NEW INDIA INSURANCE CO. LTD v. SMT. SHANTI MISRA, ADULT

Unique Motor and General Insurance Co. Ltd., Bombay v. Kartar Singh and another, AIR 1965 Pun. 102; Mis. V, C. K. Bus Service (P) Ltd, Coim bat01·e and another v. H. S. Sethna and others, A.I.R. 1965 Mad. 149; Palani Ammal and others v. The Safe Service Ltd. Salem and others, I.L.R. [1965) 2 Mad. 145: Natwarlal Bhikhalal Shah v. Thakarda Khodali Kalaji and others, I.L.R. 1967 Guj. 495; Yd;lav Motor Transport Co. and others v. ]af?dish Prasad Bhimganj Ward Kora, A.I.R. 1969 Raj. 316: Thomas and others v. Messrs Hotz Hotels Ltd. and oth!ers, A.J.R. 1969 Delhi ·3; Delhi and London Bank Ltd. v. Me/moth A. D. Orchard, 4 I.A. 127; Gopeslzwar Pal v. Jiban !) Chandra Chandra Jenkins, I.T.R. 41 Cal. 1125 and Rajah Meherban-l-Doston Sri Raja Row V. K. M. Surya Row Bilhadur, Sirdar, Rajahmundry Sircar and Rajah of Pittapur v. G. Venkata Sublbq Row and five others, I.LR. 34 Mad . 645. referred to. Observations contra in Khatumal Ghanslzamdas v.

Abddul Qadir Jamaluddin and others. AIR 1961 M.P. 295; Kumari Sushma Mehta v. Central Provinces Transport Services Ltd. and others, AIR 1964 M.P. 133 and The Bihar Co operative Motor Vehicles Insurance Society Ltd. v. Rameshwar Rawt and others, AIR 1970 Patna 172, disapproved. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 210 of 1975. From the Judgment and Order dated the 13th October, 1971 of the Allahabad High Court in Special Appeal No. 114 of 1969. D. D. Chawla and H. K. Puri for the Appellant. J. B. Goyal, D. P. Mukherjee and S. P. Singh Nos. 1-3. for Respondents .. ,_, The Judgment of the Court was delivered by UNTWALIA, J.-This is an appeal by certificate of fitness granted' by the Allahabad ,.High Court. The question of law which falls determination in this appeal is whether an application for compensa tion filed under section llOA of the Motor Vehicles Act, 1939 (for brevity, the Act), arising out of an accident which occurred more than 60 days before the constitution of the Motor Accidents Claims· Tribunal under section 110 could be entertained by the Tribunal or the remedy of the aggrieved person was to institute a civil suit. • in which On the 11th September 1966 occurred an accident Shri Amar Nath Misra, husband of respondent no.

1 and father of respondents 2 and 3 met his death due to collision between his motor cycle and a truck owned by appellant no. 2 and insured with appellant no. 1. A cause of action accrued to the respondents 1, 2 and 3 (here in after called the respondents) to claim compensation as legal repre sentatives of the deceased under the Indian Fatal Accidents Act, 1855. A suit could be brought under Article 82 of the Limitation Act, 196'.J within two years of the occurrence of the accident. But in the mean time the Government of Uttar Pradesh constituted the Claims Tribunaf under section 110 of the Act, by a notification published in the Gazette of the 18th March, 1967. The respondents filed an application under section 1 lOA on the 8th July, 1967. The appellants objected to jurisdiction of the Tribunal to entertain the application. The Tribunal over-ruled the objection and held that it had jurisdiction to entertain the application.

The appellants filed a writ application in the High Court which was allowed by a learned single Judge. In appeal filed by the respondents there was a difference of opinion between the judges constituting the Division Bench. On reference to a third judge the ultimate view taken by the High Court was that the Tribunal had iudsdiction to entertain this application. Hence this appeal. The Act was amended by Central Act 100" of 1956 with effect from tbe 16th February 1956. The original section 110 was doleted and new sections 110 to llOF were introduced. The Claims Tribunals. however, were not constituted by the State Governments at one and the same time.. They were constituted with defferent dates for differnt areas. Until and unless the Claims Tribunals were constitutcci provisions of the new sections introduced in the year 1956 could not be availed of. But as soon as a Claims Tribunal was constituted the juris diction of the Civil Court was barred by section 11 OF . which reads as follows: .. "Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Oaims Tribunal for that area, taken or to be and no injunction in respect of any action taken by or before the Claims Tribunal in respect of claim for compensation shall be granted by the Civil Court.

