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The New India Assurance Co. Ltd. and ors. Vs. Smt. Shanti Misra and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 2 of 1969
Judge
Reported inAIR1970All408
ActsMotor Vehicles Act, 1939 - Sections 110 to 112F; Limitation Act - Sections 5 and 29
AppellantThe New India Assurance Co. Ltd. and ors.
RespondentSmt. Shanti Misra and ors.
Appellant AdvocateP.C. Srimal, Adv.
Respondent AdvocateR.N. Trivedi, Adv.
DispositionPetition allowed
Excerpt:
.....the bar provided by section 110-f is only in respect of such matters as can be entertained by the claims tribunal. it is & well-settled proposition of law that thenew law of limitation would not revive a barred right. similarly, it may be taken to be equally well settled that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of litigant to enforce his right in a court of law. it is true that the proviso to sub-section (3) of section 110-a empowers the tribunal to entertain an application after the expiry of the period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. but the legislature has by enacting the proviso provided that the claims tribunal may entertain the..........u.p. gazette dated 18th march, 1967 the state government constituted a tribunal (motor accidents claims tribunal) under sub-section (1) of section 110 of the motor vehicles act. opposite partyno. 2 filed another report on 22nd april, 1967 stating therein that such and such truck owned by petitioner no. 2 driven by petitioner no. 3 and insured with petitioner no. 1 had caused the aforesaid accident dated 11th september, 1966 resulting in the death of the informant's father, amar nath misra. thereafter on 8th july, 1967 a claim was filed by opposite parties nos. 1 to 3 claiming a sum of rs. 80,000/- as compensation but it was not on a prescribed form. subsequently on 17th april, 1969 a similar claim was filed on a prescribed form. the petitioners appeared before the tribunal and took an.....
Judgment:
ORDER

Lakshmi Prasad, J.

1. This is a petition under Article 226 of the Constitution. The facts of the case leading to this petition may briefly be summarised as below. Amar Nath Misra husband of opposite party Ho. 1 and father of opposite parties Nos. 2 and 3 met with an accident on 11th September, 1966 at about 8.30 P.M. on Unnao-Kanpur Road while he was on a scooter. One Kartar Singh was also seated on the scooter. He escaped with injuries but Amar Nath Misra died as a result of the injuries soon after. The accident occurred as a truck collided with his scooter. A report of the occurrence was lodged by one Ram Gopal same day at 9.05 p.m. at Gangaghat police station. It was stated in the report that the number of the truck could not be noted and it was not known who drove the truck and who was the owner thereof. By a Notification published in the U.P. Gazette dated 18th March, 1967 the State Government constituted a Tribunal (Motor Accidents Claims Tribunal) under Sub-section (1) of Section 110 of the Motor Vehicles Act. Opposite partyNo. 2 filed another report on 22nd April, 1967 stating therein that such and such truck owned by petitioner No. 2 driven by petitioner No. 3 and insured with petitioner No. 1 had caused the aforesaid accident dated 11th September, 1966 resulting in the death of the informant's father, Amar Nath Misra. Thereafter on 8th July, 1967 a claim was filed by opposite parties Nos. 1 to 3 claiming a sum of Rs. 80,000/- as compensation but it was not on a prescribed form. Subsequently on 17th April, 1969 a similar claim was filed on a prescribed form. The petitioners appeared before the Tribunal and took an objection that it had no jurisdiction to entertain a claim in respect of an accident which took place earlier than the date of its constitution. The tribunal opposite party No. 4 rejected that objection by an order dated 12th September, 1968 a certified copy of which is filed as annexure 4 to the petition. The present petition is directed against the aforesaid order annexure 4 and the prayer is that the same be quashed for the reason that the Tribunal has no jurisdiction to entertain a claim in respect of an accident which took place prior to its constitution. It is also prayed that mandamus may issue to opposite party No. 4 not to proceed with the claim of opposite parties Nos. 1 to 3 a true copy of which is annexure 1 to the petition.

2. The petition is opposed by opposite parties Nos. 1 to 4 on whose behalf a counter-affidavit sworn by opposite party No. 2 has been filed.

3. I have heard learned counsel for the petitioners and opposite parties Nos. 1 to 3 at some length. As already stated the only point that requires determination in the case is if or not the Motor Accidents Claims Tribunal is competent to entertain a claim in respect of an accident taking place prior to its constitution. There is no gain-saying the fact that unless expressed otherwise a procedural law is retrospective in the sense that it governs all the actions to be initiated since after its enactment regardless of the dates of the causes of action on which such actions are founded. In this connection I may refer to the following observations of the Supreme Court in the case of Anant Gopal Sheorey v. State of Bombay, : 1958CriLJ1429 contained in paragraph 4 of the report:--

'There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no otherright than to proceed according to the altered mode ..... In other words achange in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.'

