R. N. Misra, J.
1. This is an appeal under Section 110-D (1) of the Motor Vehicles Act of 1939 (hereinafter referred to as the Act) against the award of the Motor Vehicles Claims Tribunal, Balasore, dismissing the claim.
2. The appellant happens to be the mother of one Subodh Mohapatra who was travelling on 15-2-69 in a jeep bearing registration No. O. R. C. 7586 from Balasore to Soro. The claimant alleged that the vehicle was being driven rashly and at a considerable speed and while it was about 3 miles away from Soro at about 4 P.M. one of the rear tyres burst. The driver failed to control the vehicle and it ultimately went out of the road and capsized leading to the instantaneous death of Subodh.
The jeep belongs to the respondent No. 1. An Oriya film 'Kie Kahara' was being exhibited at the Balasore Talkies during the material period. The Balasore Talkies arranged this jeep for the purpose of doing publicity work. Along with the driver and the cleaner the vehicle besides the publicity staff the deceased proceeded towards Soro on the National Highway. It is claimed that the deceased was working with the Panchasakha Pictures, the producers of the film, on a monthly salary of Rs. 180/- and he was travelling in the jeep at the material point of time for performance of his duty, namely, making publicity for the film On these averments the appellant laid claim for compensation of Rs. 32,400/- and filed the application on 6-2-70.
3. In the claim petition five persons were impleaded as the opposite oar-ties. They are (1) the Balasore Talkies, (2) the owner of the vehicle, (3) the driver thereof, (4) the Panchasakha Pictures, and (5) the insurer of the vehicle M/s. Hindusthan General Insurance Society Ltd. Excepting the driver the other opposite parties entered appearance and contested the claim.
Cause of action in this case arose on 15-2-69. As the law stood then the application for compensation was to be filed within 60 days of the occurrence of the accident as per the provisions under Section 110-A (3) of the Act. The application having been filed on 6-2-70 was barred by limitation. The appellant applied for condonation of the delay. On 13-2-70, the Tribunal examined her on oath and on 17-3-70, on a consideration of the affidavit, the medical certificate and the initial statement of the appellant found sufficient cause for the delay and in exercise of the powers vested under the proviso to Section 110-A (3) of the Act condoned the limitation and entertained the claim. After notice was issued, the respondents pleaded that the claim was barred by limitation. Accordingly along with several issues the question of limitation was raised as issue No. 2. On a reconsideration of the matter the Tribunal (not the one that condoned the limitation) came to find that sufficient cause for the delay had not been established and, therefore, the claim was to be thrown away on the ground of limitation. It further found that negligence had not been established by the claimant; yet if the appellant was entitled to compensation a sum of Rs. 10,000/- would have been adequate for the purpose. It is against this award that the appeal has been filed.
4. Four points arise for determination in this appeal;
(1) Has sufficient cause been shown by the claimant for exercise of discretion under the proviso to Section 110-A (3) of the Act?
(2) Whether once discretion has been exercised and limitation has been condoned before issue of notice to the respondents, they (respondents) are entitled to re-open the question of limitation after entering appearance in the case?
(3) Is the claimant entitled to any compensation?
(4) In case the claimant is entitled to compensation, which of the respondents is liable for it?
5. Point No. 1. There is no dispute that the claim application was filed beyond the time provided under Section 110-A (3) of the Act. Until December 1969 the period prescribed for presentation of a claim application was 60 days from the date when the accident took place. Section 110-A (3) of the Act before amendment provided-
'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 60 days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.'
The discretion given to the Claims Tribunal under the proviso is not an arbitrary or capricious discretion. It 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 prescribed period. But the Tribunal is bound to entertain the application when it is made out by the applicant that he was prevented by sufficient cause in making the application in time. It is well settled that 'sufficient cause' means some cause beyond the control of the party and for successfully invoking the aid of the court, the claimant must have acted with due care and attention. There is abundant authority that the strictness with which an application under Section 5 of the Limitation Act is dealt with cannot be the standard by which exercise of discretion under the proviso to Section 110-A (3) of the Act has to be regulated. The purpose of the statute, the circumstances in which ordinarily a claim of this type is laid and similar factors have been taken into account by courts dealing with claims and they seem to be consensus in the judicial view that the proviso should be liberally construed so that the legislative intention may be given effect to.