" . But difficulties arose in giving full effect to the bar of jurisdiction of the Civil Court because of the language of section 11 OA prnviding for the filing of an application for compensation. There could n?t ~e any debate or dispute that if an accident occurred after the constttut10n of the Claims Tribunal, the only remedy of the claimant was to fi'.e an application under section 11 OA. The jurisdiction of the _Civil Court in such a case was ousted in express language. Suits which had been instituted prior to the constitution of the Claims Tribunal remained un In a third type affected and had to proceed to disposal in Civil Courts. of case· also there could not be much scope for debate where an acci dent had occurred prior to the constitution of the Tribunal and remedy of the suit was barred on the date of such constitution. A barred remedy under no circumstances was meant to be revived under section llOA. But the difficulty arose in cases where accidents had occurred prior to the constitution of the Claims Tribunal, the remedy In such of action in Civil Court was alive but no suit had been filed. cases the vested right of action was not meant to be extingui5hed.

The remedy of either an application under section llOA or a civil must be available; surely not both. Majority of the High Courts have expressed the view that in such a situation the only remedy available was that of filing an application before the Tribunal and the jurisdiction oI Civil Court was barred. Vide Unique Motor and General Insurance Co. Ltd., Bombay v. Kartar Singh and another; ( i) M / s V. C. K. Bus Service (P) Ltd. Coimbatore and another v. H. B. Sethna and others; (') Palani Ammal and others v. The Safe Service, Ltd., Salem and others; (3) Natverlal Bhikhalal Shah v. Thakarda Khodaii Kalaji and others; ( 4 ) Yadav Motor Transport Co. and others v. Jagdish Prasad Bhimgdnj Ward Kota( 5 ) and Thomas and others v. Messrs Hotz Hotels Ltd. and others( 6 ). A contrary view was taken by the Madhya Pradesh High Court in Khatumal Ghanshamdas v. Abddul Qadir Jamaluddin and others( 7 ); K,umari Sushma Mehta v.

Central Provinces Transport Services Ltd. and others( 8 ). In the first case of Madhya Pradesh observations were obiter dicta because on facts it was a case of a pending suit. Similar obiter dicta were made by a Bench of the Patna High Court following the Madhya Pradesh decisions in case of The Bihar Co-operative Motor Vehicles, Insurance Societv Ltd. v. Rameshwar Raut and others( 9 ). The question falls for determina tion in this Court for the first time and we have to decide which of the two views is correct. We shall now read section 11 OA as it 'stood at the relevant lime : "110A. (1) An application for compensation arising out of an accident of the nature specified in sub-section ( f) of section 110 ma:v be made- (a) by the person who has sustained the injury; or (I) A. I. R. 1965 Punjab, 102. (3) I. L. R. [1965] 2 Madras, 145. (5) A. I. R. 1969 Rajasthan, 316. (7) A. J. R. 1961 Madhya Pradesh, 295.

(2) A. J. R. 1965 Madras, 149. (4) I. L. R. [1967] Gujarat, 495. (6) A. J. R. 1969 Delhi, 3. (8) A. J. R. 1964, M. P., 133. H (9) A. J. R. 1970, Patna, 172 (paras 7 and 8) • f} j 1 (b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or ( c) by any agent duly authorised by the person injured for all or any of the legal representatives of the de ceased, as the case may be; Provided that where all the legal representatives of the. deceased have not joined in any such application for com pensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall he impleaded as respondents to the application. ( 2) Every application under sub-section ( 1) shall be made to the Claims Tribunal having jurisdiction over the nrea in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed.

