Punjab-Haryana High Court
Smt. Gul Devi And Another vs Surjit Singh And Others on 9 March, 2010
Author: Rajesh Bindal
Bench: Rajesh Bindal
FAO No. 290 of 1989 -1-
In the High Court of Punjab & Haryana at Chandigarh
FAO No. 290 of 1989 (O&M)
Date of decision : 9.3.2010
Smt. Gul Devi and another ... Appellants
vs
Surjit Singh and others .... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Suvir Sehgal, Advocate, for the appellants.
Mr. Ravinder Arora, Advocate, for the Insurance company.
Rajesh Bindal J.
The claimants are in appeal against the award dated 4.1.1989, whereby the Motor Accidents Claims Tribunal, Ambala (hereinafter to be referred as "the Tribunal"), dismissed the petition filed by them claiming compensation on account of death of their son Shiv Kumar in a motor vehicle accident, as time barred.
Briefly, the facts of the case are that on 11.3.1986 Shiv Kumar was driving rickshaw and was carrying two passengers in his rickshaw from Mani Majra to Panchkula. When the rickshaw reached near Happy Service Station on the left side of the road at about 3.15 pm, a truck bearing CHW 3713, driven rashly and negligently came from behind and hit the rickshaw. Due to the impact, the lady passenger Smt. Suresh Wati along with her child fell down from the rickshaw on the road. She died at the spot. Rickshaw puller and the child received multiple injuries. Shiv Kumar died in the PGI Chandigarh on 12.3.1986. The appellants filed the claim petition before the Tribunal, which was dismissed vide impugned award.
Learned counsel for the appellants submitted that the award of the learned Tribunal dismissing the claim petition filed by them opining that the same was beyond limitation is not in conformity with law. He submitted that under the provisions of the Motor Vehicles Act, 1939 (for short, `the 1939 Act'), there was limitation of six months for filing the claim petition. However, if filing of the petition was delayed, the claimants could file an application for condonation of delay and if sufficient cause was shown, a belated claim petition could also be entertained. With effect from 1.7.1989, Motor Vehicles Act, 1988 (for short, `the 1988 Act') was enforced, which provided for limitation of six months for filing the claim petition and the delay only to the extent of six months in filing the FAO No. 290 of 1989 -2- application, could be condoned.
Vide Motor Vehicles Amendment Act, 1994, which came into force w.e.f. 14.11.1994, the limitation to file claim petition was done away with. Sub- section (3) of Section 166 of the 1988 Act, which provided for limitation for filing of claim petition was deleted. As a result of this, the claim petition filed by the appellants in the present case on 25.4.1988 could not have been dismissed by the Tribunal by holding that the same was time barred. He further submitted that the issue came up for consideration before Hon'ble the Supreme Court in Dhannalal v. D.P. Vijayvargiya, 1996(3) PLR 656 and New India Assurance Co. Ltd. v. C. Padma and another, (2003) 7 SCC 713 and a Division Bench of this Court in Darshan v. Devinder Singh and another, 2006(3) PLR 307, wherein it was opined that even if any accident had taken place prior to the deletion of sub-section (3) of Section 166 of the 1988 Act, the claim petition even if filed thereafter would not be barred by time. It was further opined therein that in case any claim petition had earlier been dismissed as time-barred, but the proceedings were pending in any court, the same shall also be considered to be within limitation, as those claimants will not be at a worse position than a claimant who had not filed any claim petition by that time, as in terms of the amended provisions, a fresh claim petition could be filed. However, it was opined that the claim petitions, which were dismissed and the orders thereof had already attained finality, those proceedings will not be re- opened.
As far as merits of the case are concerned, the Tribunal has not awarded any compensation with regard to treatment, transportation, funeral expenses and loss of estate etc. It was further argued that no interest has been awarded by the learned Tribunal to the claimants.
