Orissa High Court
The Manager (Legal) vs Subash Pradhan on 6 January, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.24028 of 2024
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
The Manager (Legal) Shriram General Insurance Company Ltd.
At: Dharmanagar, Berhampur
District: Ganjam,
Represented through
Legal Executive ... Petitioner
(Respondent No.2 before
the learned Tribunal).
-VERSUS-
1. Subash Pradhan
Aged about 46 years
Son of Dina Pradhan
Resident of Village: Haridamula
P.O.: Shyamsundarpur
P.S.: Khallikote
District: Ganjam, Odisha
(Claimant-petitioner before
the learned Tribunal)
2. A. Sangram Patra
Aged about 47 years
Son of A. Ganesh Patra @ Ganesh Patra Residing At: Gurapalli, P.O.: Bhejpur P.S.: Khallikote, District: Ganjam (Respondent No.1 before the learned Tribunal) ... Opposite parties.
W.P.(C) No.24028 of 2024 Page 1 of 42Counsel appeared for the parties:
For the Petitioner : M/s. Anupam Dash, Subham Sharma, Arpit Sarangi, Advocates For the Opposite party : M/s. Suryakanta Dwibedi, No.1 R.K. Mahanta, S.S. Dash, K.M. Hati, Advocates P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 06.01.2025 :: Date of Order : 06.01.2025 O RDER Challenge is laid against the Order dated 06.05.2024 (Annexure-3) passed in M.A.C. Case No.02 of 2022, wherein question of maintainability of the application of the present opposite party No.1, namely, Subash Pradhan, for compensation filed under Section 166 of the Motor Vehicles Act, 1988 being raised, the same has been rejected by the learned Additional District Judge-cum-9th Motor Accident Claims Tribunal, Khallikote, Ganjam. The petitioner-Shriram General Insurance Company Ltd., has approached this Court by way of this writ petition invoking extraordinary jurisdiction under Articles 226 & 227 of the Constitution of India with the following prayer(s):W.P.(C) No.24028 of 2024 Page 2 of 42
"Under the facts and circumstances as narrated above, this Hon‟ble Court may graciously be pleased to issue notice to the opposite parties and after hearing the parties be pleased to quash the order dated 06.05.2024 passed by the learned 9th MACT-cum-Additional District Judge, Khallikote under Annexure-3 and allow the petition filed by the petitioner-Insurance Company under Annexure-2 and pass any other order/orders, as may be deemed fit and proper in the interest of justice.
And for this act of kindness, the petitioner shall as in duty bound ever pray."
Facts as narrated in the writ petition:
2. The claim case, i.e., M.A.C. Case No.02 of 2022 has been filed on 29.11.2022 under Section 166 of the Motor Vehicle Act, 1988 ("MV Act" for short) before the Court of learned Additional District Judge-cum-9th Motor Accident Claim Tribunal, Khallikote, Ganjam ("MACT", for convenience) by the present opposite party No.1, namely, Subash Pradhan for grant of compensation to tune of Rs.20,00,000/- on account of injury sustained in a road accident caused by a Truck (Goods Carrier) bearing Registration No.OR-07U-8708 on 19.11.2021 at 6.00 P.M. near village Haridamula under Khallikote Police Station.
2.1. The opposite party No.2-the owner of the said vehicle was impleaded as respondent No.1 and the present petitioner-Shriram General Insurance Company Ltd.
W.P.(C) No.24028 of 2024 Page 3 of 42as respondent No.2, before the learned MACT. The claim application has been contested by the respondent No.2-present petitioner raising issue of maintainability with prayer to dismiss the said claim petition/application on the ground that accident being occurred on 19.11.2021 and the opposite party No.1 having filed claim case, i.e., M.A.C. No.02 of 2022, on 29.11.2022, which is after the period of six months of occurrence. The delay in filing could not be condoned in view of the Motor Vehicles (Amendment) Act, 2019. The petition raising maintainability at the behest of Shriram General Insurance Company Ltd. has been dismissed vide order dated 06.05.2024 by the learned MACT with the following order:
"The case record is posted today for hearing of the petition filed by the respondent No.2 in which the respondent No.2 has challenged the maintainability of the petition on the ground of limitation. Counsels for both the parties are present. Copy served. Heard. Perused the case record.
During course of the hearing of the petition, the learned counsel for the respondent No.2 submitted that the alleged accident took place on dated 19.11.2021 whereas the petitioner has filed the claim petition on dated 29.11.2022, i.e., after lapse of 354 days. He also submitted that the provisions of Section 166(3) of the M.V. Act clearly speaks that the claim petition has to be filed within a span of 06 months from the alleged accident and accordingly the present claim petition is W.P.(C) No.24028 of 2024 Page 4 of 42 having no merit and is not maintainable in the eye of law on the ground of limitation.
On the other hand learned counsel for the petitioner has submitted that in view of the amendment the M.V. Act, the claim application in respect of the accident which arises/occurs after the date of the amendment has to be filed within the period of limitation, i.e., six months, but in the present case the accident took place on dated 19.11.2021, i.e., much prior to the amendment and such amendment is not also retrospective in nature. That apart, he has submitted that there are sufficient and good grounds on the part of the petitioner to succeed in the matter and hence in the interest of justice, the petition filed by the respondent No.2 challenging the maintainability of the claim petition is liable to be rejected.
On the other hand, the learned counsel for the respondent No.1 submitted to pass any order as per law and he did not file any objection in the matter.