(3) No application for compensation under this section shall be entertained unless it is made within sixty days of the occurrence of the accident : Provided that the Claims Tribunal may entertain application after the expiry of the said period of sixty days if it is satisfied that the applicant was prevented b¥ sufficient cause from making the application in time. " A period of six months was substituted in place of sixty days in sub section (3) by Act, 56 of 1969 with effect from 2-3-1970. On the plain language of sections llOA and llOF there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not It is a well-established proposition that such a of substantive law. change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum.

He will have a vested right of action but not If by express words the new forum is made a vested right of forum. available on~y to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it retrospective. The expressions "arising out of an accident" occurring in sub-section (1) and "over the area in which the accident occurred", mentioned in sub-section (2) clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred To that ex tent there was no difficulty in giving the answer in a simple way. But the provision of limitation of 60 days contained in sub-section (3) created an obstacle in the straight application of the well-established If the accident had occurred within 6() days prior to principle of law. the constitution of the Tribunal then the bar of limitation provided in sub-section ( 3) was not an impediment.

An· application to the Tribu nal could be said to be the only remedy. If such an application, due to one reason or the other, could not be made within 60 days then the • : ... • . -.. ' NEW INDIA INSURANCE v. SHANTI MISRA (Untwalia, 1.) 271 , Tribunal had the power to condone the delay under the provjso._ But if the accident occurred more than 60 days before the constitution of the Tribunal then the bar of limitation provided in sub-section ( 3) of section 11 OA on its face was attracted. This difficulty of limitation led most of the High Courts to fall back upon the proviso and say that such a case will be a fit one where the Tribunal would be able to condone the delay under the provifo to sub-section (3), and led others to say that the Tribunal' will have no jurisdiction to entertain such an , application and the remed1Y of going to the Civil Court in such a situ ation was not barred under section 110F of the Act.

While taking the latter view the High Court failed to notice that primarily the law en grafted in sections 1 lOA and 1 lOF was a law relating to the change of forum. In our opinion in view of the dear and unambiguous language of sections 110A and llOF it is not reasonable and proper to allow the law of change of forum give way to the bar of limitation provided in sub-section (3) of section 110A. It must be vice versa. The change of the procedural law of forum must be given effect to. The under lying principle of the change of law brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the Claims Tribunal on payment of a nominal court fee where as a large amount of ad valorem court fee was required to be It is legitimate to think that the legislature did paid in Civil Court. not think it necessary to affect the pending suits but wanted the cheap remedy to be available as soon as the Tribunal was constituted by the State Governments, in all cases, irrespective of the date of the acddent, provided the remedy of going to the Court was not barred on the date of the constitution of the Tribunal.

Then, how is the difficulty of limi tation in such cases to be solved is the question. In our opinion taking recourse to the proviso appended to section (3) of section 110A for excusing the delay made. in the filing of the application between the date of the accident and the date of the constitution of the Tribunal' is not correct. Section 5 of the Limitation Act, 1963 or the proviso to sub-section (3) of the section llOA of the Act are meant to condone the 'default of the party on the ground of sufficient cause. But if a party is not able to file an application for no fault of his but because the Tribunal was not in existence, it will not be a case where it can be said that the "applicant was prevented by sufficient cause from making the application in time" within the mean ing of the proviso. The time taken between the date of the accident and the constitution of the Tribunal cannot be condoned under the proviso.

Then, will the application be barred under sub-section ( 3) of section llOA? Our answer is in the the negative and or two reasons : ( 1) Time for the purpose of filing the application tmder section l1 OA did not start running before the consti tution of the Tribunal. Time had started running for the filing; of the suit but before it had expired the. forum was changed. And for the purpose of tile A n •. to have changed forum, time could not be deemed started running before a remedy of going to the new forum is made available. (2) Even though by and large the law of limitation has been held to be a procedural law, there arc excep tions to this principle. Generally the law of !imita tion which is in vogue on the date of the commenc~­ ment of the action governs it. But there are certain exceptions to this principle. The new law of limita tion providing a longer period cannot revive a dead remedy. Nor can it suddenly extinguish vested right of action by providing for a shorter period of limita tion.