So, it is unnecessary to refer to other decided cases of different High Courts cited at the Bar for the proposition that there is no vested right in the matter of choice of forum. The difficulty, however, arises because of a different period of limitation provided in Sub-section (3) of Section 110-A of the Motor Vehicles Act (hereinafter to be called the Act). According to that sub-section an application for compensation is to be made within sixty days of the occurrence of the accident. Under Section 110 power is conferred on the State Government to constitute one or more Motor Accidents Claims Tribunals. Reading Sections 110, 110-A and 110-F together it is obvious that there arises no occasion to resort to the remedy provided by these provisions of the Act till a Tribunal has been constituted as envisaged by Sub-section (1) of Section 110 and once that has been done, the jurisdiction of the civil Court to entertain a suit for damages preferred under Section 110-A is barred. It is to be borne in mind that Section 110-F bars jurisdiction of the civil Court 'to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal.' The words 'which may be adjudicated upon by the Claims Tribunal' are significant. These clearly indicate that the bar provided by Section 110-F is only in respect of such matters as can be entertained by the Claims Tribunal. That being so, it cannot readily be inferred that as soon as a Claims Tribunal has been constituted under Section 110(1) the jurisdiction of the Civil Court is ousted in respect of claims for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110, without the claim being one which can be entertained by the Claims Tribunal What I mean to emphasise here is that the provision contained in Section 110-F does not by itself furnish any ground to hold that the Claims Tribunal as soon as it is constituted gets jurisdiction to entertain claims for compensation arising out of accidents of the nature specified in Sub-section (1) of Section 110 regardless of the fact whether such accident occurred prior or subsequent to the constitution of the Tribunal. In other words that controversy has to be resolved on the basis of what is provided in Section 110-F, If on consideration of relevant matters it is found that the Claims Tribunal has jurisdiction to entertain only such claims as relate to accidents occurring subsequent to its constitutionthen it would necessarily follow that Section 110-F bars jurisdiction of Civil Court only in respect of such claims or as arise out of accidents subsequent to the constitution of the Tribunal and not in respect of such claims as arise out of accidents occurring prior to the constitution of the Tribunal. Thus what is to be seen is if not withstanding the period of limitation provided in Sub-section (3) of Section 110-A of the Act it is possible to give these provisions a retrospective effect. It is not in controversy that the period of limitation provided under the Limitation Act, 1963 for a suit to claim compensation arising out of such an accident is two years. The limitation provided in Sub-section (3) of Section 110-A of the Act is only sixty days. If these provisions contained in Sections 110 to 110-F of the Act are given retrospective effect on the score that they relate to matter procedural in nature then obviously the effect would be that claims in respect of accidents which took place more than sixty days prior to the constitution of the Tribunal would be barred even though suit in respect of them could be filed at any time within two years of the dates of the accidents. There is ample authority to hold that in such circumstances the new statute providing a new period of limitation unless it is so stated expressly in the statute itself cannot be given retrospective effect. In the case of District School Board of Belgaum v. Mohammad Mulla AIR 1945 Bom 377, Chagla. J., as he then was observed on page 380:--

'Considering these authorities it is clear that as a rule statutes of limitation being procedural laws must be given a retrospective effect in the sense that they must be applied to all suits filed after they came into force. This general rule has got to be read with one important qualification, and that is that if the statute of limitation, if given a retrospective effect destroys a cause of action which was vested in a party or makes it impossible for that party for the exercise of his vested right of action, then the Courts would not give retrospective effect to the statute of limitation. The reason for this qualification is that it would inflict such hardship and such injustice on parties that the Courts would hesitate to attribute to the Legislature an intention to do something which was obviously wrong.'

4. In the Full Bench case of Govt. of Rajasthan v. Sangram Singh the headnote runs as below:--

'It is not always true to say that the law of limitation is only a law of procedure and does not bar the remedy altogether so as to destroy the right. It is & well-settled proposition of law that thenew law of limitation would not revive a barred right. Similarly, it may be taken to be equally well settled that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of litigant to enforce his right in a Court of Law. In case the remedy to enforce a vested right is altogether barred on the date when the new law comes into force without providing any breathing time to a litigant, that remedy must continue to be governed by the old law of limitation. The Legislature has full power to make a law retrospective so as to destroy a right or a remedy altogether but this must be expressly laid down or this result must flow by necessary implication. A Court of law is not justified in drawing such inference merely from the fact that the new enactment deals mainly with procedure.'

