Orissa High Court
Bajaj Allianz General Insurance Co vs Hemalata Naik And Others .... Opp. ... on 3 January, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 11-Jan-2024 11:34:17
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 41361 of 2023
Bajaj Allianz General Insurance Co. .... Petitioner
Ltd., Khurda
Mr. Anupam Dash, Advocate
-versus-
Hemalata Naik and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 03.01.2024
1. 1. This matter is taken up through hybrid mode.
2. Petitioner in this writ petition seeks to assail the order
dated 13th October, 2023 (Annexure-5) passed by learned 3rd
Motor Accident Claims Tribunal-cum-District Judge, Jharsuguda
(for short, 'the Tribunal') in MAC Case No.2 of 2023, whereby
condoning delay in filing the claim petition under Section 166 of
the Motor Vehicles Act, 1988 (for short, 'the Act'), learned
Tribunal rejected the petition filed by the Petitioner-Insurance
Company under Order VII Rule 11 CPC with a prayer to reject
the claim petition on the ground of limitation.
3. Mr. Dash, learned counsel for the Petitioner submits that
the motor vehicle accident occurred on 27th June, 2022. In view
of the provision under Section 166 (3) of the Act, the claim
petition should have been filed within six months from the date
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 11-Jan-2024 11:34:17
of occurrence. For better appreciation, Section 166(3) of the Act
is reproduced hereunder:-
"No application for such compensation shall be
entertained unless it is made within six months of the
occurrence of the accident."
However, the claim petition was filed on 9 th January, 2023. Thus,
the Office had pointed out a delay of nine days in filing the claim
petition. Petitioner-Insurance Company on their appearance filed
an application under Order VII Rule 11 CPC to reject the claim
petition on the ground of limitation. On receipt of a copy of the
petition, the Claimants/Opposite Parties filed an application
under Section 5 of the Limitation Act to condone the delay of
nine days in filing the claim petition. It was stated in the petition
for condonation of delay that on 26th December, 2022, all the
Claimants had come to the Court premises to file the claim
petition, but the Claimant No.1 fell ill before the Oath
Commissioner and shifted to hospital and all other Claimants
/Opposite Parties accompanied him. As such, the claim petition
was filed on 5th January, 2023. Learned Tribunal condoning the
delay in filing the claim petition, admitted it and consequently
rejected the petition under Order VII Rule 11 CPC. It is
submitted by learned counsel for the Petitioner that in similar
such situation learned Telengana High Court while dealing with
Interlocutory Applications filed in W.P.(C) Nos.1395 and 1396
of 2023, vide order dated 6th March, 2023 held as under:-
"We do not find anything in the said judgment to
the effect that provisions of Section 5 of the Limitation
Act, 1963, cannot be made applicable to an application
filed for compensation under Section 166 of the 1988 Act
beyond the statutory period of six months.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 11-Jan-2024 11:34:17
Having regard to the composition of the Claims
Tribunal and the finality of its award, a prima facie view
can be taken that it has all the trappings of a Court and
therefore Section 5 of the Limitation Act, 1963 would be
attracted.
That being the position, as an interim order, we
direct the Motor Accidents Claims Tribunal, Nizamabad,
to take on board the two claim petitions filed by the
petitioners and proceed with the same on merit.
Insofar the larger issue raised in these writ
petitions is concerned, the same would be addressed
once counter affidavit is filed by the Union of India.
List these writ petitions after the summer vacation
on 06.06.2023."
The said order was assailed before the Hon'ble Supreme Court in
SLP (C) Nos.8412-8413 of 2023, in which the Hon'ble Court
vide order dated 4th May, 2023 issued the following directions: -
"Issue notice returnable within four weeks.
Dasti service, in addition, is permitted.
On the oral request made by Mr. Gourab Banerji,
learned senior counsel appearing for the petitioner,
"General Insurance Council", 5th Floor, National
Insurance Building, 14, Jamshedji Tata Road, Church
gate, Mumbai, Maharashtra -400020 is permitted to be
impleaded as party respondent.
Amended memo of parties be filed within a week.
In the facts and circumstances, the effect and
operation of the impugned order shall remain stayed, in
the meantime."
Similar situation occurred before Kerala High Court and the said
order was also challenged by the Insurance Company before the
Hon'ble Supreme Court in SLP (C) Diary No.22696 of 2023, in
which the following order was passed on 3rd July, 2023:-
"Permission to file the special leave petition is
granted.
Delay condoned.
Issue notice.
Dasti service in addition, is permitted.
In the facts and circumstances of the case, the
effect and operation of the impugned order dated
23.01.2023 shall remain stayed, in the meantime.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 11-Jan-2024 11:34:17
Tag along with SLP (C) No.9152/2023."
Several other SLPs involving similar question of law are also
pending and interim orders have been passed. The said orders
were brought to the notice of the Tribunal while adjudicating the
matter. In all fairness, learned Tribunal should have stayed its
hands and waited for final adjudication of the SLPs to take a
decision both in the petition filed under Section 5 of the
Limitation Act as well as under Order VII Rule 11 CPC. Instead,
learned Tribunal holding that if the delay is not condoned, the
worst that can happen that the Petitioner will not get an
opportunity of participating in the hearing by which they will be
highly prejudiced. On the other hand, it was also held that if the
petition will be allowed after the delay period being condoned,
the case will be decided on merit after hearing both the parties. It
is his submission that when the Hon'ble Supreme Court is in
seisin of the matter with regard to applicability of the provision
of Section 5 of the Limitation Act to a claim petition filed under
Section 166 of the Act, learned Tribunal should not have
proceeded with the matter. He, therefore, prays for setting aside
the impugned order and to direct learned Tribunal to wait till a
decision in that regard is taken by Hon'ble Supreme Court.
4. Taking note of the submission made by learned counsel
for the Petitioner and on perusal of materials on record, this
Court is of the considered opinion that there is admittedly a delay
in filing the claim petition. The question as to whether learned
Tribunal has jurisdiction to condone the delay in filing the claim
petition under Section 166 of the Act or not in exercise of the
power under Section 5 of the Limitation Act, is sub judice before
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 11-Jan-2024 11:34:17
Hon'ble Supreme Court. It is also submitted that aforesaid facts
as well as orders passed by Hon'ble Supreme Court was brought
to the notice of learned Tribunal while adjudicating the matter.
But, it appears that learned Tribunal though referred to the said
orders while adjudicating the matter, but did not discuss the
effect of the same while passing the impugned order.
5. Hence, this Court feels that the matter requires fresh
consideration by learned Tribunal. Accordingly, the impugned
order under Annexure-5 is set aside and the matter is remitted to
learned Tribunal for fresh consideration of the matter providing
opportunity of hearing to the parties concerned. It is made clear
that this court has not expressed any opinion on the merit of the
case of the Petitioner. .
6. With the aforesaid observation, the writ petition is
disposed of.
7. Since the writ petition is disposed of without issuing
notice to the Opposite Parties, they are at liberty to seek variation
of this order, if they feel aggrieved.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
