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Janaki Pillai Ponnamma Pillai Vs. K. Azhakiya Nambi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Limitation
CourtKerala High Court
Decided On
Case NumberM.F.A. No. 112 of 1979
Judge
Reported inAIR1981Ker196
ActsMotor Vehicles Act, 1939 - Sections 110A(3), 110B and 110D
AppellantJanaki Pillai Ponnamma Pillai
RespondentK. Azhakiya Nambi and ors.
Appellant Advocate Pirappancode V. sreedharan Nair,; V.N. Achutha Kurup and;
Respondent Advocate K.S. Aravindapooran and; G. Sivaraj and; S.P. Parameswar
Cases ReferredRambhau Laxman Pingale v. Poona Municipal Corporation
Excerpt:
.....held, tribunal directed to consider application and dispose on merits. - - provided that the claims tribunal may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. provided that the high court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. under the proviso thereto the applicant is entitled to satisfy the claims tribunal that he was prevented by sufficient cause from applying in time and the claims tribunal, on being so satisfied, has to entertain the claim. where the claims tribunal finds that the application is..........short the act). since it was time-barred he also filed an application to condone the delay. the claims tribunal refused to excuse the delay and consequently dismissed the main application. this appeal is from the decision on the main application.2. respondents have raised a preliminary objection that no appeal lies from the abovesaid decision, since, according to them, that decision does not amount to an award as mentioned in sections 110-b and 110-d of the act. the contention is twofold: (i) the claims tribunal, having dismissed the condonation application, has not entertained the main application and (ii) the claims tribunal has not made an award determining the amount of compensation.3. section 110-a (3) reads:--'110-a. application for compensation--xx xx xx(3) no application for.....
Judgment:

George Vadakkel, J.

1. The appellant filed an application under Section 110-A of the Motor Vehicles Act, 1939 (for short the Act). Since it was time-barred he also filed an application to condone the delay. The Claims Tribunal refused to excuse the delay and consequently dismissed the main application. This appeal is from the decision on the main application.

2. Respondents have raised a preliminary objection that no appeal lies from the abovesaid decision, since, according to them, that decision does not amount to an award as mentioned in Sections 110-B and 110-D of the Act. The contention is twofold: (i) the Claims Tribunal, having dismissed the condonation application, has not entertained the main application and (ii) the Claims Tribunal has not made an award determining the amount of compensation.

3. Section 110-A (3) reads:--

'110-A. Application for compensation--

XX XX XX

(3) No application for compensation under this section shall be entertained unless it is made within six months of the occurrence of the accident:

Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.' Section 110-B is as follows:--

'110-B. Award of the Claims Tribunal--On receipt of an application for compel sation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.' Section 110-D provides:--

'110-D. Appeals-- (1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of the Claims Tribunal, if the amount in dispute in the appeal is less than two thousand rupees.'

4. While Section 100-A (3) prohibits entertainment of a belated application, Section 110-B require the Claims Tribunal to hold an inquiry 'on receipt of an application'. As pointed out by the Supreme Court in L.E. Work v. Asst, Commr., Sales Tax (AIR 1968 SC 488--para 7 at p, 491) in somewhat similar context 'it the legislature intended that the word 'file' or 'receive' was to be used in Section 110-A (3) there was no difficulty in using those words. What does the word 'entertained' in Section 110-A (3) then mean? is the first question that falls for consideration.

5. Following L.E. Works v. Asst. Commr., Sales Tax (AIR 1968 SC 488) that Court in Hindustan Commrl. Bank v. Punnu Sahu (AIR 1970 SC 1384) said as follows (at p. 1385):--

'It is the contention of the appellant that the expression 'entertain' found in the proviso refers to the initiation of the proceedings and not to the stage when the court takes up the application for consideration. This contention was rejected by the High Court relying on the decision of that court in Kundan Lal v, Jagan Nath Sharma, AIR 1962 All 547, The same view had been taken by the said High Court in Dhoom Chand Jain v. Chamanlal Gupta, AIR 1962 All 543 and Haji Rahim Bux and Sons v. Firm Samiullah and Sons, AIR 1963 All 320 and again in Mahavir Singh v. Gauri Shankar, AIR 1964 All 289. These decisions have interpreted the expression 'entertain' as meaning 'adjudicate upon' or 'proceed to consider on merits'. This view of the High Court has been accepted as correct by this Court in Lakshmiratan Engineering Works Ltd. v. Asst Commr., Sales Tax, Kanpur, AIR 1968 SC 488.'

