CIVIL APPELLATE JURISDICTION : Civil Appeal No. 210 of 1975.
From the Judgment and order dated the 13th October, 1971 of the Allahabad High Court in Special Appeal No. 114 of 1969.
D. D. Chawla and H. K. Puri for the Appellant.
J. B. Goyal, D. P. Mukherjee and S. P. Singh for Respondents Nos. 1-3.
The Judgment of the Court was delivered by
This is an appeal by certificate of fitness granted by the Allahabad High Court. The question of law which falls for determination in this appeal is whether an application for compensation filed under section 110A of the Motor Vehicles Act, 1939 (for brevity, the Act), arising out of an accident which occurred more than 60 days before the constitution of the Motor Accidents Claims Tribunal under section 110 could be entertained by the Tribunal or the remedy of the aggrieved person was to institute a civil suit.
On the 11th September 1966 occurred an accident in which Shri Amar Nath Misra, husband of respondent no. 1 and father of respondents 2 and 3 met his death due to collision between his motor cycle and a truck owned by appellant no. 2 and insured with appellant no. 1. A cause of action accrued to the respondents 1, 2 and 3 (hereinafter called the respondents) to claim compensation as legal representatives of the deceased under the Indian Fatal Accidents Act, 1855. A suit could be brought under Article 82 of the Limitation Act, 1963 within two years of the occurrence of the accident. But in the mean-time the Government of Uttar Pradesh constituted the Claims Tribunal under section 110 of the Act, by a notification published in the Gazette of the 18th March, 1967. The respondents filed an application under section 110A on the 8th July, 1967. The appellants objected to the jurisdiction of the Tribunal to entertain the application. The Tribunal over-ruled the. Objection and held that it had jurisdiction to entertain the application. The appellants filed a writ application in the High Court which was allowed by a learned single Judge. In appeal filed by the respondents there was a difference of opinion between the two judges constituting the Division Bench. On reference to a third Judge the ultimate view taken by the High Court was that the Tribunal had jurisdiction to entertain this application. Hence this appeal.
The Act was amended by Central Act 100 of 1956 with effect from the 16th February 1956. The original section 110 was deleted and new sections 110 to 110F were introduced. The Claims Tribunals however, were not constituted by the State Governments at one and the same time. They were constituted with different dates for different areas. Until and unless the Claims Tribunals were constituted the provisions of the new sections introduced in the year 1956 could not be availed of. But as soon as a Claims Tribunal was constituted the jurisdiction of the Civil Court was barred by section 110F which reads as follows:
"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." But difficulties arose in giving full effect to the bar of jurisdiction of the Civil Court because of the language of section 110A providing for the filing of an application for compensation. There could not be any debate or dispute that if an accident occurred after the constitution of the Claims Tribunal, the only remedy of the claimant was to file an application under section 110A. The jurisdiction of the Civil Court in such a case was ousted in express language. Suits which had been instituted prior to the constitution of the Claims Tribunal remained unaffected and had to proceed to disposal in Civil Courts. In a third type of case also there could not be much scope for debate where an accident had occurred prior to the constitution of the Tribunal and the remedy of the suit was barred on the date of such constitution. A barred remedy under no circumstances was meant to be revived under section 110A. But the difficulty arose in cases where accidents had occurred prior to the constitution of the Claims Tribunal, the remedy of action in Civil Court was alive but no suit had been filed. In such cases the vested right of action was not meant to be extinguished. The remedy of either an application under section 110A or a civil suit must be available; surely not both. Majority of the High Courts have expressed the view that in such a situation the only remedy available was that of filing an application before the Tribunal and the jurisdiction of Civil Court was barred. Vide Unique Motor and General Insurance Co. Ltd., Bombay v. Kartar Singh and another;(1) M/s V. C. K. Bus Service (P) Ltd. Coimbatore and another v. H. B. Sethna and others.(2) Palni Ammal and others v. The Safe Service, Ltd., Salem and others;(3) Natverlal Bhikhalal Shah v. Thakarda Khodaji kalaji and others;(4) Jade Motor Transport Co. and others v. Jagdish Prasad Bhimganj Ward Kota(5) and Thomas and others v. Messrs Hotz Hotels Ltd. and others(6). A contrary view was taken by the Madhya Pradesh High Court in Khatumal Ghanshamdas v. Abdul Qadir Jamaluddin and others(7); Kumari Sushma Mehta v. Central Provinces Transport Services Ltd. and others(8). In the first case of Madhya Pradesh observations were obiter dicta because on facts it was a case of a pending suit. Similar obiter dicta were made by a Bench of the Patna High Court following the Madhya Pradesh decisions in the case of The Bihar Co-operative Motor Vehicles, Insurance Society Ltd. v. Rameshwar Raut and others(9). The question falls for determination in this Court for the first time and we have to decide which of the two views is correct.