On the other hand, learned counsel for the Insurance Company submitted that in the present case the accident had taken place when the 1939 Act was in force. There was limitation provided therein. In 1988 Act, the provisions were made even more stringent as the power to condone delay was restricted to six months only and the limitation for filing the claim petition was fixed as six months. The appellants having not filed the claim petition, either when the 1939 Act was in force or when the new Act came into force, could not have been entertained when the amendment was carried out in 1994 deleting sub-section (3) of Section 166 of the 1988 Act. However, he was unable to cite any judgment in support of the arguments raised by him.
Learned counsel for the Insurance company further submitted that claim petition filed by appellant no.2 Lalan alias Lal Bihari was dismissed in default on 16.7.1988 (Ex. R2) and he cannot be permitted to file a second petition FAO No. 290 of 1989 -3- and consequently not entitled to any compensation.
Heard learned counsel for the parties and perused the paper book. Primary issue under consideration in the present appeal is as to whether a claim petition filed after the deletion of sub-section (3) of Section 166 of the 1988 Act for claiming compensation arising out of an accident, which had taken place before the enforcement of the 1988 Act on 1.7.1989, could be dismissed as time barred or the same was to be entertained and decided on merits.
In my opinion, considering the judgments cited by learned counsel for the appellants, the issue is no more res integra.
Hon'ble the Supreme Court in Dhannalal's case (supra) examining the effect of the amendment carried out in the 1988 Act in the year 1994 by way of deletion of sub-section (3) of Section 166 and considering as to whether the same will apply only to the accident which took place after the date on which the amendment came into force, i.e., 14.11.1994 or even for the period prior thereto, opined 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 Section 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 the Parliament realized 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 the ground of limitation. It is a matter of common knowledge and 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 hospitalized 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 FAO No. 290 of 1989 -4- 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 FAO No. 290 of 1989 -5- 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 the 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 pursing 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."
[Emphasis supplied] Considering the difficulties being faced by the claimants, Hon'ble the Supreme Court in Jai Parkash v. M/s National Insurance Co. & others, 2010(1) RCR (Civil) 635 directed the police authorities as well as the Tribunal to comply with the provisions of Section 158(6) of the 1988 Act. Relevant paragraphs are extracted below:
FAO No. 290 of 1989 -6-"Directions to Police Authorities
8. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations:
(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules, 1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal: (i) The age of the victims at the time of accident; (ii) The income of the victim; (iii) The names and ages of the dependent family members.
(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependent family members of the deceased should also be furnished to the Tribunal.
(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.
(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.
9. To avoid any administrative difficulties in immediate implementation of Section 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/ Claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/ Claims Tribunals in FAO No. 290 of 1989 -7- district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/ Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158 (6) of the Act.
10. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1,000/- or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.
11. The Transport Department, Health Department and other concerned departments shall extend necessary cooperation to the Director Generals to give effect to Section 158(6).
Directions to the Claims Tribunal
12. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166(4) of the Act.
13. For complying with Section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:
(a) The Tribunal shall maintain an Institution Register for record the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions.
If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the Register.
(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police FAO No. 290 of 1989 -8- to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any Police Officer-Advocate- Doctor' nexus, which has come to light in several cases).
(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
(e) The Tribunal shall categorise the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Manager, KSRTC v. Susamma Thomas [1994(2) SCC 176].
h) As the proceedings initiated in pursuance of Sections 158(6) and 166(4) of the Act are different in nature from an application by the victim/s under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.
FAO No. 290 of 1989 -9-14. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872 to determine the just compensation."
Hon'ble the Supreme Court in New India Assurance Co. Ltd.'s case (supra), while considering an identical issue, the facts of which were also similar- such as the accident having taken place prior to the enforcement of 1988 Act and the claim petition having been filed after the deletion of sub-section (3) of Section 166 of the Act, opined that such a petition could not be dismissed as time barred. Relevant passages are extracted below:
"4. The only contention, which has been strenuously urged by the counsel for the appellant, is that the accident had taken place on 18.2.1989 and the claim petition was filed on 2.11.1995; when the claim was barred under the old Act, the same could not have been revived under the new Act. It is his contention that on this score alone the claim petition should have been dismissed. To answer this contention it would be useful to have a quick survey of changes that have taken place in the Act. The old Act of 1939 has been repealed and since then there is a sea change in the Act. In the old Motor Vehicles Act, 1939 (hereinafter referred to as "the Act') sub-section (3) of Section 110-A provided:
"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."