6. In the application which was labelled as one under Section 5 of the Limitation Act and was duly verified by the appellant she stated.
'That the applicant is not in good terms with her husband since about two years and resides at her father's house. That she was looked after even during her illness by her elder son Sri Subodh Mohapatra who is the deceased in the accident.
That she was suffering from 'sciatiea' since long and was almost bedridden.
That the disease became more complicated and aggravated at the shocking news of her son's sudden death.
That she became unable to file the claim petition under Section 110-A of M. V. Act in time.
That the delay is not wilful.'
The claimant-appellant in her initial deposition had stated, that she was suffering from fever and sciatica deseases and was unable to move about and she was staying at her father's house for about two years. To meet the issue of limitation the petitioner examined herself. It is true that in her evidence in chief nothing was stated about the illness, but in cross-examination it was brought out that she was ill for about four months prior to the date of occurrence and continued to suffer for about 2 years thereafter. She was suffering from gout and sciatica and was under the treatment of one Lambodar Kabiraj. P.W. 3 is a son of the claimant and the brother of the deceased. He also stated that at the time of occurrence the claimant was laid up with gout and sciatica and was living in the house of her father. There is no challenge to this statement of P.W. 3 in his cross-examination. None of the witnesses examined for the respondents has denied the allegation of illness of the claimant.
It is true that the Kabiraj under whose treatment the claimant was has not been examined to support the plea of illness. Again in order No. 1 there is a reference to a medical certificate having been filed by the claimant and the learned Tribunal relied upon such a certificate when on 17-3-70 in the absence of the respondents it had condoned the delay in filing of the claim. The medical certificate has not been exhibited in the case and we have not been able to trace it from the record. The Tribunal has rightly pointed out that there is discrepancy in the evidence of the claimant regarding the period of illness, and if she was really continuing ill when the claim was ultimately filed, it could have been filed within time notwithstanding her illness. That statement of P.W. 1 upon which the Tribunal has commented seems to have been a confused one. P.W. 3 has, however, categorically supported the plea of illness. It is true P.W. 3 would be interested in the claim being entertained by excusing the delay. But it cannot be lost sight of that he would be a competent witness. In view of the fact that there has been no challenge to his evidence and there is no evidence to counteract the evidence of the claimant and her witnesses and keeping in view the benevolent nature of the statutory provision we think the Tribunal was not right in taking a different view from what its predecessor had taken in the matter of condonation of delay.
A Bench of the Calcutta High Court in 1971 Acc CJ 167 = (AIR 1971 Cal 229) (Pijush Kanti Ghosh v. Maya Rani Chat-terjee) has held,
'Provision in Sub-section (3) of Section 110-A is not a provision of limitation creating or extinguishing rights of parties. It is only a limit to the powers of Tribunal to entertain application for compensation. As such the principles and decisions that govern matters under Section 5, Limitation Act do not directly apply, though the Tribunal in exercise of discretion given by the proviso may and should keep in mind those principles, particularly in considering the question whether the applicant was prevented by sufficient cause from making the application in time. It is necessary to remember that occurrence of the accident is not exactly the cause of action from which period of limitation will begin to run, because death may result from the accident more than 60 days after the day of accident have elapsed and where death as so resulted by the provisions in Section 110-A, Sub-section (2), Clause (b) the legal representatives of the deceased have been given right to make application for compensation arising out of the accident. If 60 days from the date of occurrence of the accident is regarded as period of limitation, commencing to run from that day of occurrence of the accident, then right given to legal representatives of deceased by that Clause (b) would be rendered nugatory and chimerical, depending only on the discretion of the Tribunal under Proviso to Sub-section (3). Parliament that enacted Section 110-A in its present form could not have contemplated to create such a chimerical right.'
The Delhi High Court in 1970 Acc CJ 175 (Delhi) (Kulbir Chand v. Bahadur Chand) has taken the view that the period prescribed under Section 110-A (3) of the Act is one relating to the domain of procedure and not one connected with vest-ed rights of parties.
