that no affidavit has been filed in support of the prayer for condonation of delay. Then in para 18, it was also pleaded, that each days' delay has not been explained by the claimant. I also find on record at page B4/1, an application under Section 5 of the Limitation Act, seeking condonation of the delay in filing the claim petition, on the same very ground, as pleaded in para 14 of the claim petition, and at page B4/2, there is affidavit of the claimant in support of the said application under Section 5 of the Limitation Act. The learned Tribunal vide order dated 30.5.1990 issued notices of the claim, and registered the claim, subject to objection of limitation, and ordered the copy of the application for condonation of delay etc. also to be sent to the defendants along with the 4 notice. Significantly, thereafter, no objection was raised on the side of the defendant, opposing the application under Section 5, Limitation Act, except taking a pleading in the reply to the claim petition. This is one aspect of the matter. The other aspect of the matter is, that as noticed above, the claim petition has been filed on 30.4.1990, and during the interregnum period, the Motor Vehicles Act, 1939, (hereinafter to be referred to as the Old Act) came to be repealed by Section 217 of the Motor Vehicles Act, 1988 (hereinafter to be referred to as the New Act), which came into force on 1.7.1989, and therefore, the present claim petition was filed in accordance with the provisions of Section 166 of the New Act. In this Section 166 also provisions in pari-materia to Section 110A were incorporated, however, w.e.f. 14.11.1994, sub-section (3) came to be omitted altogether from the Section, with the result, that period of limitation prescribed by Section 166, no more remained applicable. The question then arises is, as to whether this deletion is to be applicable to the claim petitions already filed, and pending, and those having been filed after expiry of six months, or to the claim petitions to be filed after deletion of Section 166(3), arising out of the accidents, relating to the period beyond six months of the date of deletion. This question came to be decided by learned Single Judge of this Court, in the case of Smt. Radha Bai & Ors. Vs. Suresh Pal & Ors. reported in 1995(1) RLW (Raj.) 36, wherein it was 5 held that the provision is retrospective in operation. In that case, the claim petition was dismissed as time barred, which order was set aside, and the matter was remanded back to the Tribunal to decide the matter on merits. Then the matter came up for consideration before Hon'ble the Supreme Court also, in case of Dhannalal Vs. D.P. Vjayvargiya & Ors. reported in JT 1996(5) SC 601, and in that case it was held, that amendment would be extended to the matters, where dispute relating to limitation was pending consideration. It was observed, that the matter would be different if any claimant having filed the claim petition beyond time, which has been rejected by the Tribunal, or the High Court, and that was not challenged further, resulting into that judicial order having attained finality, in those cases, the Amending Act is of no help to the claimant, however in other cases, it was held to apply. In that view of the matter, in my view, may be, that the Tribunal was in error in expecting in evidence in this regard, on the side of the insurer, in view of the aforesaid two judgments in Smt. Radha Bai's case, so also in Dhannalal's case, the argument cannot be accepted, that the claim petition is required to be dismissed as time barred. The other contention raised is, that from a look at Ex.4, the insurance cover, it is clear, that the third party risk was covered only upto the statutory limits, which at the relevant time, was Rs.50,000/- in all, and therefore, the appellant 6 cannot be held liable for the entire amount. In this regard, reliance has been placed on judgment of Hon'ble the Supreme Court in New India Assurance Co. Ltd. Vs. C.M. Jaya & Ors. reported in 2002(1) WLC (SC) Civil 179. Learned counsel for the claimant submitted, that this question was not raised before the Tribunal, and therefore, is not open to the appellant to raise it now. I have considered the submission, and find, that the judgment in C.M. Jaya's case is a judgment rendered by Constitutional Bench of Hon'ble the Supreme Court, which also takes into consideration, the earlier judgment in National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore & Ors. reported in (1988)1 SCC 626, wherein it was held, that mere fact that the insurance policy is comprehensive, will not help the respondent, as the comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss, or damage suffered upto the estimated value of the vehicle, but it does not mean, that the limit of liability with regard to third party risk become unlimited, or higher than the statutory liability. For that purpose, a specific agreement is necessary, which was found to be absent in that case, and in my view, the same situation remains here also viz. that a specific agreement undertaking higher liability than the statutory liability is absent in the present case. In that view of the matter, the learned Tribunal was 7 in error in holding the appellant liable for the entire amount. Consequently, the appeal is partly allowed. The impugned award, so far it awards compensation is maintained, but then the liability of the appellant is limited to Rs.50,000/-, instead of Rs.1,74,285/-, as determined by the learned Tribunal. The claimant shall be entitled to recover the rest of the amount, from the defendant No.1. The parties shall bear their own costs. ( N P GUPTA ),J. /tarun/