6. The injunction in Section 110-A (3) is therefore against 'adjudicating upon' the claim for compensation or 'proceeding to consider on merits' that claim. In L. E. Works v. Asst. Commr., Sales Tax (AIR 1968 SC 488), the Supreme Court answered the following question (at p. 491):--

'the question, therefore, is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso? Is it 'entertained' when it is filed or is it 'entertained' when it is admitted and the date is fixed for hearing or is it finally 'entertained' when it is heard and disposed of?' as follows (at p. 492):--

'In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would therefore appear that the direction to the court in the proviso to S, 9 is that the court shall not proceed to admit to consideration on appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time.'

7. The prohibition in Section 110-A (3) is not absolute. Under the proviso thereto the applicant is entitled to satisfy the Claims Tribunal that he was prevented by sufficient cause from applying in time and the Claims Tribunal, on being so satisfied, has to entertain the claim. Therefore, 'the inquiry into the claim' which the Claims Tribunal has to hold 'on receipt of an application' as envisaged by Section 110-B would be one concerning also the question as to whether the application is belated or not, and if belated, whether the applicant was prevented by sufficient cause from applying in time. Where the Claims Tribunal finds that the application is belated but is satisfied that the applicant was prevented by sufficient cause from making it in time, the inquiry proceeds as regards the merits of the claim resulting in a decision granting (fully or partially) the compensation claimed or refusing to grant compensation, depending upon the merits of the case. Where the Claims Tribunal finds that the application is time-barred and that there was no sufficient cause for not applying in time, the inquiry stops at that stage resulting in the dismissal of the application. In other words, in such a case the Claims Tribunal refuses to proceed to consider the claim on merits or to adjudicate upon the claim on merits. Without considering the merits of the claims, the Claims Tribunal makes a decision that the applicant is not entitled to any compensation. In view of what is said above it cannot be said that the application found to be belated and dismissed on that ground has been thrown out at the threshold itself, as contended for on behalf of the respondents.

8. The ordinary meaning of the word 'award' is: a decision, Chambers' Twentieth Century Dictionary assigns to that word the following meaning: 'v. t. to adjudge: to determine: to grant--n. judgment: final decision, esp. of arbitrators; that which is awarded: a price'. The Concise Oxford Dictionary gives the meaning of that word as a 'judicial decision; payment, penalty, assigned by this'. And, attribution of such a connotation to the word 'award' is not only not unknown in legal parlance but is familiar, For example in the Arbitration law the arbitrator's decision is invariably referred to as an 'award'. Even where the arbitrator completely negatives a claim advanced by one of the parties to the arbitration and refuses to grant any relief to him, his decision is an 'award' capable of being filed in court and compelled to be filed in court.

9. At the close of 'the inquiry into the claim' the Claims Tribunal is required to 'make an award determining the amount of compensation' and apportioning the liability therefor amongst the insurer, owner and driver. It is contended that a decision of the Claims Tribunal dismissing a claim in toto is not an award since there is no determination of the amount of compensation. The submission is that unless the Claims Tribunal finds that the applicant is entitled to some compensation, howsoever small the amount of compensation so found may be, the decision is not an award. This would mean that the applicant-claimant will have no right of appeal even in cases where the Claims Tribunal wrongly and mistakenly refuses to grant any compensation, not on the basis of any preliminary finding that the claim is time-barred, but after a full inquiry into the merits of the case, as for example, where the claim is dismissed wrongly holding that the applicant has no locus standi or that he has not proved the accident. If such be the correct position of law, it would result in restricting the claimant's right' of appeal only to matters relating to quantification of compensation. In other words, the claimant will have no right of appeal against a decision adverse to him on the question of his entitlement to compensation and he can, in appeal complain only about adequacy of compensation granted. However when an appeal is preferred by the respondents in the claim proceedings, they can question not only the quantum of compensation granted but also the claimant's entitlement thereto. This is to say, that the decision of the Claims Tribunal on the question of the claimant's entitlement to compensation, which will be the principal and main question in the case, is final so far as the claimant is concerned but not so as regards the respondents in the claim proceedings. We do not think that, the legislative intent is such.

10. After holding the inquiry directed to be held, the Claims Tribunal decides the claim. The Claims Tribunal is by Section 110-B enabled to quantify the amount of compensation and make an enforceable award (decision) where it finds that the applicant is entitled to compensation. In case where the Claims Tribunal finds that the applicant is not entitled to compensation, it makes an award (decision). holding so. That its decision in either of the cases mentioned above is an award is clear from Section 110-E of the Act which provides for recovery of money in cases 'where any money is due from any person under an award' suggesting thereby' that under all awards money may not' be due to the applicant.

