Madras High Court
Shanmathi vs Ravi on 19 July, 2023
C.R.P.No.2451 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19.07.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.2451 of 2023
Shanmathi ... Petitioner
Vs.
1. Ravi
2. The Chief Executive Claim Officer,
Bajaj Allianz General Insurance Co., Ltd.,
Old Nos.276 & 277, New No.497 & 498,
5th Floor, Isanakattima Building,
Poonamallee High Road,
Arumbakkam, Chennai – 600 106 ... Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India to direct the MAC Tribunal / Subordinate Judge, Gingee to take on file
unnumbered M.A.C.T.O.P.SR No.1438 of 2023 filed by the petitioner and
proceed in accordance with law.
For Petitioner : Mr.M.Santhanaraman
ORDER
The Civil Revision Petition is filed under Article 227 of the Constitution
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C.R.P.No.2451 of 2023
of India to number the unnumbered claim application in MCOP Sr.No.1438 of
2023 on the file of the MAC Tribunal / Subordinate Judge, Gingee and allow
the Civil Revision Petition.
For Petitioner : Mr.M.Santhanaraman
ORDER
The present revision petition is filed against the un-numbered claim
application filed in M.C.O.P. SR.No.1438 of 2023, on the file of the Motor
Accident Claims Tribunal, Gingee.
2. M.C.O.P.SR.No.1438 of 2023 is filed seeking compensation under
Section 166 of Motor Vehicles Acts, in respect of injuries sustained in the
accident that had taken place on 17.02.2022. However, the same is returned
with an endorsement that claim of the claimant is barred by limitation on
account of the amendment to the Motor Vehicles Act came into force by Act
32 of 2019 with effect from 01.04.2022. Learned trial Judge has passed order
based on the order passed in C.R.P.(PD).No.4066 of 2022, in which this
Court has held that claim made beyond period of limitation as per Amendment
Act 32 of 2019 is barred by limitation.
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C.R.P.No.2451 of 2023
3. Learned counsel for the petitioner/claimant submitted that in a similar
case, the High Court of Kerala has passed an order in Sathy vs.Dileep,
reported in 2022 (2) TN MAC 1 (Ker.), O.P.(MAC).No.51 of 2022 wherein
direction was given to approach the Tribunal concerned to admit M.C.O.P.,
and proceed with the case. Para Nos.7 to 10 of the judgment of the Kerala
High Court reads as follows:
“?7. It is a matter of record that when the old Motor
Vehicles Act 1939 was substituted and repealed by Act of 1988,
the provision of limiting the right to file claim petition was six
months. The aforementioned period of six months was omitted by
way of amendment in the year 1994. Thus, the affected parties
had a right to file claim petition in a case of injury or death at any
point of time untrammeled by the objection of limitation.
Legislature in the wisdom on due deliberation have reintroduced
the O.P.(MAC) No.51/2022 6 aforementioned erstwhile
provisions of sub~section (3) of Section 166 limiting the right to
entertain the claim petition before the concerned court within a
period of six months from the date of the accident. The accident
in this case, as noticed above, had occurred on 23.5.2019. The
claim petition was filed on 23.4.2022. By that time the new
amendment had already come into force by Act 32 of 2019
effective from 1.4.2022 resulting into the impugned order. The
same reads as under :
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C.R.P.No.2451 of 2023
?”This application is filed under Section 166(1) of MV Act, 1988.
The date of accident is 23.5.2019. As per Motor Vehicle
(Amendment) Act, 2019, which came into force with effect from
1.4.2022, the application to be filed within six months of the
occurrence of the accident (vide Section 166(3) of the M.V.Act,
1988). The present application filed on 23.4.2022 is barred by
limitation. In the result, this application is rejected as time barred.?
8. It is settled law that in case there is no provision protecting the
rights of a litigant viz by causing amendment which inexplicably
takes away exceptional rights, then the provisions of Section 6 of
General Clauses Act, 1897 would come into play. Similar
situation had occurred when the amendment was caused in the
old Act of 1939 by introducing Act of 1988 wherein in a case of
no fault liability the maximum compensation of MACT award was
Rs.15,000/~. The High Court while entertaining the appeal by
O.P.(MAC) No.51/2022 7 taking aid of the amended provisions of
Section 140 introduced by way of 1988 amendments gave the
benefit of Rs.50,000/~. The aforementioned objection was
assailed before the Supreme Court in a matter reported in State
of Punjab and others v. Bhajan Kaur and others [2008 (3) KHC
823]. After deliberation on the issue, it was held that when there
is no introduction or omisision of the provisions of the Act, there is
no intention of the legislature to have its prospective or
retro~active applicability and in such circumstances, the
amendment caused in the new Act would have a prospective
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C.R.P.No.2451 of 2023
effect. It would be expedient to extract paragraphs 13, 16 and 17
of the above judgment :
?”13. No reason has been assigned as to why the 1988 Act
should be held to be retrospective in character. The rights and
liabilities of the parties are determined when cause of action for
filing the claim petition arises. As indicated herein before, the
liability under the Act is a statutory liability. The liability could,
thus, be made retrospective only by reason of a statute or
statutory rules. It was required to be so stated expressly by the
Parliament. Applying the principles of interpretation of statute, the
1988 Act cannot be given retrospective effect, more particularly,
when it came into force on or about 1.07.1989. ...................