On perusal of the case record it is found that the alleged accident in respect of which the claim petition has been filed took place on 19.11.2021 and in respect of the said incident, Khallikote P.S. Case No.722 dated 28.11.2021 was registered u/s.279/337/338 of IPC and after completion of investigation charge sheet bearing No.741 of 2021 dated 29.12.2021 has been filed under Section 279/337/338 of IPC.
That apart, in view of the settled principles of law, this court is of the opinion that any amendment in law operates prospectively, unless there is a clear provision to the effect that the amendment is retrospective in W.P.(C) No.24028 of 2024 Page 5 of 42 nature. Moreover, the intention of legislature behind the enactment of the provision under Section 166 of MV Act as well as the corresponding law is to provide necessary compensation to the victims of the road traffic accidents and the said enactment is a benevolent legislation.
Hence, considering the facts and circumstances of this case, submissions of the counsels by giving regards to the settled principles of law, the petition at hand has got no merit to stand and is accordingly disposed of being rejected.
Put up the case record on dated 11.05.2024 in the National Lok Adalat for conciliation and further order. Intimate the parties accordingly."
2.2. Being dissatisfied with the order dated 06.05.2024 passed in M.A.C. Case No.02 of 2022 by the learned MACT, the petitioner has approached this Court by way of this writ petition.
Hearing:
3. Heard Sri Anupam Dash, learned Advocate for the petitioner and Sri Suryakanta Dwibedi, learned Advocate for the opposite party No.1.
Rival contentions and submissions:
4. Sri Anupam Dash, learned counsel represented the opposite party No.1, namely, Subash Pradhan, claimant, and submitted that while going to his village, W.P.(C) No.24028 of 2024 Page 6 of 42 the claimant met with an accident caused by the vehicle mentioned above at Haridamula Village under Khallikote Police Station on 19.11.2021 at about 6.00 P.M. due to rash and negligent driving of the driver. The opposite party No.1 filed M.A.C. Case No.02 of 2022 before the learned Tribunal on 29.11.2022 for grant of compensation of Rs.20,00,000/-.
4.1. He further submitted that the incident occurred on 19.11.2021 and M.A.C. Case No.02 of 2022 was filed on 29.11.2022, which was conspicuously beyond the period of six months, i.e., around 354 days. Such inordinate delay in absence of provisions contained in Section 166 as amended by the Motor Vehicles (Amendment) Act, 2019 could not be ignored/omitted. Section 53 ibid. inserting sub-section (3) in Section 166 of the MV Act, 1988, came into force with effect from 01.04.2022 by virtue of Ministry of Road Transport and Highways Notification No. F.No. RT- 11036/ 64/2019-MVL [SO 859(E)], dated 25.02.2022 (published in Gazette of India No.829, dated 25.02.2022) specified "No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident". Relying on Section 166(3) of the MV Act, 1988 as so amended learned counsel appearing for the petitioner contended that the claim petition, being not filed W.P.(C) No.24028 of 2024 Page 7 of 42 within a period of six months from the date of accident, the claims application could not have been entertained and the petition raising maintainability should have been allowed. Essentially, Sri Anupam Dash, the learned counsel vehemently contended that, the claim petition of the opposite party No.1 was barred by limitation under Section 166(3) as inserted by Motor Vehicles (Amendment) Act, 2019, which received assent of the President on 9th August, 2019, and as such it is liable to be dismissed.
4.2. It is fervently urged that the impugned Order, being devoid of plausible reasons, is liable to be set aside.
5. Sri Suryakanta Dwibedi, learned counsel appearing for the opposite party No.1 relying on the decisions of the various Courts, viz., Md. Tibul Choudhury Vrs. The Regional Manager, National Insurance Co. Ltd., Case No. MACApp./30/2021, disposed of on 12.12.2024 by the Gauhati High Court, Mangal Batra Vrs. Mohammad Rafeeq Visayati, W.P.(C) No.22096 of 2022, disposed of on 10.08.2022 by the Allahabad High Court, Shanmathi Vrs. Ravi, C.R.P. No.2451 of 2023, disposed of on 19.07.2023 by the Madras High Court, Thomas Daniel Vrs. Selvi, C.R.P. No.761 of 2024, disposed of on 02.04.2024 by the Madras High Court and Malaravan Vrs. Praveen Travels Private Limited, C.R.P. No.2558 of W.P.(C) No.24028 of 2024 Page 8 of 42 2023, disposed of on 18.08.2023 by the Madras High Court, would submit that the claim petition, being bona fide, has rightly been entertained.
5.1. Appearing for opposite party No.1, the learned Counsel vehemently contended that although Section 166 of the MV Act, 1988 was amended in the year 2019 and received the assent of the President, the effective date for enforcement of the MV (Amendment) Act, 2019 was notified on 25.02.2022, by virtue of which said Amendment Act came into force with effect from 01.04.2022. Therefore, the claim petition, being entertained for good reasons, the order impugned in the writ petition warrants no intervention.
Consideration and conclusion:
6. Considered the submissions made by the learned counsel appearing in the matter and on perusal of the record, this Court finds the fact that the accident occurred on 19.11.2021 and the opposite party No.1 filed M.A.C. Case No.02 of 2022 on 29.11.2022, seeking compensation from the respondents, which are undisputed.
6.1. Relevant portion of the Motor Vehicles (Amendment) Act, 2019, reads thus:W.P.(C) No.24028 of 2024 Page 9 of 42
"The Motor Vehicles (Amendment) Act, 2019 No. 32 of 2019 [9th August, 2019] ***
1. Short title and commencement.--
(1) This Act may be called THE MOTOR VEHICLES (AMENDMENT) ACT, 2019.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
***
53. Amendment of section 166.--
In section 166 of the principal Act,--
(i) in sub-section (1), after the proviso, the following proviso shall be inserted, namely:--
„Provided further that where a person accepts compensation under section 164 in accordance with the procedure provided under Section 149, his claims petition before the Claims Tribunal shall lapse.‟
(ii) in sub-section (2), the proviso shall be omitted;W.P.(C) No.24028 of 2024 Page 10 of 42
(iii) after sub-section (2), the following sub-
section shall be inserted, namely:--
'(3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident.'.
