Full Judgment Text
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PETITIONER:
NEW INDIA INSURANCE CO. LTD.
Vs.
RESPONDENT:
SMT. SHANTI MISRA, ADULT
DATE OF JUDGMENT10/10/1975
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION:
1976 AIR 237 1976 SCR (2) 266
1975 SCC (2) 840
CITATOR INFO :
RF 1991 SC2156 (7)
ACT:
Motor Vehicle Act (4 of 1939), ss. 110A to 110F-
Limitation in case of accident before constitution of
Tribunal and application for compensation filed beyond 2
months of the constitution of the Tribunal.
HEADNOTE:
Section 110A(3) of the Motor Vehicles Act, 1939 before
its amendment in 1970, provided that no application for
compensation arising out of an accident of the nature
specified in s. 110(1) shall be entertained by the Claims
Tribunal unless it is made within 60 days of the occurrence
of the accident. Under its proviso, the Claims Tribunal has
power to excuse any delay in filing the application if it
was satisfied that the applicant was prevented by sufficient
cause. S. 110F bars the jurisdiction of the Civil Court, as
soon as the Claims Tribunal is constituted.
As a result of an accident in September, 1966, the
husband of the respondent died. The limitation for filing a
suit is 2 years from the date of accident under Art. 82
Limitation Act 1963. On 18th March, 1967, the State
Government constituted the Claims Tribunal under s. 110. The
respondent filed an application for compensation on July 8,
1967. The Tribunal and the High Court held that the Tribunal
could entertain the application.
Dismissing the appeal to this Court,
^
HELD: (1) The change in law effected by the
introduction of ss. 110A to 110F in 1956 was only a change
of forum, that is, a change of adjectival or procedural law
and not of substantive law. Such a 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, because, though he has a vested
right of action, he has no vested right of forum. The
expressions "arising out of an accident" occurring in s.
110A(1) and "over the area in which the accident occurred"
in s. 110A(2), and the absence of express words making the
new forum available only to causes of action arising after
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the creation of the Tribunal, show that the change of forum
was meant to operate retrospectively irrespective of when
the accident occurred. [270E-G]
(2) The underlying principle of the change of law was
to enable the claimants to have a cheap remedy of
approaching the Claims Tribunals on payment of a nominal
court-fee instead of an ad valorem amount in the Civil
Court. Pending suits are not to be affected, but the
Legislature wanted the cheap remedy to be available as soon
as a Tribunal was constituted by the State Governments, in
all cases, irrespective of the date of the accident,
provided the remedy of going to the court was not barred on
the date of the constitution of the Tribunal. [271C-E]
(3) Therefore, if the accident had occurred within 60
days prior to the constitution of the Tribunal then it could
be said that an application to the Tribunal was the only
remedy. If such an application could not be made. within 60
days, then the Tribunal has the power to condone the delay
under the proviso. But if the accident occurred more than 60
days before the constitution of the Tribunal, it could be
contended either, (a) that such a case will be a fit one
where the Tribunal would be able to condone the delay under
the proviso. But if the accident occurred more than 60 days
before the cons to entertain such an application and the
remedy of going to the Civil Court in such a situation was
not barred under s. 110F. [270H-271B]
(4) Since the change of forum is retrospective it could
not be contended that recourse to suit would still be
available under the old law of limitation [273B-C]
267
(5) But, taking recourse to the proviso to s. 110A(3)
for excusing the delay in applying to the Tribunal is not
correct. Section 5 of the Limitation Act, 1963, or the
proviso to s. 110A(3) 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 meaning of the proviso.
However, the application would not be barred under s.
110A(3), because, (a) though time had started running for
the filing of the suit, but since before it expired the
forum was changed, for the purpose of the changed forum,
time could not be deemed to have started running before the
remedy of going to the new forum is made available;. and (b)
though generally the law of limitation which is in vogue on
the date of the commencement of the action Governs it a new
law of limitation providing a longer period cannot revive a
dead remedy, and similarly a new law of limitation providing
for a shorter period cannot suddenly extinguish a vested
right of action by providing a shorter period of limitation.
[271E-272C]
Since there is a change of forum, the reasonable view
to take would be that the application can be filed within a
reasonable time of the constitution of the Tribunal, which
ordinarily and generally, would be the time of limitation
mentioned in sub-s. (3); and if the application could not be
made within that time from the date of the constitution of
the Tribunal in a given case, the further time taken may be
held to be reasonable on the facts of that case, or the
delay can be condoned under the proviso to that section.
