The Oriental Insurance Co. Ltd. vs Smt. Ratansri & Others
2014 Latest Caselaw 7609 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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AFR
 
Court No. - 33  
 

 
Case :- FIRST APPEAL FROM ORDER No. - 373 of 2006
 

 
Appellant :- The Oriental Insurance Co. Ltd.
 
Respondent :- Smt. Ratansri & Others
 
Counsel for Appellant :- Nagendra Kumar Srivastava
 
Counsel for Respondent :- R.K.Purwal
 

 
Hon'ble Shashi Kant Gupta,J.

This   appeal under Section 173 of Motor Vehicles Act ,1988 has been preferred   by the  appellant  Oriental Insurance Company  against the   judgement and  award dated  12.9.2005 passed by  the Motor  Accident  claims Tribunal/ Addl.District Judge, Court no.1, Etawah awarding  a sum of Rs.  3,21,500/-  as compensation  along with interest   @ 6% per annum  from the date of  presentation  of  the claim petition  i.e. 2.4.2002 till the date of  payment.

The  brief   facts of   the case giving  rise to this appeal  are  as follows:

The  deceased  Ganga Ram  (husband of  claimant respondent no. 1)  had  gone to Bhogaon  market  on  1.6.1990  for purchasing  cattle fodder  on his  Bicycle      and while   he along with his  two brothers namely  Gopal Das  and Pyare Lal , who  were   also on their bicycles ,  was  returning  from Bhogaon market  and reached  near brick-kiln  of Rajendra Singh Yadav  on Bhogaon- Kurawali road,  a Truck  (NO.  DIG-3991), hit  the deceased  from behind  and was    crushed to death.  The deceased   was  earning  a sum of Rs. 5500/- per month by running a business of milk dairy  . The claimants  respondents   filed  a claim  petition before the Tribunal.

The appellant ( Insurance company) filed  written statement  denying the   claim of the  claimant respondents  stating therein that  the   deceased did not die in the motor  vehicle accident  and the claim petition   was barred by limitation  because the   accident had taken place  in the year 1990 and at that time  the    period of  presenting the claim was only  six  months  . It was further stated therein that since the driver , who was plying the offending vehicle , was not having valid licence, the vehicle owner violated the terms and conditions of the Insurance Policy, therefore, the Insurance Company is not liable to indemnify the award , if any.

The Tribunal, after assessing  the   evidence led by the respective parties,  decided  the  claim of the   respondents    by its  judgement and award dated 12.9.2005   whereby  it  awarded   a  sum of Rs.  3,21,500/-  as compensation  along with interest   @ 6% per annum  from the date of  presentation  of  the claim petition  i.e. 2.4.2002 till the date of  payment. Hence, the present  appeal .

Learned counsel for the appellant submits that the Tribunal while passing the impugned award erred in law completely overlooking the provisions of the old Motor Vehicles Act applicable on the relevant date of the accident. It was further submitted that the  accident     had  allegedly taken place  on  1.6.1990  and  the claim petition  was filed on  22.4.2002; the  claim petition was barred   under the  old  Act; as per the old Act there was a limitation of six months for filing the claim petition and  the same could not have been revived  under the new Act and on this  ground    alone, the  claim petition should  have  been  dismissed. He further submitted that the Tribunal has illegally and wrongly shifted the burden of proof on the appellant Insurance Company because the burden to furnish the particulars of the driving licence is on the vehicle owner and until and unless the vehicle owner furnishes the particular of the driving licence, the insurance company can not be held liable to discharge his burden.

Per contra,  learned counsel for the   claimant respondents  supporting the impugned award submitted that the Tribunal has not committed any illegality or irregularity in passing the impugned order and the said order is just and proper. He further submitted that the Tribunal has passed the impugned award taking into consideration the entire evidence led by the parties including the certified copies of the F.I.R., Site Plan, Inquest Report, Post Mortem Report, Technical Examination Report and the charge sheet.