(iv) in sub-section (4), for the words, brackets and figures „sub-section (6) of Section 158‟, the word and figures „Section 159‟ shall be substituted;
(v) after sub-section (4), the following sub-
section shall be inserted, namely:--
„(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.‟."
6.2. Ministry of Road Transport and Highways brought out the following notification in exercise of power under Section 1(2) of aforesaid Amendment Act, 2019:
"Ministry of Road Transport and Highways 1Notification 1 Published in the Gazette of India, Extraordinary [PART II-- Section 3-- Sub-
section (ii)] issue No.829, dated 25.02.2022.W.P.(C) No.24028 of 2024 Page 11 of 42
New Delhi, the 25th February, 2022 S.O. 859(E).--In exercise of the powers conferred by sub-section (2) of Section 1 of the Motor Vehicles (Amendment) Act, 2019 (32 of 2019), the Central Government hereby appoints the 1st day of April, 2022 as the date on which the following provisions of the said Act shall come into force, namely:--
Sl. No. Sections
*** ***
4. Section 53
*** ***
[F. No. RT-11036/64/2019-MVL]
AMIT VARADAN,
Jt. Secy."
6.3. It is stated at the Bar that different High Courts have consistently held in such circumstances that the claim application would not be hit by limitation specified in sub-section (3) of Section 166, as inserted with effect from 01.04.2022.
6.4. Madurai Bench of the Madras High Court in the case of Thomas Daniel Vrs. Selvi, CRP(MD) No.761 of 2024, vide Order dated 02.04.2024, has made the following observations:
"5. It is, no doubt, true that prior to 01.04.2022, there was no limitation for filing claims seeking compensation for injury or death arising out of the W.P.(C) No.24028 of 2024 Page 12 of 42 use of the motor vehicle. Clause (3) of Section 166 of the Act, which was introduced by the Motor Vehicles (Amendment) Act, 2019, provides that a claim for such compensation must be filed before the Tribunal within six months from the date of accident.
6. It is brought to notice that the Constitutional Validity of the said amendment has been challenged before the Hon‟ble Supreme Court of India in Bhagirathi Dash Vrs. Union of India in W.P. (Civil) No. 166 of 2024 in which notice has been ordered on 01.04.2024 to the Respondent therein.
***
8. Inasmuch as the accident in the instant case has taken place prior to 01.04.2022, it is incumbent upon the Tribunal to examine as to whether the statutory dispensation referred supra has been followed by the police authorities and if so, the Petitioners would obviously be entitled to its benefits.
9. In such circumstances, the impugned proceedings shall be returned to the Petitioners so as to enable them to re-present it before the Tribunal so as to examine the matter afresh in terms of the dictum laid down by this Court in Malaravan Vrs. Praveen Travels Pvt. Ltd., (2023) 5 CTC 47. Any decision taken by the Tribunal would be certainly subject to the result of the outcome of the challenge made to the Constitutional Validity of Section 166(3) of the Motor Vehicles Act, 1988, introduced with W.P.(C) No.24028 of 2024 Page 13 of 42 effect from 01.04.2022, pending in the Hon‟ble Supreme Court of India in Bhagirathi Dash Vrs. Union of India in W.P. (Civil) No. 166 of 2024, and the ultimate outcome of the Special Leave Petition against the judgment of the Kerala High Court in Vimala Jose Vrs. Aboobacker and two others in O.P.(MAC) No.136 of 2022 dated 02.12.2022 and Akshay Raj Vrs. Ministry of Law and Justice Legislative Department rep. By the Secretary, IV Floor, A Wing, Shastri Bhavan, New Delhi in O.P. (MAC) No.6 of 2023 dated 23.01.2023, regarding the applicability of Section 5 of the Limitation Act, 1963, to such claims."
6.5. In Ranju Begum Vrs. Shahjahan Ali, CRP No.172 of 2019, vide Order dated 03.03.2021, 2021:GAU-AS:
3420, the Gauhati High Court laid down as follows:
"7. Therefore, when it has been expressly provided under Sub-Section (2) of Section 1 of the amending Act of 2019 that the Central Govt. may appoint different dates for different provisions of the said Act to come into force, the learned Tribunal had erred in law to apply the provision Section 5(1)(b) of the General Clauses Act, 1897 and to deem that Section 53 of the amending Act of 2019 which contained amendment to the provision of Section 166 of the MV Act had come into operation on the date when it received assent of the President.
8. It is seen that as sections 50 to 57 of the amending Act of 2019 are not yet notified, the petitioners can still prefer an application under Section 140 and/or under Section 163-A of the MV W.P.(C) No.24028 of 2024 Page 14 of 42 Act, as the case may be, Thus, the provisions of Section 140, 163A and 166 of the MV Act, as it stood before its amendment vide amending Act of 2019 (Act 32 of 2019) would continue to operate with full vigour till such time Section 50 to 57 of the amending Act of 2019 is notified in the Official Gazette.
