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Shardaben Vs. M.i. Pandya and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 362 of 1966
Judge
Reported inAIR1971Guj151; (1971)0GLR97
ActsMotor Vehicles Act, 1939 - Sections 110-C and 111-A; Code of Civil Procedure (CPC), 1908 - Order 33; Constitution of India - Article 226
AppellantShardaben
RespondentM.i. Pandya and anr.
Appellant Advocate K.K. Chokhavala, Adv. for; N.H. Bhatt, Adv.
Respondent Advocate K.T. Pathak, Adv.
Cases ReferredHarishchandra v. Triloki Singh
Excerpt:
.....5 of limitation act, sections 110c and 111a of motor vehicles act, 1939, order 33 of code of civil procedure, 1908 and article 226 of constitution of india - motor accident claims tribunal (mact) dismissing petitioner's claim for compensation on ground of delay challenged - order 33 applicable to application for compensation under section110a of act - act of 1939 itself provides that application for compensation can be entertained even after prescribed period of 60 days if sufficient cause for delay made out - no need to invoke section 5 of limitation act - order passed by tribunal liable to be set aside - matter remitted back to tribunal for fresh disposal. - - provided that the claims tribunal may entertain the application after the expiry of the said period of sixty day if..........of such a claim for compensation as a pauper by resorting to the provisions of order 33 of the civil procedure code, hereinafter referred to as 'the code'. the petitioner's husband met with an accident while he was travelling in the truck of respondent no. 2, which truck got over-turned on july 8, 1965, the petitioner's husband died on that very day as a result of this accident. thereafter, the present claim for compensation for a sum of rs. 25,000/- was made before the motor accident claims tribunal, hereinafter referred to as 'the tribunal', on september 9, 1965. an application for permission to proceed with the application as a pauper was made on october 1, 1965, and an application for condonation of delay was also filed on the same day. the learned tribunal held that there was no.....
Judgment:

1. The petitioner widow challenges in this petition the order of the Motor Accident Claims Tribunal, dismissing the petitioner's claim for compensation under Section 110-A of the Motor Vehicles Act, 1939, hereinafter referred to as 'the Act' on the ground that it was time-barred and there was no sufficient reason to condone the delay, and that there was no provision to permit the institution of such a claim for compensation as a pauper by resorting to the provisions of Order 33 of the Civil Procedure Code, hereinafter referred to as 'the Code'. The petitioner's husband met with an accident while he was travelling in the truck of respondent No. 2, which truck got over-turned on July 8, 1965, the petitioner's husband died on that very day as a result of this accident. Thereafter, the present claim for compensation for a sum of Rs. 25,000/- was made before the Motor Accident Claims Tribunal, hereinafter referred to as 'the Tribunal', on September 9, 1965. An application for permission to proceed with the application as a pauper was made on October 1, 1965, and an application for condonation of delay was also filed on the same day. The learned Tribunal held that there was no provision for pauperism as Order 33 of the Code had no application. Assistant Collector regards the question of limitation, the learned Tribunal held that the period of limitation provided in Section 110-A (3) of the Act was 60 days from the date of the occurrence of the accident and not two months and therefore the application was time-barred. The learned Tribunal further held that ignorance of law was no excuse and that the subsequent application, Ex. 5, embodying various grounds for condonation of delay could not be legally taken into consideration because such an application for condonation was not presented along with the main application. Ex. 1. It is this order, which is challenged by the petitioner in this petition.

2. Section 110-A (1) provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 110, that is, in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles may be made to the Motor Accidents Claims Tribunal for adjudication. (a)........(b) where death has resulted from the accident, by the legal representatives of the deceased. Section 110-A (2) provides that 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. Section 110-A (3) provides for limitation as under: -

'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 day if it is satisfied that the applicant was prevented by sufficient cause from making the application in time'.