In Delhi and London Bank, Limited v. Me/moth A. D. Orchard(1) Sir Barnes Peacock delivering the judgment on behalf of the Board' said at page 135 : • "Indeed, if the construction put upon the- Act by· High Court at Bombay, and by the Chief Court in the Pun jab, is correct, a judgment creditor could not, after the three years, have enforced a judgment which was in force in the Regulation Provinces when Act XIV of 1859 was passed, or a judgment which was in force in the Punjab at the when the Act was extended to that province, however dili- gent he might have been in endeavouring to enforce his judg- ment, and however unable, with the use of the utmost dili- gence, to get at the property of his debtor. Such a construc- tion would cause great inconvenience and injustice, and give the Act an operation which would retrospectively deprive the creditor· of a right which he had under the law as it existed in the Regulation Provinces at the time of the passing of the Act, and in the Punjab at the time of introduction of it.

" In Gopeshwar Pal v. Jiban Chandra Chandra(2), Jenkins, C.L delivering the judgment on behalf of the majority of the Full Bench said at page 1141 : "Here the plaintiff at the time when the amending Act was passed had a vested right of suit, and we see nothing in the Act as amended that demands the construction that the plaintiff was thereby deprived of a right of suit vested in him· at the date of the passing of the Amending Act. It is not (in our opinion) even a fair reading of section 184 and the third Schedule of the Bengal Tenancy Act, as amended, to hold that it was intended to impose an impossible condition under pain of the forfeiture of a vested right, and we can only construe the amendment as not applying to cases where its provisions cannot be obeyed. " (1) 4 Indian Appeals, 127. (2) I. L. R. XLI Calcutta, 1125. ... • ,.. ... NEW INDIA INSURANCE v. SHANTI MISRA ( Untwalia, ]. ) 2 7 3 1he majority of the Full Bench of the Madras High Court in Rajah Sahib Meharban-1-Doston Sri Raja Row V. K. M. Surya Row Baha dur Sirdar, Rajahmundry Sircar and Rajah of Pittap11r v.

G, Venkata Sub, ba Row and five others(!) has taken the same view following the Full Bench decision in Gopeshwar Pal's case at page 650. Amendment of the law of limitation could not destroy the plaintifi's right ef action which was in existence when the Act came into force. . We are con scious of the distinction which was sought to be made in the application It was said that the right could not be 9e~troyed of these principles. but recourse to suit would be available under the old law of bm1tauon. We, however, think that giving retrospective effect to the change of law in relation to the forum, in the context of the object o( the change, is imperative. That being so the principles aforesaid Jor overcoming the bar o_f limitation will be applicable. Apropos the bar of limitation provided in section 110A(3), one can say, on the basis of the authorities aforesaid that strictly speaking, the bar does not operate in relation to an application for compensation :irising out of an accident which occurred prior to the constitution of the Claims Tribunal.

But since in such a case there is a cli.ange of forum, unlike the fact of the said cases, the reasonable view to take would be that such an application can be filed within a reasonable time of the constitution of the Tribunal, which ordinarily and generally, If the would be the time of limitation mentioned in sub-section ( 3). app!ication could not be made within that time from the date of constitution of the Tribunal, in a given case, the fµrther time taken in the making of the application ma1y be held to be the reasonable time on the facts of that case for the making of the application or the delay made after the expiry of the period of limitation provided in sub section ( 3) from the date of the constitution of the Tribunal can be In any view of the condoned under the proviso to that sub-section. matter, in our opinion, the jurisdiction of the Civil Court is ousted as s_oon as the Claim~ Tribunal is constituted and the filing of the applica tion before the Tribunal is the only remedy availabie to the claimant.

On the facts of this case, we hold that the remedy available to the res pondents was to go before the Claims Tribunal and since the law was not very clear on the point, the time of about four months taken approaching the Tribunal after its constitution can be held to be either a reasonable .time or the delay of less than 2 months could well be condoned under the proviso to sub-section ( 3) of section 11 OA. For the reasons stated above, we dismiss this appeal with costs to respondents 1, 2 and 3. V.P.S. A ppeul dismissed. A c E F ,, • ,. i· (1) I. L. R. XXXIV Madras 645.