***
10. It may be mentioned that the respondent No.2 has referred to the case of Vinod Gurudas Raikar Vrs. National Insurance Co. Ltd, AIR 1991 SC 2156:
(1991) 4 SCC 333, where the Supreme Court of India had refused to condone the delay in filing claim petition. The said ratio is not found applicable because in the said case, it was held that once the MV Act, 1988 had come into force, there was no merit in the application filed for condonation of delay and therefore, it was held in the said case that the benefit of a repealed law could not be availed. From the facts as narrated herein before the facts of the cited case is totally distinguishable.
In the present case in hand, the provisions of Section 53 of the amending Act of 2019 has not been notified and had not come into force, as such, the provisions of Section 166 of the MV Act, as it stood before amending Act of 2019 had been enacted and received the assent of the President would continue to prevail.
11. Accordingly, the Court is inclined to hold that the petitioners have been able to make out a case that W.P.(C) No.24028 of 2024 Page 15 of 42 the rejection of their claim petition by the learned Tribunal was ex facie erroneous. Accordingly, the Court has no hesitation to set aside and quash the impugned order dated 03.10.2019 passed by the learned Member, MACT, Barpeta in MAC Case No.157 of 2019. Accordingly, the claim petition filed by the petitioners, being MAC Case No.157 of 2019 stands restored to file before the said learned Tribunal. The said learned Tribunal shall proceed with the claim petition of the petitioners in accordance with law."
6.6. In Gohar Mohammed Vrs. Uttar Pradesh State Road Transport Corporation, (2022) 9 SCR 43 it has been observed thus:
"29. As per the Rules, in the event of a road accident, the investigation must be started immediately on receipt of information by the police officer of the police station concerned. The Investigating Officer shall inspect site of accident, take photographs/ videos of scene and vehicle involved, followed by preparation of site plan drawn to scale as to indicate the width of road(s) as the case may be and other relevant factors including the persons and vehicles involved in the accident. In a case of injury, the Investigating Officer shall take photographs of the injured in the hospital and shall conduct spot enquiry examining the eyewitnesses/bystanders. The intimation regarding the accident is required to be furnished by Investigating Officer within 48 hours to the Claims Tribunal in the shape of First Accident Report (FAR) in Form-I. It is further required to be W.P.(C) No.24028 of 2024 Page 16 of 42 sent to the Nodal Officer of the insurance company on having particulars of the insurance policy. The injured/victim(s), legal representative(s), State Legal Services Authority, insurer shall also be provided the copy of Form-I and the same must be uploaded on the website of the State Police, if available.
30. It would be the duty of the Investigating Officer to inform the injured/victim(s)/legal representative(s) regarding their rights by supplying Form-II attaching flow chart within 10 days specifying the scheme to seek remedial measure. It would be the duty of the Investigating Officer to ask the information in Form-III and Form-IV from the driver(s) and the owner(s) respectively within 30 days. As per the new regime, on receiving the information, Interim Accident Report (IAR) shall be submitted by the Investigating Officer to the Claims Tribunal within 50 days in Form V along with relevant documents. A copy of the said IAR shall be furnished to the insurance company of the motor vehicle(s) involved in the road accident, victim(s)/claimant(s), State Legal Services Authority, insurer and General Insurance Council. The Investigating Officer or the insurance company shall have right to verify the details of the driver and the owner by using the VAHAN App or shall take the help of Registering Authority. Investigating Officer is duty bound to take the relevant details from the victim(s) or the legal representative(s), as the case may be and furnish the details within 60 days in Form-VI. Form-VI-A is modulated to the minor children, who are in need W.P.(C) No.24028 of 2024 Page 17 of 42 of care and protection in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015.
31. On failure to submit the relevant information and documents, as required in Forms III, IV and VI by the driver(s), owner(s), claimant(s) or any information by the insurance company, the Investigating Officer may ask for direction to the stakeholder(s) before the Claims Tribunal to furnish such information within 15 days. The registering authority is duty bound to verify the licence of driver, fitness and permit of the vehicle(s) involved in the accident and shall supply such information within 15 days to the Investigating Officer. Similarly, for the purpose of issuance of medico legal report or the post-mortem report, the hospital is required to furnish such information to the Investigating Officer within 15 days.
32. The Investigating Officer shall within 90 days compile all relevant documents and material in the form of Detailed Accident Report (DAR) in Form-VII accompanying site plan Form-VIII, mechanical inspection report Form-IX, verification report Form- X and the report under Section 173 Code of Criminal Procedure (Cr.P.C.) It would be the duty of the registering authority to verify the registration certificate, driving licence, fitness and permit in respect of the vehicle(s) involved in the accident and the same is required to be submitted within 15 days to the Investigating Officer to complete the IAR and DAR. The extension of time limit to file IAR and DAR is only permissible where W.P.(C) No.24028 of 2024 Page 18 of 42 the Investigating Officer approaches the Claims Tribunal in cases where parties reside outside the jurisdiction of the Court or where the driver‟s licence is issued outside the jurisdiction of the Court or where the victim(s) have suffered grievous injuries and are undergoing continuous treatment. Thus, the Investigating Officer shall furnish FAR within 48 hours, IAR within 50 days, complete the investigation within 60 days and file DAR within 90 days. Copy of DAR shall be furnished to the victim(s), owner(s)/driver(s) of the vehicle(s), the insurance company involved and the State Legal Services Authority including the Nodal Officer of the insurance company and the General Insurance Council.
33. On perusal of the above, it is clear that to carry out the purpose of the provisions of Sections 159 and 160 of the M.V. Amendment Act, the Officer In- charge of the police station and the registering authority are required to act upon in a manner as prescribed in the Rules within the period as specified, thereby on receiving the information of accident, the complete information regarding such accident is to be made available before the Claims Tribunal within the time limit without delay. As per Rules, the failure to perform the duties by the police officer may entail severe consequences as envisaged under the provisions of the State Police Act. Thus, legislative intent is clear that on reporting a road accident the Investigation Officer must complete all his action within time frame and shall act as facilitator to the victim(s)/claimant(s), insurance company by furnishing all details in W.P.(C) No.24028 of 2024 Page 19 of 42 prescribed forms, thereby claimant(s) may get damages/compensation without delay."