We shall now read section 110A as it stood at the relevant time:
"110A. (1) An application for compensation arising
out of an accident of the nature specified in sub-
section (1) of section 110 may be made-
(a) by the person who has sustained the injury;
or
(b) where death has resulted from the accident,
by all or any of the legal representatives of
the deceased; or
(c) by any agent duly authorised by the person
injured for all or any of the legal
representatives of the deceased, as the case
may be;
Provided that where all the legal representatives
of the deceased have not joined in any such application
for compensation, the application shall be made on
behalf of or for the benefit of all the legal
representatives of the deceased and the legal
representatives who have not so joined, shall be
impleaded as respondents to the application.
(2) 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.
(3) 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 days if it is satisfied that the applicant was
prevented by sufficient cause from making the
application in time."
A period of six months was substituted in place of sixty days in sub- section (3) by Act, 56 of 1969 with effect from 2-3-1970.
On the plain language of sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not of substantive law. It is well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it retrospective. The expressions "arising out of an accident" occurring in subsection (1) and "over the area in which the accident occurred", mentioned in sub-section (2) clearly show that the change forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred To that extent there was no difficulty in giving the answer in a simple way. But the provision of limitation of 60 days contained in sub-section (3) created an obstacle in the straight application of the well-established principle of law. If the accident had occurred within 60 days prior to the constitution of the Tribunal then the bar of limitation provided in sub-section (3) was not an impediment. An application to the Tribunal could be said to be the only remedy. If such an application, due to one reason or the other, could not be made within 60 days then the Tribunal had the power to condone the delay under the proviso. But if the accident occurred more than 60 days before the constitution of the Tribunal then the bar of limitation provided in sub-section (3) of section 110A on its face was attracted. This difficulty of limitation led most of the High courts to fall back upon the proviso and say that such a case will be a fit one where the Tribunal would be able to condone the delay under the proviso to subsection (3), and led others to say that the Tribunal will have no jurisdiction to entertain such an application and the remedy of going to the Civil Court in such a situation was not barred under section 110F of the Act. While taking the latter view the High Court failed to notice that primarily the law engrafted in sections 110A and 110F was a law relating to the change of forum.
In our opinion in view of the clear and unambiguous language of sections 110A and 110F it is not reasonable and proper to allow the law of change of forum give way to the bar of limitation provided in sub-section (3) of section 110A. It must be vice versa. The change. Of the procedural law of forum must be given effect to. The underlying principle of the change of law brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the Claims Tribunal on payment of a nominal court fee where as a large amount of ad valorem court fee was required to be paid in Civil Court. It is legitimate to think that the legislature did not think it necessary to affect the pending suits but wanted the cheap remedy to be available as soon as the Tribunal was constituted by the State Governments, in all cases, irrespective of the date of the accident, provided the remedy of going to the Court was not barred on the date of the constitution of the Tribunal. Then, how is the difficulty of limitation in such cases to be solved is the question.
In our opinion taking recourse to the proviso appended to subsection (3) of section 110A for excusing the delay made in the filing of the application between the date of the accident and the date of the constitution of the Tribunal is not correct. Section 5 of the Limitation Act, 1963 or the proviso to sub-section (3) of the section 110A of the Act are meant to condone the default of the party on the ground of sufficient cause. But if a party is not able to file an application for no fault of his but because the Tribunal was not in existence, it will not be a case where it can be said that the "applicant was prevented by sufficient cause from making the application in time" within the meaning of the proviso. The time taken between the date of the accident and the constitution of the Tribunal cannot be condoned under the proviso. Then, will the application be barred under sub-section (3) of section 110A? Our answer is in the negative and or two reasons:
(1) Time for the purpose of filing the
application under section 110A did not start
running before the constitution of the
Tribunal. Time had started running for the
filing of the suit but before it had expired
the forum was changed. And for the purpose of
the
changed forum, time could not be deemed to
have started running before a remedy of going
to the new forum is made available.