The Tribunal in this case has been guided by the strict principles of Section 5 of the Limitation Act and has lost sight of the intention of the statutory provision contained in the proviso to Section 110-A (3) of the Act. It also lost sight of the fact that the appellant had been confined to bed for a long period and came to present the petition on 6-2-70. The petition in this case was filed through advocate. The claimant was not present in court. On 9-2-70, the case was adjourned because the claimant was not present. It was only on 13-2-70 that her statement was taken. By the tune of presentation of the petition her condition of health seems to have improved and that is how on 13-2-70 she was able to come to the court
Taking all these aspects into consideration we are of the view that the claimant had been able to establish sufficient cause for the delay in presenting the claim. The finding of the Tribunal on this count is, therefore, reversed.
7. Point No. 2. Mr. Palit for the appellant contended that once the delayhad been condoned and the claim had been entertained it was not open to the respondents to ask for re-opening of the matter relating to delay, and it was not open to the Tribunal to review the decision on the question of delay at the instance of the respondents. According to Mr. Palit it was not necessary for the claimant to file an application to invoke the exercise of discretion vested under the proviso to Section 110-A (3) of the Act. The Tribunal could suo motu exercise such power. In support of such contention Mr. Palit relies upon a decision of the Patna High Court in 1968 Acc CJ 165 = (AIR 1968 Pat 367), (Ramashray Singh v. Tarabati Kuer). It is not for us to examine the correctness of the view taken in the Patna High Court in this case because the Tribunal did not exercise power suo motu. There was an application for condoning the delay and the Tribunal after hearing the claimant exercised its jurisdiction.
Mr. Palit does not dispute the fact that whether sufficient cause had been made out or not is a matter in which the respondents are interested. The plea of delay and that sufficient cause has not been made out for invoking the exercise of the discretionary power under the proviso could be raised by the respondents and if such a plea is ultimately sustained the claim is not entertainable. In that view of the matter the respondents are entitled to challenge any ex parte conclusion of the Tribunal in the matter of delay in making of the claim. The order dated 17-3-1970 made by the Tribunal in this case before issue of notice to the respondents was such an order and the respondents were, therefore, entitled to re-agitate the question of delay. Our view is supported by the plain rule of natural justice. A Division Bench of the Madhya Pradesh High Court in Bhaskar Bhikaji Thakur v. Chhotelal Rai also adopted the same view, Dixit, C. J. delivering the judgment of the Bench stated:
'Under the provisions of the Motor Vehicles Act referred to above, and the rules made thereunder, it is quite clear that it is obligatory on the Claims Tribunal to decide the question of limitation prima facie before notice is issued to the other side. The decision of the Privy Council in Sunderbai v. Collector of Belgaum, (AIR 1918 PC 135) relied on by the respondent No. 4, which deals with the procedure to be followed under Section 5 of the Limitation Act can be of no assistance. In Mithoolal v. Jamna Prasad, ILR 9 Luck 193 = (AIR 1933 Oudh 523), Raza, J. held,
'What constitutes 'sufficient cause' cannot be laid down by hard and fast rules. It must be determined by a reference to all the circumstances of each particular case. A court may give a liberal construction to the words 'sufficient cause' but the interpretation must be in accordance with judicial principles and with due regard to the respondent's side of the question.'
It is clear from these observations that the respondent's side of the matter is required to be considered when the delay in filing the application is condoned. This postulates the right in the respondent to urge his own side when the appropriate opportunity is afforded to him. We are, therefore, of the opinion that at the initial stage when the Claims Tribunal entertains the application it has tentatively to give its decision on the question of sufficient cause being shown and at that stage the opposite party is not entitled to any say in the matter. It must, however, be made clear that the tentative decision of the Claims Tribunal is not final and is open to challenge by the opposite party when it is given notice.'
8. Point No. 3. The next question for consideration is what would be the quantum of compensation to which the claimant would be entitled. As has been indicated by a Division Bench of this Court in 1972 Acc CJ 92 = (AIR 1973 Orissa 33) (The Oriental Fire & General Insurance Co. Ltd. v. Kamal Kamini Das),
'Despite a self-contained code of procedure for adjudication of claims being provided, the sections do not deal with the substantive law regarding determination of liability. They only furnish a new mode of enforcing liability. For determination of liability one has still to look to the substantive law in the law of torts and the Fatal Accidents Act, 1855 or at any rate to the principles thereof. Section 110-B merely says that the Tribunal may make an award determining the amount of compensation which appears to it to be just. The objective factors which would constitute the basis of compensation appearing as just have not been indicated in the section. The expression 'which appears to it to be just', however, vests a wide discretion in the Tribunal in the matter of determination of compensation. Despite the wide amplitude of such power, the determination cannot be arbitrary and must be based on certain data establishing reasonable nexus between the loss incurred and the compensation to be awarded.'
