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Azimulla Khan Vs. Smt. Shanti Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 170 of 1980
Judge
Reported inAIR1986Raj25
ActsMotor Vehicles Act, 1939 - Sections 110A; Limitation Act, 1908 - Sections 5 and 14
AppellantAzimulla Khan
RespondentSmt. Shanti Devi and ors.
Appellant Advocate Narendra Jain, Adv.
Respondent Advocate D.K. Soral,; M.R. Singhvi,; S.C. Srivastava and;
DispositionAppeal allowed
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the..........claim of rs. 65,000/- was preferred as compensation from the respondents.5. the claimant-appellant filed claim petition in the court of motor accident claims tribunal, chhatarpur (m.p.) on 22nd jan., 1975 which was registered as m.a.c.t. case no. 2/75, along with an application under section 20(b) c.p.c. for leave to sue the defendants in the tribunal of chhatarpur.6. on 28th jan., 1975, after registration of the claim petition and, following the due procedure, the notices were issued to the respondents to submit the written statements. after service on the respondents, the respondents nos. 1, 2 and 3 made their appearance through their counsel. on 29th july, 1975, the respondent no. 4 made an application to the tribunal to set aside the order for proceedings taken ex parte against him......
Judgment:

Guman Mal Lodha, J.

1. Yet another fatal accident of wrong legal advice has proved fatal toclaimants, depriving compensation.

2. This appeal filed under Section 110-D of the Motor Vehicles Act, 1939, against the judgment dated the 2nd April, 1980 passed by Motor Accident Claims Tribunal, Bharatpur holding that the applicant/appellant is entitled to getRs. 23,700/- as compensation but, dismissed the application for compensation on the ground of petition being barred by limitation.

3. The bus No. MPA 3760 started forgoing to Khwaja Chisti's Dargah, Ajmer on 20th July, 1974 and reached Ajmer on 24th July, 1974. While returning from Ajmer, when the said bus, on 28th July, 1974 at about 11 a.m. was in between Mahwa and Bharatpur, truck No. USM 7075 of Harnamdas Chawla, the respondent No. 3, came from opposite side rashly and speedily, and collided (with) each other while crossing. The appellant was sitting in the said (sic) resting on the window.

On account of the collision of truck No. USN (USM?) 7055 which was being driven by Bharatlal, the respondent No. 5, negligently, insured with the New India Insurance Company, Bareilly, with bus No. MPA 3760 belonging to the respondent No. 1, driven by the respondent No. 2; the right hand of the appellant was crushed and had to be amputated having received collar bone fracture and had to undergo a prolonged treatment.

4. The claimant-appellant in the claim petition pleaded that he was 36 years old on the day of the accident. Therefore, a claim of Rs. 65,000/- was preferred as compensation from the respondents.

5. The claimant-appellant filed claim petition in the Court of Motor Accident Claims Tribunal, Chhatarpur (M.P.) on 22nd Jan., 1975 which was registered as M.A.C.T. case No. 2/75, along with an application under Section 20(b) C.P.C. for leave to sue the defendants in the Tribunal of Chhatarpur.

6. On 28th Jan., 1975, after registration of the claim petition and, following the due procedure, the notices were issued to the respondents to submit the written statements. After service on the respondents, the respondents Nos. 1, 2 and 3 made their appearance through their counsel. On 29th July, 1975, the respondent No. 4 made an application to the Tribunal to set aside the order for proceedings taken ex parte against him. On 8th Sept., 1975, the respondent No. 3 filed written statement. He did not make any objection regarding jurisdiction of the Tribunal but, the respondents Nos. 1, 2 and 4 challenged the jurisdiction of the Tribunal of Chhatarpur,which vide its order dated the 9th Dec., 1975 held that it had no jurisdiction and the claim petition be returned to the claim petitioner for presentation before the proper Court. The appellant received the said claim petition on 10th Dec., 1975 and on the very same day he rushed at Bharatpur and filed claim petition, next day on 11th Dec., 1975 before the Tribunal, Bharatpur along with an application under Section 14 read with Section 5 of the Limitation Act. Before the Tribunal, Bharatpur, the respondents Nos. 3 and 4 filed their reply wherein they took preliminary objections that the appellant has not filed the claim petition within time and the Tribunal has no jurisdiction to decide it. On merits, though they admitted the accident but pleaded that the accident took place on account of negligence of the appellant himself and not by the negligence of the respondents Nos. 3 and 4.

7. After framing of the issues on the basis of the pleadings of the parties and recording of the evidence of the parties, vide the impugned award, the Tribunal has rejected the claim petition of the appellant firstly, on the ground that it is barred by limitation.

8. This finding of the Tribunal is challenged by ihe appellant. The appellant-claimant examined Shivanand Sinha (A.W. 4) before the Tribunal in order to explain the delay. Earlier an application was filed before the Tribunal of Chhatarpur. The respondenls-non-applicants appeared there and sought adjournments but did not move any application that it has got no jurisdiction, for about 6 months. In view of the above, there was sufficient cause for the delay in filing the application thereafter before this Tribunal when the same was returned. As mentioned above, the Tribunal of Chhatarpur returned the claim petition on 10th Dec., 1975 and the present claim petition was filed before the Tribunal, Bharatpur on llth Dec., 197.S. The advice given by S.N. Sinha (A.W. 4) was sufficient for filing petition earlier at Chhatarpur and, the Tribunal should have noticed that in accident petitions, stringent rules of limitations cannot be applied. The socio-economic object is paramount and Tribunals should not massacre it on technicalities.

9. The accident claim compensation cases are based on death or injury in accidents and.the object of social security and social welfair legislation will be frustrated if the Tribunal throw out the claims on the slightest pretext. The latest trend of legislation in such mattersis that even me copies of the first information report of the incident are required to be sentto the Tribunals and the Tribunals are required to suo motu conduct petitions, in State of Tamil Nadu. True it is, there is no suchuniversal law in Rajasthan but the legislativeintent is very clear. Rejection of the claim onthe ground of delay in the present case, in myopinion, is fatal accident in itself, as theTribunal has deprived the claimant ofcompensation, due to accidental wrong legaladvice.

10. The finding of the Tribunal on this point of limitation is reversed and it is held that the claim petition was within limitation.

11. The Tribunal has come to the conclusion that the compensation of Rs. 23,700/- should be awarded. In the facts and circumstances of the ease. 1 am of the opinion that accepting the finding of the Tribunal on this point of compensation, the compensation of Rs. 23,700/- should be awarded and, the learned counsel for the parties have got not much to say against it. The only modification, which 1 am persuaded to do that in the finding of the Tribunal, is that in the facts and circumstances, the proportionate negligence of the bus driver was 20% and that of the truck driver is 80% and, to that extent the impugned order is modified.

12. In the result, this appeal is allowed without any order as to costs. The impugned award dismissing the claim petition of the appellant, as a whole is set aside and the claim petition is partly allowed with the above modification holding that the appellant-claimant would be entitled to get the compensation of Rs. 23,700/- from the non-applicants-respondents with interest at the rate of 6% from the date of application till the date of realisation in the proportionate rate as indicated above. From the above amount, up to Rs. 5000/- would be paid by the Oriental Fire & General Insurance Company, Patna Branch, the insurer of the bus No. MPA 3760; and Rs. 20,000/- would be paid by the New India Insurance Co.. Civil Line, Bareilly, (U.P.).

13. In case the above payment is not made within three months from today, the respondents would pay 12% interest instead of 6% from the date of application till the date of realisation.


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