11. In the backdrop of the discussion in the preceding paragraphs we hold that a decision of the Claims Tribunal dismissing an application filed under Section 110-A of the Act at any stage of the; inquiry held under Section 110-B of the Act and for whatsoever reasons, in an award under Section 110-B thereof and that consequently, Section 110-D of the Act is attracted, to such a decision. We overrule the preliminary objection.

12. Govindarajulu v. Govindaraja (AIR 1966 Mad 332), Gopalaswami v. Naval-garia (AIR 1967 Mad 403) and Section T. Filial v. E. M. Mani (AIR 1969 Mad 316) support the above view. However, it is necessary to point out that Gopalaswami v. Navalgaria (AIR 1967 Mad 403) and Section T. Pillai v. E. M. Mani (AIR 1969 Mad 316) appear to have gone to the extent of holding that the dismissal of a condonation application itself is appealable under Section 110-D of the Act. We refrain from expressing any opinion on that point. We may here refer to the decision of the Andhra Pradesh High Court in S. Johny v. Ademma (1979 Acc CJ 360): (AIR 1978 Andh Pra 447} which holds that while the dismissal of the main application as time-barred would be an award, the order dismissing the application to excuse the delay in filing it would not be an award. The decision in Komal Charan v. State (AIR 1971 All 503) and K. L. Trikha v.Jupiter General Insurance Co. (1977 Ace CJ 339) : (AIR 1977 J &K; 90) are in point which hold that the decision dismissing the main application as time-barred after refusing to condone the delay in filing the same is an appealable award. Komal Charan v. State (AIR 1971 All 503) has disapproved the observations to the contra made by a learned single Judge in Satish Chandra v. State of U. P. (1971 All LJ 62). In Om Prakash v. N. F. & G. Insurance Co. (AIR 1962 Madh Pra 19), Pritpal Singh v. New Suraj Transport Co. (1974 Ace CJ 277): (AIR 1974 Punj 39) and Hazi All Newas v. Radhesham Khatowal (1978 Ace CJ 95): (AIR 1978 Gauhati 9) cited on behalf of the appellant the question raised herein did not come up for consideration and we do not think that those decisions are in any way germane to the point under examination herein.

13. Zarin v. Santubhai (AIR 1969 Guj 233) was a case where the Claims Tribunal returned the application for compensation holding that it has no jurisdiction as the accident took place prior to the constitution of Claims Tribunal wherefor as stated therein the order was 'not one of dismissal or disposal of the claim or determination of the claim in any other manner'. The Gujarat High Court held that it is not an appealable award. This decision relied on on behalf of the respondent is of no assistance to them. Understanding the decision of the Gujarat High Court as one taking a view contrary to what we have taken in the case on hand, and without any discussion, the Bombay High Court in Rambhau Laxman Pingale v. Poona Municipal Corporation (1978 Ace CJ 463) held that an order rejecting an application for compensation as time-barred is not an award. With respect, we cannot agree.

14. The Claims Tribunal, Trivandrum dismissed O. P. (M. V.) No. 14 of 1978 by the following judgment:--

'I. A. 615/78 for condoning delay in filing claim petition has been dismissed. Hence this petition is dismissed as barred by time. No costs.' The order on I. A. 615/78 is as follows:--

'This is a petition to condone delay in filing claim petition. Accident was on 7-3-1976. Rules came into force in July, 1976. Claim Petition has been filed on 1-2-1978, after a delay of about 1 year and 5 months. In her affidavit she had alleged that she could not file the petition in time. She was under treatment between 14-8-1976 to 31-1-1978. She does not allege that during this period, she was unable to move about or meet her counsel. The allegations in the affidavit are denied by respondents. petitioner has not even produced a medical certificate. Hence the allegations cannot be said to be established. I, therefore, hold that petitioner has failed to establish reasonable grounds for condoning the delay in filing Claim Petition. Petition is accordingly dismissed. No costs.'

15-16. It may at once be pointed out that the application for compensation filed on 1-2-1978 under Section 110-A of the Motor Vehicles Act, 1939 was accompanied by I. A. 615 of 1975 and a Medical Certificate dated 1-2-1978 issued by the Assistant Surgeon of the Government Hospital, Nemom and therefore, the statement in the order on I. A. 615 of 1978 that 'the petitioner has not even produced a medical certificate' is factually wrong. We are not satisfied that the Claims Tribunal has applied its mind in disposing of I. A. 615 of 1978.

17. We set aside the order on I. A. 615 of 1978 as also the decision on the main application, O. P. (M. V.) 14 of 1978 on the file of the Claims Tribunal, Trivandrum, and direct that Tribunal to decide the condonation application and the main application afresh in accordance with law. No orders as regards costs.


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