[273E]
Therefore, in the present case, the jurisdiction of the
Civil Court is ousted as soon as the Claims Tribunal was
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constituted and the filing of the application before the
Tribunal was the only remedy available to the respondent.
Since the law was not clear on the point, the time of about
four months taken in approaching the Tribunal after its
constitution can be held to be either reasonable time or the
delay of about two months could be condoned under the
proviso to s. 110A(3). [273F]
Unique Motor and General Insurance Co. Ltd., Bombay v.
Kartar Singh and another AIR 1965 Pun. 102.; M/s. V. C. K.
Bus Service (P) Ltd. Coimbatore 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. Ydav Motor Transport Co and
others v. Jagdish Prasad Bhimganj Ward Kota, A.I.R. 1969
Raj. 316: Thomas and others v. Messrs Hotz Hotels Ltd. and
others, A.I.R. 1969 Delhi 3; Delhi and London Bank Ltd. v.
Melmoth A. D. Orchard, 4 I.A. 127; Gopeshwar Pal v. Jiban
Chandra Chandra Jenkins, I.T.R. 41 Cal. 1125 and Rajah
Meherban-I-Doston Sri Raja Row V. K. M. Surya Row Bahadur,
Sirdar, Rajahmundry Sircar and Rajah of Pittapur v. G.
Venkata Subba Row and five others, I.L.R. 34 Mad. 645.
referred to.
Observations contra in Khatunnal Ghanshamdas 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.
JUDGMENT:
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 for
Respondents Nos. 1-3.
268
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 for determination in this appeal is whether
an application for compensation filed under section 110A 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.
On the 11th September 1966 occurred an accident in
which 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 (hereinafter called the
respondents) to claim compensation as legal representatives
of the deceased under the Indian Fatal Accidents Act, 1855.
A suit could be brought under Article 82 of the Limitation
Act, 1963 within two years of the occurrence of the
accident. But in the mean-time the Government of Uttar
Pradesh constituted the Claims Tribunal under section 110 of
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the Act, by a notification published in the Gazette of the
18th March, 1967. The respondents filed an application under
section 110A on the 8th July, 1967. The appellants objected
to the 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 two judges constituting the Division Bench. On reference
to a third Judge the ultimate view taken by the High Court
was that the Tribunal had jurisdiction to entertain this
application. Hence this appeal.
The Act was amended by Central Act 100 of 1956 with
effect from the 16th February 1956. The original section 110
was deleted and new sections 110 to 110F were introduced.
The Claims Tribunals however, were not constituted by the
State Governments at one and the same time. They were
constituted with different dates for different areas. Until
and unless the Claims Tribunals were constituted the
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 jurisdiction of the Civil Court was
barred by section 110F 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
Claims Tribunal for that area, and no injunction in
respect of any action taken or to be taken by or before
the Claims Tribunal in respect of the claim for
compensation shall be granted by the Civil Court."
269
But difficulties arose in giving full effect to the bar of
jurisdiction of the Civil Court because of the language of
section 110A providing for the filing of an application for
compensation. There could not be any debate or dispute that
if an accident occurred after the constitution of the Claims
Tribunal, the only remedy of the claimant was to file an
application under section 110A. 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 unaffected and had to proceed
to disposal in Civil Courts. In a third type of case also
there could not be much scope for debate where an accident
had occurred prior to the constitution of the Tribunal and
the 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 110A. But the difficulty
arose in cases where accidents had occurred prior to the
constitution of the Claims Tribunal, the remedy of action in
Civil Court was alive but no suit had been filed. In such
cases the vested right of action was not meant to be
extinguished. The remedy of either an application under
section 110A or a civil suit 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 of Civil Court was barred. Vide Unique Motor
and General Insurance Co. Ltd., Bombay v. Kartar Singh and
another;(1) M/s V. C. K. Bus Service (P) Ltd. Coimbatore and
another v. H. B. Sethna and others.(2) Palni Ammal and
others v. The Safe Service, Ltd., Salem and others;(3)
Natverlal Bhikhalal Shah v. Thakarda Khodaji kalaji and
others;(4) Jade Motor Transport Co. and others v. Jagdish
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Prasad Bhimganj 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.
Abdul Qadir Jamaluddin and others(7); Kumari 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 the case of
The Bihar Co-operative Motor Vehicles, Insurance Society
Ltd. v. Rameshwar Raut and others(9). The question falls for
determination in this Court for the first time and we have
to decide which of the two views is correct.