Section 110-B provides that on receipt of an application for compensation 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 or persons 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. Section 110-C provides for the procedure and powers of the Claims Tribunal. It runs as under: -

'(1) In holding any inquiry under Section 110-B, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

(2) A Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 Chapter XXXV of the Code of Criminal Procedure, 1898'. Section 110-E provides for recovery of money from insurer as arrear of land revenue. Section 110-F, which is material for our purpose, bars the jurisdiction of civil Courts. It runs as under: - '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'.

For the purpose of carrying into effect the provisions of Sections 110 to 110-E, the State Government is empowered under Section 111-A to make rules generally, and in particular, for the following matters: -

(a) The form of application for claims for compensation and the particulars it may contain; and the fees, if any, to be paid in respect of such applications;

(b) The procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter:

(c) The powers vested in a civil Court which may be exercised by a Claims Tribunal............................

It is in the exercise of powers under Section 111-A that the relevant rules have been framed by the State Government, namely, Rules 291 to 312. Rule 291 prescribes the form for the application. Rule 292, which is material for our purpose, provides that an application for compensation under Rule 291 shall be accompanied by an amount equal to one-half of ad valorem fee leviable on the amount at which the claim is valued in the application according to the scale prescribed under Article 1 of Schedule I to the Bombay Court-fees Act, 1959; provided that if the person making an application succeeds, he shall be liable to make good the deficit, if any, between the full ad valorem fee payable on the amount at which the claim is valued in the application according to the said scale and the fee already paid by him. Rule 294 provides for the powers to be exercised by the Claims Tribunal as under:

'The Claims Tribunal may exercise all the powers of a Civil Court save in so far as the same are not inconsistent with the provisions of the Motor Vehicles Act, 1939, and the rules framed thereunder'. Rule 295 provides for the examination of applicant after receiving the application under Rule 291. Rule 297 provides for notice to opposite party, and appearance and examination of the opposite party is provided in Rule 298. Issues are to be framed under Rule 299. Under Rule 300, after framing the issues, the Claims Tribunal shall proceed to record evidence therein which each party may desire to produce: Rule 301 provides for the method of recording evidence; and R. 302 deals with local inspection. Rule 303 provides for power of summary examination. The Claims Tribunal has to keep a brief diary of the proceedings on the application under Rule 304. A judgment is to be passed under Rule 306 by the Claims Tribunal, recording concisely therein the finding on each of the issues framed and its reasons for such finding. Rule 307 deals with summoning of witnesses. Rule 308 provides for appearance of legal practitioner, who may be permitted by the Claims Tribunal. Rule 310, which is material and which provides for application of Civil Procedure Code, runs as under: -

'In so far as these rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 (V of 1908) for the trial of suits'.

3. From this Act and the scheme of the Act and the Rules, it is clear that the Claims Tribunal is constituted under Section 110 for a particular area specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles. The institution of the proceeding is by an application for compensation as stated in Section 110-A in the form prescribed. Limitation for such application is provided in Section 110-A (3) of only sixty days from the date of the occurrence of the accident. But the Claims Tribunal can entertain the application even after the expiry of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. Under Section 110-B, the Claims Tribunal disposes of this application after giving the parties an opportunity of being heard and holding an inquiry into the claim, and it has to make an award determining the amount of compensation which appears to it to be just specifying the person or persons to whom compensation is to be paid and the amount which is to be paid by the insurer. Under Section 110-C (2), the Claims Tribunal is given all the powers of a Civil Judge for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents. Rule 294 also confers all the powers of a civil Court on the Claims Tribunal in so far as the same are not inconsistent with the provisions of the Act and the rules made thereunder. Therefore, all the powers of a civil Court are conferred on the Claims Tribunal. Right of appeal is also provided under Section 110-D of the Act to the High Court. A material provision in Section 110-F of the Act ousts the jurisdiction of the Civil Court. The said section provides that where any Claims Tribunal is 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. Therefore, it is obvious on a bare perusal of the scheme of the Act that the jurisdiction of the Civil Courts is ousted and the Claims Tribunal is constituted under the Act to discharge the duties, which would have otherwise fallen on an ordinary civil Court of the land. The relevant provision in Section 110-C of the Act as regards procedure and powers of a Claims Tribunal provides that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and even a local inspection, and under Rule 294 it has all the powers of a Civil Court. Having regard to the other provisions already referred to, the Tribunal possesses all the attributes of a Court and it has to decide the claim on the basis of legal evidence in accordance with law by a definitive final judgment. The Tribunal is for all intents and purposes a Civil Court discharging the same functions and duties in the same manner as a Civil Court is expected to do. Therefore, following the decision of their Lordships in Jugal Kishore v. Sitamarhi Central Coop. Bank Ltd., AIR 1967 SC 1494 at page 1499, where in similar circumstances, the Registrar under the Cooperative Societies Act was held to be a Court, even such a Claims Tribunal must be held to be a Court of law to which the Civil Procedure Code would clearly apply. This being the original civil proceeding under Section 141 of the Code, this proceeding also could be permitted to be instituted as a pauper by taking into consideration the provisions of Order 33 of the Code.