Similar view has been expressed in the case of Sarkar Dutt Roy and Co. v. Shri Bank Ltd. : AIR1960Cal243 .

5. In the case of Bansidhar Lal v. Asstt. Custodian. Evacuee Property Sasaram. : AIR1960Pat306 , the headnote runs as below:--

'A statute of limitation may be retrospectively construed so as to shorten or lengthen the period of limitation of an unbarred cause of operation but the statute cannot be retrospectively construed in the absence of a clear indication to the contrary so as to deprive the plaintiff of a vested right of action or deprive a defendant of the right to treat a claim against him as already barred.'

6. Judged in the background of the above quoted authorities the provisions contained in Sections 110 to 110-F of the Act cannot possibly be held to be retrospective for the reason that there is nothing in any of these provisions to indicate a clear intention of the Legislature that there would operate retrospectively and if they are given retrospective effect, they are likely to deprive persons of vested right of action in cases of accidents occurring at any time within two years of the constitution of the Tribunal but more than sixty days prior to its constitution even though otherwise under the law of limitation as it obtained prior to the constitution of the Tribunal under Section 110(1) a suit for compensation arising out of such accidents could be brought at any time within two years of the accidents. It is true that the proviso to Sub-section (3) of Section 110-A empowers the Tribunal to entertain an application after the expiry of the period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. That provision by itself hardly provides any ground for making the various provisions of the Act under consideration retrospective. Even in the absence ofsuch a proviso, that power could be exercised by the Tribunal under Section 5 of the Limitation Act which has been made applicable by virtue of Section 29 of the Limitation Act to all such cases for which limitation is provided by enactment other than the Limitation Act. A specific provision in the statute for delay being condoned on sufficient cause being shown which even in the absence of such a provision in the statute would be possible by virtue of Section 5 read with Section 29 of the Limitation Act does not appear to be of any consequence for the determination of the question of principle namely as to in what circumstances procedural law such as a statute crowding a period of limitation may not in the absence of express words in that behalf be given retrospective effect As stated by Maxwell in the Interpretation of Statutes Tenth Edition on page 227, 'A new procedure would be presumably inapplicable where Its application would prejudice rights established under the old.....'It is obvious from the authorities discussed above that a statute providing a period of limitation is not to be given retrospective effect in the absence of a clear intention expressed in that behalf in the statute itself if as a result thereof It would have the effect of destroying the cause of action for which under the existing law of limitation obtaining till the date of the introduction of the new statute an action could be brought, In the relevant provisions of the Act, there is nothing to indicate that these are to be given retrospective effect. Had they related to the change of forum, there would have been no difficulty in giving them retrospective effect on the principle that nobody has a vested right in the choice of forum with the result that the person seeking remedy has to approach the forum provided for St under the law as it obtains on the date on which it is proposed to seek the remedy. The relevant provisions of the Act do not only provide for a different forum but also provide a different period of limitation. That being so, the question whether or not these provisions of the Act are to be given retrospective effect has got to be decided on the principle discussed above. Hence the inevitable conclusion is that these provisions cannot possibly be given retrospective effect. In other words, it means that the Tribunal has jurisdiction to entertain claims arising out of accidents which occur subsequent to its constitution and can have no jurisdiction to entertain claims arising out of accidents occurring prior to its constitution. In this view of mine I am supported by the decision of a Division Bench of Madhya Pradesh High Court in the case of Sushma Mehta v. Central Provinces Transport Services Ltd. : AIR1964MP133 .

7. I may now deal with a number of cases decided by different High Courts in which a different view has been taken. These are; Unique Motor and General Insurance Co. Ltd., Bombay v. Kartar Singh ; V. C. K. Bus Service (P) Ltd., Coimbatore v. H. B. Sethna : AIR1965Mad149 ; Natvarlal Bhikhalal Shah v. Thakarda Khodaji Kalaji 1967 ACJ 397 (Guj) and Joshi Ratansi Gopaji v. Gujarat State Road Transport Corporation, 1968 ACJ 338 (Guj).