6.7. It may be noteworthy to have regard to decision of the Madras High Court the case of Malaravan Vrs. Praveen Travels Private Lilmited, 2023 SCC OnLine Mad 5467. The following observations made therein are relevant:
"History of limitations to petitions for compensation:
6. Before dealing with the merits of the case, it is necessary to deal with how the Law relating to Limitation arose in the Motor Vehicles Act.
7. The first statutory intervention with respect to Motor Vehicles came under the Motor Vehicles Act, 1939. This legislation was in force for nearly fifty years. Under Section 110A of the Motor Vehicles Act, the period of limitation for the purpose of making a claim was "six months" from the date of the accident. The rigour of the Section was softened by a proviso being added to the said Section. Under that proviso, it was left to the discretion of the Motor Accidents Claims Tribunal to condone the delay in filing the petition claiming compensation if "sufficient cause" had been shown. This applied for any length of delay and it was not confined to any particular period.
8. The Motor Vehicles Act of 1939, was repealed by the consolidated legislation in 1988. The said Motor Vehicles Act of 1988 came into force on 01.07.1989. Under the new Act, Section 166 was introduced. The period of limitation for filing a claim was six months. The unbridled discretionary W.P.(C) No.24028 of 2024 Page 20 of 42 power granted to the Court under the proviso to Section 110A was taken away, though not in its entirety, but was confined only to a further six months period. This led to a lot of litigations as the claims were filed after the condonable period.
9. Taking into consideration the difficulties that have been caused to the claimants, the Parliament amended Section 166 of the Motor Vehicles Act of 1988. The proviso which restricted the power of the Tribunal to condone the delay only upto six months (beyond the original period of six months) was deleted. This was as per Act 56 of 1994. The said amendment came into force on 14.11.1994.
10. Interpreting the amended Section 166 of the Act, the Supreme Court was pleased to hold in Dhannlal Vrs. D.P. Vijayvargiya, (1996) 4 SCC 652 as follows:
„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 escapes death some of such victims are hospitalized for months if not for years...‟ W.P.(C) No.24028 of 2024 Page 21 of 42
11. By virtue of this Judgment, persons approached the Court after any length of time. The provisions stood still, till the new amendment to Section 166 of the Act. Under the new Section 166 which came with effect from 01.04.2022, the period of limitation has been re-introduced. Section 166 reads as follows: ***
12. Under this provision no claim can be entertained beyond the period of six months from the date of the accident. Perhaps this has worked on the mind of the learned Judge to come to the conclusion that the MACTOP filed by the Civil Revision Petitioner is barred.
13. Mr. N. Vijayaraghavan, the learned Amicus Curiae would take me to the history behind Section 158(6) of the Motor Vehicles Act (prior to Section 159).
According to him, the said Section was introduced by the Parliament under Act 56 of 1994 with effect from 14.11.1994. He would state that this was in recognition of "Epistolary Jurisdiction" developed by the Supreme Court in public interest litigations. He would state that by virtue of Section 158(6), an FIR registered by the Police was mandated to be filed before the jurisdictional Claims Tribunal as well as before the State Legal Services Authority. He would bring to my notice that Section 158(6) (now Section 159) was never given life till the substantial amendments were made on 01.04.2002.
14. On 01.04.2022, Chapter XI to the Motor Vehicles Act was introduced. It is the submission of the learned Amicus that Section 159 [Pari materia to W.P.(C) No.24028 of 2024 Page 22 of 42 158(6)] has to be read along with the newly introduced Sections. He adds Section 159 will have to be read along with the Rules which have been notified by the Government of India titled to the "Central Motor Vehicle Rules". Section 159 reads as follows:
„159. Information to be given regarding accident.--
The police officer shall, during the investigation, prepare an accident information report to facilitate the settlement of claim in such form and manner, within three months and containing such particulars and submit the same to the Claims Tribunal and such other agency as may be prescribed.‟
15. Section 159 mandates that on the occurrence of the accident the police should file FIR and when read with the rule send a copy of the same within 48 hours within the jurisdictional MACT. This in line with 150A of the Central Motor Vehicle Rules (CMV). He would state that the procedure that has been found gets inspiration from the Judgment of the Hon'ble Mr. Justice J.R. Midha (As His Lordship then was) of the Delhi High Court in R. Rajesh Tyagi I to Rajesh Tyagi IV.
*** Shift from right to duty:
20. The Parliament taking note of such a rapid development in Information Technology introduced Section 166(3) and 166(4) of the Motor Vehicles Act. These Sections have to be read along with W.P.(C) No.24028 of 2024 Page 23 of 42 Rule 150A read with Annexure XIII of Central Motor Vehicles Rules with Forms I to IX. If they are read so, then it is no more the right of an accident victim to file a claim petition under Section 166 but it has bloomed into a full fledged duty on the part of the police. The police on investigation have to file an FAR (First Accident Report), IAR (Interim Accident Report) and DAR (Detailed Accident Report). As per Rule 18 of Annexure XIII, it has been mandatory on the Claims Tribunal to kick start the compensatory mechanism. Rule 21 of the Central rules ensures that the DAR filed by the police shall be treated as a Claim Petition.