He further submitted that Sub-section (3) of Section 166 of the Motor Vehicles Act had been omitted by Act 53 of  the Motor Vehicles (Amendment) Act 1994 whereby the limitation period of six months prescribed under the old Act was deleted w.e.f 14.11.1994 and as such, according  to the amended Act, there is no limitation prescribed for filing claim petitions before the Tribunal in respect of any accident w.e.f. 14.11.1994. He further submits that in view of the settled principles of law, the burden to prove as to whether the driver was having valid licence on the date of the accident lies with the Insurance Company which has not been discharged by it , particularly when the insurance company itself has admitted that it had given an application (23Ga) at the given address of the truck driver and he was not traceable nor the vehicle owner supplied the driving licence or its particulars to the Insurance Company , as such , now at this stage, it does not lie in the mouth of the Insurance Company to say that the burden of proof does not lie on it . He further submits that since the insurance company failed to discharge its duty, the Tribunal has rightly held that the driver of the offending vehicle was having valid licence at the time of the accident.

Heard the learned counsel for the parties and perused the record.

The only question to be decided by this court is whether the claim petition was barred by limitation as it was presented after 12 years of the date of accident and as to whether the driver of the vehicle was having valid licence on the date of the accident or not?

To answer   the aforesaid contention of the   appellant,  it would be useful to  have a quick glance over the changes that have taken place in the Motor Vehicles Act from time to time. The old Act of 1939 has been repealed and since then there were a number of changes in the Motor Vehicles Act. In the old Motor Vehicles Act, 1939 , sub-section (3) of Section 110-A  of the said Act  provides as under:

"110-A. (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 making the application in time."

The 1939 Act was repealed w.e.f 1.7.1989. The period of limitation was provided under sub-section (3) of Section 166 of the new Act which runs as under:

"166.(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."

The only difference that has been brought about in between the old Act and the new Act is that the Tribunal may entertain an application after the expiry of period of six months but not later than twelve months. In the instant case, at the time when the claimant respondents had filed claim petition on 22.4.2002, the situation was completely different. Sub-section (3) of Section 166 of the Act had been omitted by Act 53 of 1994 w.e.f. 14.11.1994, as a result thereof now there is no limitation prescribed for filing claim petitions before the Tribunal in respect of any accident w.e.f. 14.11.1994.

In support of his contention, learned counsel for the claimant respondents relied upon the law laid down in Dhannalal vs. D.P.Vijayvargiya, (1996) 4 SCC 652.

The Apex Court, in the case of Dhannalal ( supra) after examining the effect of the various amendments that have been brought about in the Act, held in paragraphs 6 and 7 as under:-

6."Before the scope of sub-section (3) of Section 166 of the Act is examined, it may be pointed out that the aforesaid sub- section (3) of Section 166 of the Act has been omitted by Act 53 of the Motor Vehicles (Amendment) Act, 1994 which came in force w.e.f. 14.11.1994. The effect of the Amending Act is that w.e.f. 14.11.1994 there is no limitation for filing claims before the Tribunal in respect of any accident. It can be said that Parliament realised the grave injustice and injury which was being caused to the heirs and legal representatives of the victims who died in accidents by rejecting their claim petitions only on ground of limitation. It is a matter of common knowledge that majority of the claimants for such compensation are ignorant about the period during which such claims should be preferred. After the death due to the accident of the bread earner of the family, in many cases such claimants are virtually on the streets. Even in cases where the victims escape death some of such victims are hospitalised for months if not for years. In the present case itself the applicant claims that he met with the accident on 4.12.1990 and he was being treated as an indoor patient till 27.9.1991. According to us, in its wisdom, Parliament rightly thought that prescribing a period of limitation and restricting the power of the Tribunal to entertain any claim petition beyond the period of twelve months from the date of the accident was harsh, inequitable and in many cases was likely to cause injustice to the claimants. The present case is a glaring example where the appellant has been deprived by the order of the High Court from claiming the compensation because of delay of only four days in preferring the claim petition.

7."In this background, now it has to be examined as to what is the effect of omission of sub-section (3) of Section 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 (3) 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 filed 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 claim petition filed after 14.11.1994 can be rejected by the Tribunal on the ground of limitation saying that the period of twelve months which had been prescribed when sub-section (3) of Section 166 was in force having expired the right to prefer the claim 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 accident 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 Parliament 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 Act by the aforesaid Amendment Act 54 of 1994 by substituting sub-section (6) of Section 158 which provides:

"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."