8. In the above cited Madras case after discussing that no person has a vested right in any particular forum it is observed in paragraph 6 of the report:--

'The question then is, whether Sub-section (3) of Section 110-A will make any difference? In my opinion It does not I think the proper way of understanding Sub-section (3) of the section is that in the context neither the body of Sub-section (3) nor the proviso will have any application to claims arising anterior to the date of the notification under Section 110(1) and constitution of a Tribunal for any area. The sub-section, for its application, contemplates the existence of a Tribunal, Time cannot run for an application which, because, the Tribunal has not been constituted, cannot be filed. The only effect then would be that claims arising before the constitution of a Tribunal will not be governed by Sub-section (3) of Section 110-A. If that be the case, as I think it is, the very basis of the argument for the petitioners will disappear.'

With due deference to the Hon'ble Judge who decided that case I find it difficult to subscribe to the views expressed in the paragraph reproduced above. It is difficult to maintain that an application be-fore a Tribunal constituted under Section 110(1) can be made without conforming to the rule of limitation specifically provided by Sub-section (3) of Section 110-A. There is nothing in the language of Sections 110 to 110-F of the Act to Indicate that a distinction is to be made in the matter of limitation for applications for claims arising out of accidents occurring prior to the constitution of the Tribunal and for applications for claims arising out of accidents occurring subsequent to the constitution of the Tribunal. Once it is held that the remedy of the claimant is by moving an application before the Tribunal constituted under Section 110(1), it necessarily follows that the person claiming that remedy has to conform to the period of limitation provided by Sub-section (3) of Section 110-A. So the ground on which the learned Judge got over the difficulty in giving retrospective effect to the relevant provisions of the Act does not commend itself to me andhence I reset my inability to follow that decision.

9. In 1967 Gujarat case the point under consideration is discussed in paragraph 10 of the report which runs as below.-

'This principle was strongly relied upon by Mr. M. C. Shah in support of his contention that Sections 110 and 110-A must be held to be inapplicable to a claim for compensation in respect of an accident occurring more than sixty days prior to the constitution of Claims Tribunal for, In such a case it would be impossible to comply with the period of limitation laid down in Section 110 Sub-section (3) and the vested right of action of the applicant would be destroyed. Now there can be no doubt that this argument would have been unanswerable if the proviso to Section 110-A Sub-section (3) had not been enacted by the Legislature. But the Legislature has by enacting the proviso provided that the Claims Tribunal may entertain the application after the expiry of the period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. The applicant in an application for compensation in respect of an accident occurring more than sixty days before the constitution of Tribunal can, therefore, contend before the Claims Tribunal that the application should be entertained notwithstanding the expiration of the period of sixty days on the ground that the applicant was prevented by the non-constitution of the Tribunal from making the application in time. The vested right of action of the applicant can thus be enforced by an application before the Claims Tribunal and reading the sections as applicable to a claim for compensation in respect of such accident would not have the effect of destroying the vested right of action. It is no doubt true that the applicant cannot enforce such vested right of action unless the Claims Tribunal is satisfied that the applicant was prevented by sufficient cause from making the application in time, but that condition would not make such vested right of action any the less enforceable. Mr. M. C. Shah, however, urged that the enforceability of the vested right of action would in such cases be dependent on the discretion of the Claims Tribunal and that surely could not have been the intention of the Legislature. But the short answer to this argument is that the discretion of the Claims Tribunal is not an arbitrary or capricious discretion but is a discretion guided and conditioned by judicial principles. It is not left to the whim and fancy of the Claims Tribunal to decide whether to entertain the application or not despite the expiration of the period of sixty days. The Claims Tribunal is bound to entertain the applicationwhen it is made out by the applicant that he was prevented by sufficient cause from making the application in time and non-constitution of the Claims Tribunal being a sufficient cause preventing the applicant from making the application, the applicant can certainly claim as a matter of right that he was prevented by sufficient cause from making the application in time and that the application should, therefore, be entertained. The construction which I am inclined to place on Sections 110 and 110-A therefore does not offend against the principle which denies retrospective operation to a statute of limitation affecting vested rights of action. The Legislature having realised the hardships or injustice which might result from retrospective operation of the period of limitation in Section 110-A Sub-section (3) has provided against it by enacting the proviso to that sub-section.'