21. Taking note of all these developments, the Supreme Court of India rendered a Judgment in Gohar Mohammed Vrs. Uttar Pradesh State Road Transport Corporation in S.L.P.(C). No. 32448 of 2018. A reading of this Judgment goes to show that the Police are no more playing a mere role of an Investigating Authority and stopping with mere parting of information. They are mandated by the Parliament to file reports with the Claims Tribunal, which should treat the same as a claim petition.
The claimants have been freed from the shackles and are no more burdened to search for the documents necessary for filing a claim. The duty to report is now the police and the duty to process the said information given by the police and uploaded on to the website lies on the Tribunal. When access is given to the Tribunal to an FIR and the other details which have been uploaded by the police the claimant need not be made to run around or suffer from a fear that his petition is W.P.(C) No.24028 of 2024 Page 24 of 42 barred by time. It is the duty of the Claims Tribunal to access the information available to it and process the claim and give succour to the victims. It is not an advisorial system as was practiced before 01.04.2022 other parts of India (before 12.09.1979 in Tamil Nadu) but today it is a people oriented justice delivery Tribunal.
22. It is seen that the police is required to prefer an Accident Information Report and furnish the information with the jurisdictional Motor Accidents Claims Tribunal and other Stakeholders are specified. It is here that the compilation made ready by the Hon‟ble Mr. Justice J.R. Midha (Retd) presently Senior Advocate of the Supreme Court of India become relevant.
23. For the ready understanding, I am extracting the new timelines that have come under the Central Motor Vehicles Act, 2022.
„9. The time lines prescribed by the Central Motor Vehicles Rules, 2022 for expeditious adjudication of motor accident claims are as under:--
(i) The Police has to file Within 48
First Accident Report hours of the
(FAR) in Form-I before accident
MACT
(ii) The Driver of the Within 30
offending vehicle has to days of the
submit the the Driver‟s accident
Form III to the Police
(iii) The Owner of the Within 30
W.P.(C) No.24028 of 2024 Page 25 of 42
offending vehicle has to days of the
submit the Owner‟s accident
Form-IV to the Police
(iv) The Police, on Within 50
verification of the days of the
Driver‟s and Owner‟s acccident
accident Forms, has to
submit Interim Accident
Report (IAR) in Form-V
before MACT
10. The Central Motor Vehicles Rules, 2022 incorporated the flowchart of the Scheme framed by Delhi High Court in Rajesh Tyagi‟s Case which is reproduced hereunder:--
W.P.(C) No.24028 of 2024 Page 26 of 4224. Taking note of this development in Gohar Mohammed Vrs. Uttar Pradesh State Road Transport Corporation in S.L.P.(C). No. 32448 of 2018, the Supreme Court was pleased to hold as follows:
„29. As per the Rules, in the event of a road accident, the investigation must be started immediately on receipt of information by the police officer of the police station concerned. The Investigating Officer shall inspect site of accident, take photographs/videos of scene and vehicle involved, followed by preparation of site plan drawn to scale as to indicate the width of road(s) as the case may be and other relevant factors including the persons and vehicles involved in the accident. In a case of injury, the Investigating Officer shall take photographs of the injured in the hospital and shall conduct spot enquiry examining the eyewitnesses/bystanders. The intimation regarding the accident is required to be furnished by Investigating Officer within 48 hours to the Claims Tribunal in the shape of First Accident Report (FAR) in Form I. It is further required to be sent to the Nodal Officer of the insurance company on having particulars of the insurance policy. The injured/victim(s), legal representative(s), State Legal Services Authority, insurer shall also be provided the copy of Form I and the same must be uploaded on the website of the State Police, if available.W.P.(C) No.24028 of 2024 Page 27 of 42
30. It would be the duty of the Investigating Officer to inform the injured/victim(s)/legal representative(s) regarding their rights by supplying Form II attaching flow chart within 10 days specifying the scheme to seek remedial measure. It would be the duty of the Investigating Officer to ask the information in Form III and Form IV from the driver(s) and the owner(s) respectively within 30 days. As per the new regime, on receiving the information, Interim Accident Report (IAR) shall be submitted by the Investigating Officer to the Claims Tribunal within 50 days in Form V along with relevant documents. A copy of the said IAR shall be furnished to the insurance company of the motor vehicle(s) involved in the road accident, victim(s)/claimant(s), State Legal Services Authority, insurer and General Insurance Council. The Investigating Officer or the insurance company shall have right to verify the details of the driver and the owner by using the VAHAN App or shall take the help of Registering Authority. Investigating Officer is duty bound to take the relevant details from the victim(s) or the legal representative(s), as the case may be and furnish the details within 60 days in Form VI. Form VIA is modulated to the minor children, who are in need of care and protection in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015.
W.P.(C) No.24028 of 2024 Page 28 of 4231. On failure to submit the relevant information and documents, as required in Forms III, IV and VI by the driver(s), owner(s), claimant(s) or any information by the insurance company, the Investigating Officer may ask for direction to the stakeholder(s) before the Claims Tribunal to furnish such information within 15 days. The registering authority is duty bound to verify the licence of driver, fitness and permit of the vehicle(s) involved in the accident and shall supply such information within 15 days to the Investigating Officer. Similarly, for the purpose of issuance of medico legal report or the post-mortem report, the hospital is required to furnish such information to the Investigating Officer within 15 days.