16. Section 6 of the General Clauses Act, therefore, inter alia
saves a right accrued and/ or a liability incurred. It does not
create a right. When Section 6 applies only an existing right is
saved thereby. The existing right of a party has to be determined
on the basis of the statute which was applicable and not under
the new one. If a new Act confers a right, it does so with
prospective effect when it comes into force, unless expressly
stated otherwise. Section 140 of the 1988 Act does not contain
any procedural provision so as to construe it to have
retrospective effect. It cannot enlarge any right. Rights of the
parties are to be determined on the basis of the law as it then
stood, viz., before the new Act come into force.
17. It is now well~settled that a change in the substantive law, as
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C.R.P.No.2451 of 2023
opposed to adjective law, would not affect the pending litigation
unless the legislature has enacted otherwise, either expressly or
by necessary implication.?
9. Section 6 of the General Clauses Act, 1897 postulates the
situation of a similar nature where by protecting right, privilege,
obligation or liability acquired or accrued under any repealed
enactment. It is settled law that the provisions of the new Act
cannot infringe or re~ligate the right granted under the old Act.
Section 6 of General Clauses Act reads thus : ?6 Effect of
repeal. Where this Act, or any [Central Act] or Regulation made
after the commencement of this Act, repeals any enactment
hitherto made or hereafter to be made, then, unless a different
intention appears, the repeal shall not ~ (a) revive anything not in
force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or
anything duly done or suffered thereunder; or (c) affect any right,
privilege, obligation or liability acquired, accrued or incurred under
any enactment so repealed; or (d) affect any penalty, forfeiture or
punishment incurred in respect of any offence committed against
any enactment so repealed; or (e) affect any investigation, legal
proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be
instituted, continued or enforced, and any such penalty, forfeiture
or punishment may be imposed as if the repealing Act or
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C.R.P.No.2451 of 2023
Regulation had not been passed.? 10. Since while introducing the
Act of 2019 effective from O.P.(MAC) No.51/2022 9 1.4.2022,
Legislature did not cause any amendment in the repealing and
savings clause specifying its applicability in respect of the
accidents occurred prior to the introduction of the amendment, in
view of the provisions of Section 6 and the observations of the
Supreme Court in the judgment in State of Punjab and others v.
Bhajan Kaur and others (supra), I am of the view that the
applicability of the Act i.e., introduction of the old provisions of
subsection (3) of Section 166, would have a prospective effect
and the limitation period of six months would apply after
introduction of the amendment i.e., post 1st April 2022. In other
words, in any accident occurred after 1.4.2022, provisions of the
amendment caused in the Act prescribing the limitation to
entertain a claim petition, the parties would be governed by the
same but not in respect of the persons whom a right had already
accrued and was available if the amendment had not been
caused. For the reasons aforementioned the impugned order is
set aside. Original petition is allowed. The MACT is directed to
entertain the claim petition preferred and try the case on merits.
Since the Insurance Company has already put in appearance,
the counsel representing the Insurance Company will be at liberty
to put an appearance before the MACT as it will save the time
O.P.(MAC) No.51/2022 10 regarding service of the Insurance
Company. The parties are directed to appear before the MACT
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C.R.P.No.2451 of 2023
on 7.7.2022.?”
4. Considering the above facts and circumstances, this Civil Revision
Petition is disposed of with a direction to the learned Subordinate Judge,
Gingee, to reconsider the claim petition in the light of the above judgment of
the High Court of Kerala. The learned counsel for the petitioner is directed to
resubmit the M.C.O.P.SR.No.1438 of 2023 within a period of three weeks
from the date of receipt of a copy of this order and thereafter, the learned
Subordinate Judge, Gingee, is directed to hear the petitioner. Taking into
consideration, the orders passed in O.P.(MAC).No.51 of 2022 by the High
Court of Kerala and consider to register the same, if it is otherwise in order,
without reference to limitation.
5. In view of the above, this Civil Revision petition is disposed of. No
costs.
6. The Registry is directed to return the original applications to the
petitioner, enabling the petitioner to represent the same before the Trial Court.
19.07.2023
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C.R.P.No.2451 of 2023
Index:Yes
Internet:Yes
Speaking Order
ssd
To
1.The Subordinate Judge,
Gingee
2. The Chief Executive Claim Officer,
Bajaj Allianz General Insurance Co., Ltd.,
Old Nos.276 & 277, New No.497 & 498,
5th Floor, Isanakattima Building,
Poonamallee High Road,
Arumbakkam, Chennai – 600 106
V.BHAVANI SUBBAROYAN, J.,
ssd
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C.R.P.No.2451 of 2023
C.R.P.No.2451 of 2023
19.07.2023
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