(2) Even though by and large the law of
limitation has been held to be a procedural
law, there are exceptions to this principle.
Generally the law of limitation which is in
vogue on the date of the commencement of the
action governs it. But there are certain
exceptions to this principle. The new law of
limitation providing a longer period cannot
revive a dead remedy. Nor can it suddenly
extinguish vested right of action by
providing for a shorter period of limitation.
In Delhi and London Bank, Limited v. Melmoth A D. Orchard(1) Sir Barnes Peacock delivering the judgment on behalf of the Board said at page 135:
"Indeed, if the construction put upon the Act by
the High Court at Bombay, and by the Chief Court in the
Punjab, is correct, a judgment creditor could not,
after the three years, have enforced a judgment which
was in force in the Regulation Provinces when Act XIV
of 1859 was passed, or a judgment which was in force in
the Punjab at the time when the Act was extended to
that province, however diligent he might have been in
endeavouring to enforce his judgment, and however
unable, with the use of the utmost diligence, to get at
the property of his debtor. Such a construction would
cause great inconvenience and injustice, and give the
Act an operation which would retrospectively deprive
the creditor of a right which he had under the law as
it existed in the Regulation Provinces at the time of
the passing of the Act, and in the Punjab at the time
of the introduction of it."
In Gopeshwar Pal v. Jiban Chandra Chandra(2), Jenkins, C.J. delivering the judgment on behalf of the majority of the full Bench said at page 1141:
"Here the plaintiff at the time when the amending
Act was passed had a vested right of suit, and we see
nothing in the Act as amended that demands the
construction that the plaintiff was thereby deprived of
a right of suit vested in him at the date of the
passing of the Amending Act. It is not (in our opinion)
even a fair reading of section 184 and the third
Schedule of the Bengal Tenancy Act, as amended, to hold
that it was intended to impose an impossible condition
under pain of the forfeiture of a vested right, and we
can only construe the amendment as not applying to
cases where its provisions cannot be obeyed." The majority of the Full Bench of the Madras High Court in Rajah Sahib Meharban-I-Doston Sri Raja Row V. K. M. Surya Row Bahadur,Sirdar,Rajahmundry Sircar and Rajah of Pittapur v. G. Venkata subba Row and five other (1) has taken the same view following the Full Bench decision in Gopeshwar Pal’s case at page 650. Amendment of the law of limitation could not destroy the plaintiff’s right of action which was in existence when the Act came into force. We are conscious of the distinction which was sought to be made in the application of these principles. It was said that the right could not be destroyed but recourse to suit would be available under the old law of limitation. We,however, think that giving retrospective effect to the change of law in relation to the forum, in the context of the object of the change, is imperative. That being so the principles aforesaid for overcoming the bar of limitation will be applicable.
Apropos the bar of limitation provided in section 110A(3), one can say, on the basis of the authorities aforesaid that strictly speaking the bar does not operate in relation to an application for compensation arising out of an accident which occurred prior to the constitution of the Claims Tribunal. But since in such a case there is a change of forum, unlike the fact of the said cases, the reasonable view to take would be that such an application can be filed within a reasonable time of the constitution of the Tribunal, which ordinarily and generally would be the time of limitation mentioned in sub-section (3). If the application could not be made within that time from the date of the constitution of the Tribunal, in a given case, the further time taken in the making of the application may be held to be the reasonable time on the facts of that case for the making of the application or the delay made after the expiry of the period of limitation provided in subsection (3) from the date of the constitution of the Tribunal can be condoned under the proviso to that sub-section. In any view of the matter, in our opinion, the jurisdiction of the Civil Court is ousted as soon as the Claims Tribunal is constituted and the filing of the application before the Tribunal is the only remedy available to the claimant. On the facts of this case, we hold that the remedy available to the respondents was to go before the Claims Tribunal and since the law was not very clear on the point, the time of about four months taken in approaching the Tribunal after its constitution can be held to be either a reasonable time or the delay of less than 2 months could well be condoned under the proviso to sub-section (3) of section 110A.
For the reasons stated above, we dismiss this appeal with costs to respondents 1, 2 and 3. V.P.S. Appeal dismissed.