4. Even otherwise Rule 294 itself makes it clear that all the powers of a civil Court are conferred on the Claims Tribunal. All the powers would necessarily include the power to permit a litigant to institute the proceeding as a pauper which is vested in the Civil Court under Order 33 of the Code, and it would also vest in the Claims Tribunal by the specific provision of Rule 294. Mr. Pathak was unable to point out any inconsistency in the language of any of the provisions of the Motor Vehicles Act itself or the Rules framed thereunder, which would negative the application of the salutary provision for the protection of an impecunious litigant. The poverty of a litigant would be no ground, which should deprive him of his right of such an equitable and just compensation from the Tribunal. The present applicant widow has claimed a compensation of Rs. 25,000/-, and merely because she is not in a position to pay half the amount of ad valorem court-fees, thereon, the Claims Tribunal has refused to entertain this claim. The Claims Tribunal was obviously in error in presuming that there was no provision which would make the Civil Procedure Code and in particular. Order 33 of the Code applicable to such an application for compensation under Section 110-A of the Act. The Claims Tribunal can be treated as a Court possessing all the powers of a civil Court, and even the wide ambit of Rule 294 confers such a power, and even if there by any doubt, the same is further clarified by the provision contained in Rule 310, which provides that in so far as the rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure. The learned Claims Tribunal, however, held that Rule 310 could not help the petitioner, as it would bring in those provisions of the Code which apply at the stage of 'trial', and the 'trial' would mean only the hearing of the suit. The trial of a suit involves a much wider concept than only the hearing of the suit. All the procedural stages right from the institution of a suit till the suit ends in a decree would be included in the broader concept of the term 'trial'. Mr. Chokhawala, in this connection, relied upon a decision of a Division Bench of the High Court of Bombay, consisting of Chagla C.J. and Dixit J., in Sitaram Hirachand Birla v. Yograjsing Shankarsing Parihar. AIR 1953 Bom 293, where the Division Bench construed Section 90 (2) of the Representation of the People Act, 1951, which provided that every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, in the trial of suits. The Court in terms held that the 'trial' of suits did not mean the same thing as 'the hearing of a suit', which was referred to in Order 18 of the Civil Procedure Code and subsequent Order. A Court is concerned with the trial of a suit from the time when it is instituted, and the hearing of a suit is only a part of the trial of the suit. But a great many things go on after a suit is instituted which are all concerned with the trial of a suit and Section 90 (2) could not be restricted only to the stage of the hearing of the suit. Therefore, it was held that the power of amending a petition could be exercised under Section 90 (2) of that Act. This decision is in terms approved by the Supreme Court in Harishchandra v. Triloki Singh, AIR 1957 SC 444 at pp. 454-455, which now settles this wider meaning of the term 'trial' as connoting the entire proceedings before the Tribunal and that 'powers' and 'procedure' are interchangeable terms. Mr. Pathak sought to distinguish this decision on the ground that even that decision only held that after the suit is instituted, the provisions regarding the trial would have to be applied as per the Code. In the present case, however, no application for compensation could be entertained by the Claims Tribunal in view of Rule 292, unless the application for compensation was accompanied with half the ad valorem court-fees at least in the first instance. Mr. Pathak ignores the fact that Rr. 291 to 312 have been enacted by the State Government under the power conferred under Section 111-A to carry into effect the provisions of Sections 110 to 110-E and particularly, to lay down the procedure to be followed by the Claims Tribunal in holding an inquiry under the Chapter and to prescribe the powers of the Civil Court to be exercised by the Claims Tribunal and to fix the court-fees payable on such applications. Therefore, it is obvious from the rule making power itself, which is conferred under R. 111-A, that the provision of court-fees itself is a procedural provision, and while.........making this procedure for court-fees, the rule making authority specifically provided Rules 294 and 310 to make the position clear that the Claims Tribunal shall exercise all powers of a civil Court without any restriction, and even where there was any insufficient provision or the rules were silent on any point, the Claims Tribunal shall follow the procedure as laid down in the Civil Procedure Code. Therefore, the Claims Tribunal was obviously under an error in presuming that there was no provision in the Rules or the Act to permit an application under Section 110-A of the Act to be filed by the petitioner as a pauper and that Order 33 of the Code was not applicable to this case, and by committing this patent error of law, the Claims Tribunal has refused to exercise further jurisdiction in the matter. Therefore, the order of the Claims Tribunal must be quashed.