5. The 1939 Act was repealed w.e.f. 1.7.1989. The period of limitation prescribed in the new Act is provided under sub-section (3) of Section 166. It reads:
"166. (3) No application for such compensation shall be FAO No. 290 of 1989 -10- 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."
6. 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 a period of six months but later than twelve months.
7. In the instant case, at the time when the respondents had filed claim petition on 2.11.1995, the situation was completely different. Sub-section (3) of Section 166 of the Act had been omitted by Act 54 of 1994 w.e.f. 14.11.1994. The result of Act 54 of the Motor Vehicles (Amendment) Act, 1994 is that there is no limitation prescribed for filing claim petitions before the Tribunal in respect of any accident w.e.f. 14.11.1994.
xx xx xx
10. The ratio laid down in Dhannalal's case applies with full force to the facts of the present case. When the claim petition was filed sub-section (3) of Section 166 had been omitted. Thus, the Tribunal was bound to entertain the claim petition without taking note of the date on which the accident took place."
[Emphasis supplied] The aforesaid view was followed by a Division Bench of this Court in Darshan's case (supra) and a bench of this Court in FAO No. 613 of 1994 titled as Chaman Lal v. Sarabjit Singh and others decided on 11.2.2010.
From the enunciation of law, as referred to above, in my opinion, the issue stands authoritatively concluded by Hon'ble the Supreme Court holding that even in the cases where the accident had taken place when the 1939 Act was in force and a claim petition had been filed after the enforcement of the 1988 Act, especially after the deletion of section 166(3) of the 1988 Act, the claim petition cannot be dismissed on account of limitation. It was opined considering the fact that it was a piece of beneficial legislation, where mere delay should not be a ground to non-suit the claimant, who may have lost the bread earner of the family or suffered grievous injuries. In fact, to take care of such situation and also delay in filing of claim petitions and also the disposal thereof, Hon'ble the Supreme FAO No. 290 of 1989 -11- Court in Jai Parkash's case (supra) has issued certain directions to the police authorities as well as the Tribunals in the country to take steps strictly in terms of Section 158(6) of the 1988 Act by recording the Accident Information Report in Form No. 54 and submitting the same to the concerned Tribunal within 30 days of the registration of FIR mentioning requisite details therein. The Tribunals have also been directed to consider such reports as claim applications under Section 166 of the 1988 Act and decide without waiting for formal claim petitions.
In view of my aforesaid discussion, the finding of the learned Tribunal to the effect that the claim petition filed by the appellants was beyond limitation, is set aside.
The learned Tribunal while assessing the compensation at Rs. 50,400/- directed that Rs. 40,000/- be paid to the mother whereas Rs. 10,400/- be paid to the father of the deceased. The fact that earlier claim petition filed by the father was dismissed in default and no further proceeding was initiated by him to get that petition restored. a fresh petition filed on his behalf is certainly not maintainable. Accordingly, while upholding the finding on issue no. 4, it is held that the claim petition on behalf of appellant no. 2 shall be treated as dismissed. Once the claim on behalf of respondent no. 2 is dismissed, the apportionment on account of compensation in his favour will also go.
Appellant no. 1 shall be entitled to Rs. 40,000/- as compensation awarded by the learned Tribunal. In addition to that I find merit in the submission of the learned counsel for appellant no. 1 that she has not been granted compensation on account of transportation, funeral expenses, loss of estate, etc. and also interest on the amount of compensation. Accordingly, appellant no. 1 is also granted Rs. 10,000/- on account of transportation, funeral expenses, loss to the estate etc. She shall also be entitled interest @ 6% from the date of filing of the claim petition till realisation of the amount.
The appeal is disposed of in the above terms.
9.3.2010 ( Rajesh Bindal)
vs. Judge
(Refer to Reporter)