It shall thus be seen that the learned Judge was, in giving retrospective effect, very much influenced by the proviso to Sub-section (3) of Section 110-A which provides for the condonation of delay on sufficient cause being shown, I have already indicated above that the provision contained in the proviso referred to above appears to be of little consequence for determining the question of principle. Such condonation can always be sought by virtue of Section 5 read with Section 29 of the Limitation Act. As such, a specific provision regarding condonation in the statute itself would hardly make any difference. If on principle a retrospective operation is not to be given to a statute of limitation affecting vested right of action then obviously It cannot be given merely because it may be possible in some cases to have the delay condoned on sufficient cause being shown, it being immaterial whether such condonation is possible under a specific provision in that behalf in the statute itself or under Section 5 of the Limitation Act read with Section 29 thereof. In my view the principle of denying retrospective operation to a statute of limitation affecting vested right of action applies with full force to the relevant provisions of the Act notwithstanding a specific provision in the proviso to Sub-section (3) of Section 110-A for the condonation of the delay on sufficient cause being shown.

10. 1968 Gujarat case simply follows the earlier decision of 1967. So there is nothing to be noticed about it.

11. In Punjab case for meeting the point that a statute of limitation prejudicially affecting the vested rights of action, is in the absence of express words in that behalf not to be given retrospective effect, reliance is placed on the following observations of Sulaiman Acting Chief Justice (as he then was) in the case of HazariTewari v. Mt Maktula Chaubain : AIR1932All30 .

'This is however not a point which arises directly in this case, but it may be pointed out that possibly it cannot be said that there is a vested right in a litigant to wait for a particular period of limitation before instituting his suit.'

Those observations of the Allahabad case are reproduced on page 105 of the report of the Punjab case. Again while meeting the argument against retrospective effect being given to the relevant provisions of the Act on the score that such a course would prejudicially affect vested rights of action it is observed on page 106 of the Punjab case:--

'These contentions though specious do not have much substance. I am inclined to agree, with respect, with Sulaiman, A.C.J., that a litigant does not have a vested right to wait for a particular period of limitation before instituting his suit.'

In my view the above quoted observations of Sulaiman, Acting Chief Justice do not go to the whole way to cover the point. Without attempting to detract from the weight of the above observations of Sulaiman, Acting Chief Justice, I may point out that these are not wide enough to cover a case where as a result of an altered period of limitation provided by the new statute an action, though well within time under the law of limitation obtaining prior to the enforcement of the new statute, gets time barred under the provisions of the new statute. Above cited observations of the Acting Chief Justice would only cover such a case for which an action is possible even under the new statute with the only difference that under the new statute the period within which the action may be brought is shortened' as compared to the period within which it could have been brought had the old statute continued to be in force. For the sake of elucidation I may refer to the relevant observations of Sulaiman Acting Chief Justice which occur on page 31 of the Allahabad report These are:--

'Great point has been made of the fear that the period of limitation would be cut down if the new Act were made applicable. No doubt Section 220 makes the period of limitation prescribed for suits by tenants applicable to suits by Thekadars, and in that way a period of six months may be applicable to a suit under Section 212 also. This is, however, not a point which arises directly in this case, but it may be pointed out that possibly it cannot be said that there is a vested right in a litigant to wait for a particular period of limitation before Instituting his suit. It may also be possible for the plaintiff to contend that as he has been prevented from obtaining possession from year to year, there hasbeen a continuing cause of action in his favour giving him a recurring right, Again if there were really a vested right in the period of limitation, it may not follow that right has necessarily been taken away. It is also possible that he may succeed in satisfying the revenue Court that he is entitled to the exclusion of the period taken up in the civil suit under Section 14, Limitation Act. These however are matters with which we are not concerned at this stage.'

To begin with, it may be pointed out that the argument in the Allahabad case which has been met in ways more than one in the above-cited passage was 'that the period of limitation would be cut down' and not that the very action would stand, destroyed. Even so, the argument was met not only by the observation 'it cannot be said that there is a vested right in a litigant to wait for a particular period of limitation before instituting his suit' but in ways more than one indicated by what follows aforesaid observation in the passage reproduced above. In my view the decision in the Allahabad case does not in any way support the proposition that a new statute of limitation is invariably to be given retrospective effect regardless of the fact whether or not it prejudicially affects vested rights of action. In the circumstances I regret my inability to follow the decision in the Punjab case.

12. In view of the foregoing discussion, my conclusion is that a Tribunal constituted under Section 110(1) of the Act has no jurisdiction to entertain a claim arising out of an accident which occurred prior to its constitution. In that view of the matter the present petition must succeed.

13. In the end the petition is allowed and the impugned order annexure 4 is quashed with the direction that opposite Party No. 4 shall not proceed with the claim of opposite parties Nos. 1 to 3. In the circumstances of the case I make no order as to costs.


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