5. As regards the second ground given by the Claims Tribunal, Mr. Pathak vehemently argued that the question of delay could not be raised before this Court, as the Tribunal has used its discretion judicially in holding that there was no sufficient cause for condoning the delay. It is true that the question of condonation of delay would not involve any jurisdictional error. There is a vital difference between the question of limitation decided under Section 3 and Section 5 of the Limitation Act. When a claim of limitation is sought to be decided under Section 3 of the Limitation Act, there would be a jurisdictional error, while when a claim is disposed of under Section 5 of the Limitation Act on the ground that there was no sufficient cause for condoning the delay, the Tribunal would be within its jurisdiction in determining the question whether sufficient cause existed or not, and its finding that there was no sufficient cause for condoning the delay cannot be ordinarily reviewed in the supervisory jurisdiction under Art. 226 or Article 227 of the Constitution by this Court. Even so, the question may arise whether the order refusing to condone the delay has been passed arbitrarily or the order is ultra vires or whether the order is passed on extraneous consideration, & if it is found that the order is passed on any of the aforesaid grounds, then the jurisdiction to review such an order would exist in this Court to require the Tribunal to conform with the rule of law. In the present case, what the Claims Tribunal has done, is that it has invoked the provision of Section 5 of the Limitation Act, and it has further assumed that a subsequent application for condonation of delay could not be taken into consideration. It should be kept in mind that there was no question of invoking Section 5 of the Limitation Act. The Motor Vehicles Act itself while creating a limitation under Section 110-A (3) of sixty days from the date of the occurrence of the accident, has conferred a power on the Claims Tribunal that it 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. It is obvious from this proviso to Section 110-A (3) of the Act, that the applicant should satisfy the Claims Tribunal that she was prevented by sufficient cause from making the application in time, and if the Tribunal is so satisfied then even after the expiry of the said period of sixty days it may entertain the application. Mr. Pathak vehemently argued that she had received an advice that the claim could be filed within two months. All these are grounds, cannot summarily be dismissed without applying the mind in the context of the provisions of the Act which invest such a wide jurisdiction to do justice to such claims in the Claims Tribunal. As the Claims Tribunal has not disposed of the question of condonation of delay as per the provisions laid down by the proviso and has disposed of this question on extraneous ground without applying its mind to the relevant consideration and it has failed to hear and determine this matter in accordance with law as laid down in the said proviso, to Section 110-A (3), the matter must go back for hearing and disposal in accordance with law in the light of the aforesaid observations.

6. In the result, this petition must be allowed, and the matter must go back to the Claims Tribunal for further hearing and disposal in accordance with law on both the questions as to whether the delay should be condoned on the grounds alleged by the applicant and whether the applicant should be permitted to proceed with this application as a pauper. Rule is, accordingly, made absolute with costs.

7. Petition allowed.


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