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 forward the same to 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."

The ratio laid down in Dhannalal's case (supra) applies with full force to the facts of the present case. When the claim petition was filed in the year 2002, sub- section (3) of Section 166 of the Act had already stood omitted. Thus, the Tribunal was bound to entertain the claim petition without taking note of the date on which the accident took place.

Learned counsel for the appellant submitted that Dhannalal's case does not consider Section 6(b) of the General Clauses Act and therefore, needs to be reconsidered. I do not accept the submission so made. Section 6(b) of the General Clauses Act undoubtedly provides that the repeal of a provision will not affect the continuance/operation of any enactment so repealed and in operation at the time of repeal. However, this is subject to "unless a different intention appears". In Dhannalal's case the reason for the deletion of sub-section (3) of Section 166 has been set out. It is noted that the Parliament realized the grave injustice and injury caused to heirs and legal representatives of the victims of accidents if the claim petition was rejected only on ground of limitation. Thus "the different intention" clearly appears and Section 6A of the General Clauses Act would not apply.

Lastly, the learned counsel for the appellant 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. This court is unable to countenance with the contention of the appellant for more than one reason. Firstly, such an Act like 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 mode of filing the application, procedure to be followed and award to be made. The Parliament, in its wisdom, realised 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, purposely deleted sub-section (3) of Section 166, which provided the period of limitation for filing the claim petitions and this being the intention of the Legislature to give effective relief to the victims and the families of the motor accidents untrammeled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intention of the Legislature.

The law laid down in the aforesaid case of Dhannalal (supra), was also followed by the Apex Court in New India Assurance Co. Ltd. Vs. C.Padma : Laws(SC)2003-9-113 wherein it has been held that the Motor Vehicle Act being a beneficial Legislation, self contained technicalities of limitation under Article 137 of Limitation Act cannot be invoked to defeat Legislative Intendment.

In view of the law laid down in the aforesaid cases, I find that the the tribunal did not commit any illegality while deciding the issue no. 5 holding that the claim petition was filed well within the time because the limitation prescribed by the old Act was omitted and when the claim petition was presented in the year 2002, there was no limitation to present the said petition.

So far as the second question regarding holding of valid licence by the driver of the offending vehicle is concerned, in this connection reference may be made to issue no. 3 , which was decided by the Tribunal while passing the impugned order and after going through the findings, I find that the said issue was also decided relying upon various case laws as well as the material brought on record including various other relevant documents viz. certified copies of the F.I.R., Site Plan, Inquest Report, Post Mortem Report, Technical Examination Report and the charge sheet, references of which have been given by the Tribunal in the impugned award while deciding the said issue in detail and from perusal of the impugned order , I find that the law laid down in the said cases fully applies in the present case and the Tribunal does not appear to have committed any illegality while deciding the said issue in favour of the claimants holding that it can very easily be presumed that the driver of the offending vehicle was having a valid licence at the time of the accident. Thus, the controversy regarding burden of proof also stands decided accordingly.

It is noticed that the Tribunal  while   passing  the  impugned award    followed the  various decisions  rendered by the this court as well as the Apex Court and has also taken into consideration the evidence led by the respective parties including the certified copies of the F.I.R., Site Plan, Inquest Report, Post Mortem Report, Technical Examination Reprot and the charge sheet and decided the matter by recording categorical findings on each and every issue framed by it, and after a close scrutiny of the same, I find that none of findings recorded by the Tribunal suffers from any legal infirmity warranting interference of this court.

Thus, I find that the court below has given cogent and convincing reasons while passing the impugned order. The impugned order passed by the court below is neither perverse nor based on any extraneous consideration or irrelevant material. This Court can not substitute its own opinion for the opinion of the court below unless it is found that the conclusion drawn by it is erroneous being contrary to the mandatory provisions of law. Thus, I  do   not  find that  the impugned award  suffers from   any legal infirmity   warranting interference  of  this court.

 In  the result, the appeal, being devoid of merits, is accordingly dismissed.

No order as to costs.

Order Date :- 16.10.2014

MLK