We shall now read section 110A as it stood at the
relevant time:
"110A. (1) An application for compensation arising
out of an accident of the nature specified in sub-
section (1) of section 110 may be made-
(a) by the person who has sustained the injury;
or
270
(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 deceased, as the case
may be;
Provided that where all the legal representatives
of the deceased have not joined in any such application
for compensation, 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 be
impleaded as respondents to the application.
(2) Every application under sub-section (1) shall
be made to the Claims Tribunal having jurisdiction over
the area 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
the application after the expiry of the said period of
sixty days if it is satisfied that the applicant was
prevented by 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 110A and 110F 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 of substantive law. It
is well-established proposition that such a 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 a vested right of forum. If by express words
the new forum is made available only 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-
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section (1) and "over the area in which the accident
occurred", mentioned in sub-section (2) clearly show that
the change forum was meant to be operative retrospectively
irrespective of the fact as to when the accident occurred To
that extent 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 principle of
law. If the accident had occurred within 60 days prior to
the constitution of the Tribunal then the bar of limitation
provided in sub-section (3) was not an impediment. An
application to the Tribunal 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
271
Tribunal had the power to condone the delay under the
proviso. 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 110A 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 proviso to sub-
section (3), and led others to say that the Tribunal will
have no jurisdiction to entertain such an application and
the remedy of going to the Civil Court in such a situation
was not barred under section 110F of the Act. While taking
the latter view the High Court failed to notice that
primarily the law engrafted in sections 110A and 110F was a
law relating to the change of forum.
In our opinion in view of the clear and unambiguous
language of sections 110A and 110F 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 underlying
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 paid in Civil Court. It
is legitimate to think that the legislature did 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 accident, 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 limitation in such cases to be solved is the
question.
In our opinion taking recourse to the proviso appended
to subsection (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 110A
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 meaning 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
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barred under sub-section (3) of section 110A? Our answer is
in the negative and or two reasons:
(1) Time for the purpose of filing the
application under section 110A did not start
running before the constitution 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
the
272
changed forum, time could not be deemed to
have 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 are exceptions to this principle.
Generally the law of limitation which is in
vogue on the date of the commencement of the
action governs it. But there are certain
exceptions to this principle. The new law of
limitation 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 limitation.
In Delhi and London Bank, Limited v. Melmoth 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
the High Court at Bombay, and by the Chief Court in the
Punjab, 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 time when the Act was extended to
that province, however diligent he might have been in
endeavouring to enforce his judgment, and however
unable, with the use of the utmost diligence, to get at
the property of his debtor. Such a construction 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 the introduction of it."
In Gopeshwar Pal v. Jiban Chandra Chandra(2), Jenkins,
C.J. 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."
273
The majority of the Full Bench of the Madras High Court in
Rajah Sahib Meharban-I-Doston Sri Raja Row V. K. M. Surya
Row Bahadur,Sirdar,Rajahmundry Sircar and Rajah of Pittapur
v. G. Venkata subba Row and five other (1) has taken the
same view following the Full Bench decision in Gopeshwar
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Pal’s case at page 650. Amendment of the law of limitation
could not destroy the plaintiff’s right of action which was
in existence when the Act came into force. We are conscious
of the distinction which was sought to be made in the
application of these principles. It was said that the right
could not be destroyed but recourse to suit would be
available under the old law of limitation. We,however, think
that giving retrospective effect to the change of law in
relation to the forum, in the context of the object of the
change, is imperative. That being so the principles
aforesaid for overcoming the bar of 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 arising out of
an accident which occurred prior to the constitution of the
Claims Tribunal. But since in such a case there is a change
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 would be the time
of limitation mentioned in sub-section (3). If the
application could not be made within that time from the date
of the constitution of the Tribunal, in a given case, the
further time taken in the making of the application may 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 subsection
(3) from the date of the constitution of the Tribunal can be
condoned under the proviso to that sub-section. In any view
of the matter, in our opinion, the jurisdiction of the Civil
Court is ousted as soon as the Claims Tribunal is
constituted and the filing of the application before the
Tribunal is the only remedy available to the claimant. On
the facts of this case, we hold that the remedy available to
the respondents 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 in 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 110A.
For the reasons stated above, we dismiss this appeal
with costs to respondents 1, 2 and 3.
V.P.S. Appeal dismissed.
274