Case: New India Insurance Co. Ltd Vs. Smt. Shanti Misra, Adult

On the 11th September, 1966, occurred an accident in which Shri Amar Nath Misra, husband of respondent No. 1 and father of respondents Nos. 2 and 3, met his death due to collision between his motor-cycle and a truck owned by appellant No. 2 and insured with appellant No. 1. A cause of action accrued to the respondents Nos. 1, 2 and 3 (hereinafter called " the respondents ") to claim compensation as legal representatives of the deceased underthe Indian Fatal Accidents Act, 1855. A suit could be brought under article 82 ofthe Limitation Act, 1963, within two years of the occurrence of the accident. But in the meantime the Government of Uttar Pradesh constituted the Claims Tribunal under section 110 of the Act, by a notification published in the Gazette of the 18th March, 1967. The respondents filed an application under section 110A on the 8th July, 1967. The appellants objected to the jurisdiction of the Tribunal to entertain the application. The Tribunal overruled the objection and held that it had jurisdiction to entertain the application. The appellants filed a writ application in the High Court which was allowed by a learned single judge. In appeal filed by the respondents there was a difference of opinion between the two judges constituting the Division Bench. On reference to a third judge the ultimate view taken by the High Court was that the Tribunal had jurisdiction to entertain this application. Hence, this appeal.

Reasoning: There could not be any debate or dispute that if an accident occurred after the constitution of the Claims Tribunal, the only remedy of the claimant was to file an application under sectionthe plain language of sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum, i.e., a change of adjective or procedural law and not of substantive law. It is a well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise, the general rule is to make itis legitimate to think that the legislature did not think it necessary to affect the pending suits but wanted the cheap remedy to be available is soon as the Tribunal was constituted by the State Governments, in all cases irrespective of the date of the accident, provided the remedy of going to the court was not barred on the date of the constitution of the Tribunal. Then, how is the difficulty of limitation in such cases to be solved is theour opinion taking recourse to the proviso appended to sub-section (3) of section 110A for excusing the delay made in the filing of the application between the date of the accident and the date of the constitution of the Tribunal is not correct. Section 5 ofthe Limitation Act, 1963, or the proviso to sub-section (3) of section 110A of the Act are meant to condone the default of the party on the ground of sufficient cause. But if a party is not able to file an application for no fault of his but because the Tribunal was not in existence, it will not be a case where it can be said that the " applicant was prevented by sufficient cause from making the application in time " within the meaning of the proviso. The time taken between the date of the accident and the constitution of the Tribunal cannot be condoned under theanswer is in the negative and for two reasons :(1) Time for the purpose of filing the application under section 110A did not start running before the constitution of the Tribunal. Time had started running for the filing of the suit but before it had expired the forum was changed. And for the purpose of the changed forum, time could not be deemed to have started running before a remedy of going to the new forum is made available.(2) Even though by and large the law of limitation has been held to be a procedural law, there are exceptions to this principle. Generally the law of limitation which is in vogue on the date of the commencement of the action governs it. But there are certain exceptions to this principle. The new law of limitation providing a longer period cannot revive a dead remedy. Nor can it suddenly extinguish the vested right of action by providing for a shorter period ofhowever, think that giving retrospective effect to the change of law in relation to the forum, in the context of the object of the change, is imperative. That being so the principles aforesaid for overcoming the bar of limitation will bepropos the bar of limitation provided in section 110A(3), one can say, on the basis of the authorities aforesaid, that, strictly speaking, the bar does not operate in relation to an application for compensation arising out of an accident which occurred prior to the constitution of the Claims Tribunal. But since in such a case there is a change of forum, unlike the facts of the said cases, the reasonable view to take would be that such an application can be filed within a reasonable time of the constitution of the Tribunal, which ordinarily and generally, would be the time of limitation mentioned in sub-section (3). If the application could not be made within that time from the date of the constitution of the Tribunal, in a given case, the further time taken in the making of the application may be held to be the reasonable time on the facts of that case for the making of the application or the delay made after the expiry of the period of limitation provided in sub-section (3) from the date of the constitution of the Tribunal can be condoned under the proviso to that sub-section. In any view of the matter, in our opinion, the jurisdiction of the civil court is ousted as soon as the Claims Tribunal is constituted and the filing of the application before the Tribunal is the only remedy available to the claimant. On the facts of this case, we hold that the remedy available to the respondents was to go before the Claims Tribunal and since the law was not very clear on the point, the time of about four months taken in approaching the Tribunal after its constitution can be held to be either a reasonable time or the delay of less than 2 months could well be condoned under the proviso to sub-section (3) of section 110A.