32. The Investigating Officer shall within 90 days compile all relevant documents and material in the form of Detailed Accident Report (DAR) in Form VII accompanying site plan Form VIII, mechanical inspection report Form IX, verification report Form X and the report under Section 173 Code of Criminal Procedure (Cr.P.C.). It would be the duty of the registering authority to verify the registration certificate, driving licence, fitness and permit in respect of the vehicle(s) involved in the accident and the same is required to be submitted within 15 days to the Investigating Officer to complete the IAR and DAR. The extension of time limit to file IAR and DAR is only permissible where the W.P.(C) No.24028 of 2024 Page 29 of 42 Investigating Officer approaches the Claims Tribunal in cases where parties reside outside the jurisdiction of the Court or where the driver's licence is issued outside the jurisdiction of the Court or where the victim(s) have suffered grievous injuries and are undergoing continuous treatment. Thus, the Investigating Officer shall furnish FAR within 48 hours, IAR within 50 days, complete the investigation within 60 days and file DAR within 90 days. Copy of DAR shall be furnished to the victim(s), owner(s)/driver(s) of the vehicle(s), the insurance company involved and the State Legal Services Authority including the Nodal Officer of the insurance company and the General Insurance Council.
33. On perusal of the above, it is clear that to carry out the purpose of the provisions of Sections 159 and 160 of the M.V. Amendment Act, the Officer In-charge of the police station and the registering authority are required to act upon in a manner as prescribed in the Rules within the period as specified, thereby on receiving the information of accident, the complete information regarding such accident is to be made available before the Claims Tribunal within the time limit without delay. As per Rules, the failure to perform the duties by the police officer may entail severe consequences as envisaged under the provisions of the State Police Act. Thus, legislative intent is W.P.(C) No.24028 of 2024 Page 30 of 42 clear that on reporting a road accident the Investigation Officer must complete all his action within time frame and shall act as facilitator to the victim(s)/claimant(s), insurance company by furnishing all details in prescribed forms, thereby claimant(s) may get damages/compensation without delay."
25. A perusal of the rules, the Judgment of the Supreme Court and the timeline which has been set forth above would clearly show that, the claim petition need not be commenced only by way of presentation of the petition under Section 166. This is clear from Section 166(4) which states that a report filed by the police to the concerned Authorities including the stakeholders, Insurance Companies and the jurisdictional Motor Accidents Claims Tribunal should be treated as the Claim Petition.
26. During the course of arguments, I asked the learned Amicus Curiae if there being no bar under Section 166(3) excluding the application of Limitation Act, whether Section 29(2) of the Limitation Act can be applied and Section 5 of the Act to be introduced for the purpose of condonation of delay. I asked this question because I could not imagine that under the constitutional governance which has been placed from 26.01.1950, the State which promises Justice-- Socio, Economic and political, can be even more harsh than the colonial legislation under Section 110A of the Motor Vehicles Act of 1939.
W.P.(C) No.24028 of 2024 Page 31 of 4227. The learned Amicus Curiae drew my attention to the two Judgments of the Kerala High Court in (i) Vimala Jose Vrs. Aboobacker in O.P.(MAC) No. 136 of 2022 dated 02.12.2022 and (ii) Akshay Raj Vrs. Ministry of Law and Justice Legislative Department rep. By the Secretary, IV Floor, A Wing, Shastri Bhavan, New Delhi in O.P.(MAC) No. 6 of 2023 dated 23.01.2023 and pointed out that Section 5 was made applicable by the Kerala High Court but their operation has been kept in abeyance by the Supreme Court of India. Since the issue is pending before the Supreme Court of India though I prima facie wanted to adopt the view taken by the Kerala High Court in Akshay Raj‟s case, I am refraining from to do so.
28. The Parliament in its wisdom has ensured that the hapless victims of motor accidents need not depend upon stakeholders in Court for the purpose of initiation of proceedings. The proceeding itself is initiated on the basis of the report filed by the Police Authorities. In effect, the petition under Section 166 is only a reminder to the Court that the police have already filed the Detailed Accident Report containing all the requisite details like the First Information Report, Interim Accident Report, First Accident Report and therefore, it has to take up the said report as a claim petition. In other words, the claim petition is only a reminder to the Motor Accidents Claims Tribunal to perform its duty under W.P.(C) No.24028 of 2024 Page 32 of 42 Rule 21 Annexure XIII of Central Motor Vehicles Rules and to process the claim petition.
29. In view of the above discussion, it is clear that in cases where any request is filed and accessible by the Tribunal, then there will be no question of six months limitation arising. The issue of six months limitation will arise only in case where no FIR has been registered by the Police and no report has been sent/uploaded.
30. The members of the Bar represented that the Police are not sending the report and hence, there arises a problem.
31. A reading of Section 166(4) shows that if any report of the accident is forwarded to it under Section 159, the same shall be treated as an application for compensation. It is no more the discretion of the police. Rule 4(A)(5)(1) of the Tamil Nadu Rules read with the Central Rules make it mandatory. It has now become a statutory duty of the Police to sent a report. It is pertinent to point out that the amendment under Section 166(4) does not speak about the Interim Accident Report (IAR), First Accident Report (FAR) and Detailed Accident Report (DAR) but speaks about "any report that has been sent by the police". Therefore, even if an FIR sent by the police to the Tribunal, the same should be treated a Claim Petition.
W.P.(C) No.24028 of 2024 Page 33 of 4232. The upshot of the discussion is that on registration of an FIR, a claimant is entitled to present the petition without the fear of it being thrown out, on the ground of limitation. This would be the correct reading of the present legal dispensation in all cases where FIR is registered within six months, of the date of any motor accident which takes place after 01.04.2022.
33. Consequently, applying the Law discussed above to the facts of the present case, this Civil Revision petition is allowed. The FIR having been registered, in this case, within two days from the date of the accident on 13.10.2022 by Oragadam Police Station, the petition filed in M.A.C.T.O.P.(SR). No. 3280 of 2023 has to only be treated as a reminder to the Court to call for the FIR and other reports and register the same as a Claim Petition."