The Tribunal has first to find out the income of the deceased while he was alive and then to find out as to what portion out of it the deceased used to contribute or spend for the claimant. It is that loss which has to be capsized by way of compensation to the claimant. In this case there is some evidence that the deceased was earning about Rs. 180/- a month. The evidence seems to be almost one-sided. We shall, therefore, accept the claimant's case that Subodh was having a monthly income of Rs. 180/-. The claimant has asserted that she was being looked after by Subodh though the claimant was residing at her father's place having fallen out with her husband. There is some evidence that Subodh was contributing towards the maintenance of the claimant, but the quantum is not indicated. Keeping in view the income of Subodh, his own requirements in life and the fact that the mother was living at her father's place, we are not in a position to hold that Subodh may be contributing more than Rs. 25/- a month for the claimant. Subodh died at the age of 28. The claimant has given her age as 50 in her initial deposition though later on she changed it to 45 at the trial. It would be reasonable for us to assume that the claimant would live until the age of 60. If Subodh had lived the claimant would, therefore, have received financial support to the extent of Rs. 25/- per month for 10 more years. This loss to the claimant can be capitalised to a sum of Rs. 3,000/- being Rs. 25X 12X10. We think it appropriate to reduce this amount to a net sum of Rs. 2,500/-taking all other eventualities into consideration. It must be clarified here that the claimant has not claimed compensation in this case for the benefit of her husband and/or her son (P.W. 3). Nor has P.W. 3 claimed that he was receiving any maintenance or financial assistance from the deceased.
The Tribunal in coming to the conclusion that the claimant would have been entitled to compensation of Rs. 10,000/-took the entire income of Subodh into consideration. That was certainly an erroneous basis.
9. Law is settled that until negligence is established the claimant would not be entitled to compensation. The Tribunal has come to the conclusion that there was no negligence. We are not in a position to uphold the conclusion of the Tribunal on this point. There is enough evidence to support the finding of the Tribunal that the accident was the outcome of the burst of a rear tube and tyre of the vehicle. We endorse that finding of the Tribunal. Unless the jeep was moving at great speed the burst of a rear tyre could not bring about the accident. The Motor Vehicles Inspector--witness No. 3 for the opposite party No. 1--has clearly admitted that if the jeep was in normal speed --that is 50 kilometres per hour--the driver could have controlled the vehicle without much difficulty provided the other conditions of the vehicle were normal. He has also said that in case of bursting of the rear tyre the dragging of the vehicle would be very little. Therefore, if the jeep was moving with a reasonable speed there could not have been the accident. Ext. A-l is the report of the Motor Vehicles Inspector. Therein the cause of the accident is also said to be the bursting of the rear tyre and tube. The story of the breaking of the tie-rod joint seems to be a subsequent development. In view of this state of the evidence we hold that the driver of the jeep was driving the vehicle rashly and at great speed. When the rear tyre and tube burst he could not exercise effective control and ultimately the vehicle met the accident. The accident is the outcome of rash and negligent driving.
10. Point No. 4. In view of what we have found above, the proper conclusion to reach is that the claimant is entitled to compensation of Rs. 2,500/- under the provisions of the Act. It has now to be determined as to from whom she would be entitled to recover this amount. The vehicle in question was insured with M/s. Hindusthan General Insurance Society Ltd., but it was an 'act only' policy. Therefore, the liability of the insurer is confined to the liability raised against the owner to third parties. The deceased was an occupant of the vehicle and in respect of him the insurer would have no liability either under the statute or in terms of the policy. Under the contract of policy the liability for the occupant had not been undertaken by the insurer. In fact clause No. 3 of the General Exceptions of the policy contains an agreement to the contrary. Therefore, no one excepting the owner, that is, Sk. Lokman, the respondent No. 1, would be liable to pay the compensation in question.
11. We accordingly allow the appeal in part and direct that the appellant shall be entitled to compensation of a net sum of Rs. 2,500/- from the respondent No. 1 which she shall, unless she is paid the same within two months from today, be entitled to recover in accordance with law. We direct the parties to bear their own costs.
B.K. Ray, J.
12. I agree.