6.8. The Kerala High Court in the case of Sathy Vrs. Dileep, I.S., OP (MAC) No. 51 of 2022, vide Judgment dated 01.06.2022, observed 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.W.P.(C) No.24028 of 2024 Page 34 of 42
Legislature in the wisdom on due deliberation have reintroduced the 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 01.04.2022 resulting into the impugned order. The same reads as under:
„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 23.04.2022 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 taking aid of the amended provisions of Section 140 introduced by W.P.(C) No.24028 of 2024 Page 35 of 42 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 Vrs. Bhajan Kaur and others, 2008 (3) KHC 823 = (2008) 7 SCR 1111 = 2008 INSC 612. 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 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 01.07.1989. ***
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 W.P.(C) No.24028 of 2024 Page 36 of 42 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 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 W.P.(C) No.24028 of 2024 Page 37 of 42 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 Regulation had not been passed.‟
10. Since while introducing the Act of 2019 effective from 01.04.2022, 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 W.P.(C) No.24028 of 2024 Page 38 of 42 judgment in State of Punjab and others Vrs.
Bhajan Kaur and others (supra), I am of the view that the applicability of the Act i.e., introduction of the old provisions of sub-section (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 01.04.2022, 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."
6.9. Following the view of the Kerala High Court, the Allahabad High Court in the case of Mangal Batra Vrs. Mohammad Rafeeq Visayati, Writ-C No.22096 of 2022, vide Order dated 10.08.2022 held as follows:
"11. Upon the bare reading of the aforesaid provisions, I find that second proviso to sub-Section (1) of Section 166 has been added and further sub- Section (3) and (5) have been added. Sub-Section (3) which is newly added section provides limitation of a period of six months for moving a claim petition of the occurrence of the accident.
12. Now what is material and substantially important is that limitation would run from the date of occurrence of the accident.W.P.(C) No.24028 of 2024 Page 39 of 42
13. Now it is necessary to examine the amending Act itself in order to decipher its mode of implementation. ***
14. A close scrutiny of aforesaid provisions makes it evident beyond any doubt that the amending Act, 2019 shall come into force only from the date it is notified by the Central Government in the official Gazette and there may be different dates for different provisions to be brought into force.
15. Amending provisions in question brought on Statute vide Act No. 32 of 2019, were notified to be made operative in the official Gazette by the Central Government on 25th February, 2022 to be effectively operative w.e.f. 1st April, 2022. It is clear that until such notification as noticed above, the amending provisions of the Act No. 32 of 2019 with respect of Section 166, were not brought into force and since the amending Act of 2019 did not make it retrospective from the date of its notification and did not prescribed any amendment/alteration in repeal and saving clause of the Act so as to make it applicable in respect of the accident that had taken place prior to the date of notification, I find the view taken by the Kerala High Court to be justified and, therefore, do not find any reason to defer from the same.
16. As far as the other ground is concerned regarding condoning the delay during which limitation of six months‟ period is to be exempted on the ground of the impact of pandemic Covid-19 throughout the Nation in general and in State of Uttar Pradesh in particular, I find substance in the argument as W.P.(C) No.24028 of 2024 Page 40 of 42 well. However, since I am not able to uphold the order of the Tribunal on the very first ground alone, I need not go in detail into the second argument.
17. In view of the above, the order dated 18th April, 2022 passed by the Motor Accidents Claim Tribunal is hereby set aside."
6.10. The aforesaid view expressed by the Kerala High Court has been followed by the Madras High Court in the case of Shanmathi Vrs. Ravi, CRP No.2451 of 2023, vide Order dated 19.07.2023.
6.11. In Mohd. Tibul Choudhury Vrs. Regional Manager, National Insurance Co. Ltd., 2024 SCC OnLine Gau 1984, it is held as follows:
"In light of the legal position established in the aforementioned cases, and considering that the accident occurred on 03.05.2019, prior to the enforcement of the amendment inserting sub-section (3) to Section 166 of the MV Act, 1988, I am of the opinion that the learned Tribunal made erroneous interpretation of Section 166(3) of the MV Act, 1988, under incorrect belief that the amendment was enforced on 19.8.2019. Consequently, the impugned order dated 07.11.2020 must be interfered with, and accordingly, it is set aside."
7. Examining the factual matrix of the instant case with reference to legal perspective as discussed by different Courts, this Court finds no reason to vary with the W.P.(C) No.24028 of 2024 Page 41 of 42 enunciation of opinion that sub-section (3) as inserted in Section 166 by virtue of the MV (Amendment) Act, 2019, has come into force with effect from 01.04.2022 and the law prevailing as on the date of accident would be governed.
7.1. In the present case, the accident having occurred prior to coming into force the Motor Vehicles (Amendment) Act, 2019, the learned 19.11.2021, the learned MACT has rightly held that intention of legislation behind the enactment of the provisions of Section 166 of the MV Act as well as the corresponding law is to provide necessary compensation to the victims of the road accidents and the said enactment is a benevolent piece of legislation. Ergo, the said learned Tribunal has justiciably dismissed the petition filed by the Shriram General Insurance Company Ltd. raising issue of maintainability of the claims case.
8. For the reasons ascribed hitherto and discussions made, the writ petition deserves to be dismissed.
9. The writ petition is, accordingly, dismissed, with no order as to costs.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed High Court of Orissa, Cuttack Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer The 6th January, 2025//Laxmikant/Suchitra Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Jan-2025 18:08:31 W.P.(C) No.24028 of 2024 Page 42 of 42