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Ramashray Singh v. Tarabati Kuer And Others
Judgment Summary — Raj Kishore Prasad, J.
Factual and Procedural Background
On 2 August 1961 Girish Chandra Prasad was crushed under the wheels of a bus and died on 3 August 1961 in hospital. His widow, Mrs. Tarabati Kuer (respondent No. 1), filed an application under section 110-A(1)(b) of the Motor Vehicles Act, 1939 on 3 October 1961 before the Claims Tribunal at Muzaffarpur. A petition to add the insurer (The Oriental Fire and General Insurance Company Ltd.) as a party was made on 23 November 1962 and the insurer was added as a party on 16 January 1963. The insurer filed a written statement but did not contest the application at the hearing. On 20 July 1965 the Claims Tribunal awarded Rs. 3,000 to the widow and made the driver (now dead), the owner (opposite party No. 2, appellant before this Court) and the insurer jointly and separately liable. The present appeal under section 110-D(1) of the Motor Vehicles Act was preferred by the owner (opposite party No. 2) only. The driver had died and the appeal as against him abated. The insurer did not appeal against the award.
Legal Issues Presented
- Whether the widow's application under section 110-A(1)(b) was barred by limitation under section 110-A(3) of the Motor Vehicles Act because it was filed more than sixty days after the accident (application filed on 3.10.1961 for accident on 2.8.1961).
- Whether the Claims Tribunal made a proper finding that the death of the deceased resulted from the negligence of the motor-driver (i.e., whether there was evidence of driver negligence).
- Objections raised by the insurer (in argument): (a) whether the insurer is liable under section 95(1)(b) and section 110-B if the owner is not liable; (b) whether the claim is barred by limitation as against the insurer because the insurer was added as a party long after sixty days; and (c) whether there was evidence of negligence of the driver.
Arguments of the Parties
Appellant / Owner's Arguments (as presented by Mr. Surya Bhusan Prasad Singh)
- The widow's claim was time-barred under section 110-A(3) because it was filed beyond the sixty-day period prescribed by that subsection.
- There was no finding that the death of the deceased was caused by the negligence of the motor-driver; thus the award lacked a necessary factual foundation.
Insurer's Arguments (as presented by Mr. B.K. Bose)
- Relying on section 95(1)(b) and section 110-B of the Act, the insurer argued that if the owner is not liable, the insurer would not be liable; further, the Claims Tribunal had not specified the amount payable by the insurer under section 110-B.
- The widow's application was barred by limitation as against the insurer because the insurer was added as a party only on 16 January 1963 after a petition filed on 23 November 1962 (long after sixty days), and no condonation under the Limitation Act had been sought.
- There was no evidence that the driver was negligent.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court addressed the arguments in sequence and applied statutory interpretation and evidentiary reasoning strictly from the materials and findings recorded below.
1. Limitation under section 110-A(3) (applicant's delay): The Court reproduced section 110-A(1)(b) and subsection (3) and observed that although an application must ordinarily be made within sixty days of the accident, the proviso to subsection (3) empowers the Claims Tribunal to entertain an application after that period if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.
The Court noted that the Claims Tribunal's order admitting the application (filed 3.10.1961) did not explicitly state the words "delay condoned" in the initial order but, in its reasons (paragraph 6 of the tribunal's judgment), the tribunal expressly stated it had condoned the delay and exercised its discretionary power under the proviso. The High Court held that this constituted an effective exercise of the tribunal's discretion: an implied condonation through admission (followed by explicit remarks in the judgment) sufficed. The Court further observed that the delay was only one day beyond the sixty-day limit and that the Claims Tribunal was justified in excusing that one day's delay.
On the subsidiary point whether the applicant needed to file a separate formal application for condonation, the Court held there is no statutory requirement that the applicant must file a distinct application for condonation under section 110-A(3). The proviso does not prescribe a procedure requiring a separate condonation petition and the tribunal may of its own accord condone the delay on being satisfied that sufficient cause existed.
2. Negligence of the driver: The Court reviewed the Claims Tribunal's finding (paragraph 4 of its decision) that the occurrence was due to the negligence of the driver, and accepted that finding. Independently, the Court applied the principle of res ipsa loquitur, holding that where a person was crushed under the wheels of a bus and died the following day, negligence could properly be inferred from the circumstances themselves. The widow's testimony—that the deceased told her in hospital that he had been crushed under the wheels because of the driver's negligence—was accepted by the tribunal and endorsed by the High Court as admissible and sufficient to support the finding.
3. Insurer's objections:
- Liability of insurer: The Court acknowledged the insurer's submissions based on section 95(1)(b) and section 110-B concerning the insurer's duty to indemnify and the tribunal's power to specify the amount payable by the insurer. The Court reasoned that because it had held the owner liable, the insurer—who insured the bus—was also liable under the policy and under the Act. The insurer's written statement asserting the bus was not insured with it was negatived by the insurer's failure to contest the application at hearing.
- Limitation as against the insurer: The Court examined the Limitation Act position. It observed that section 22(1) of the old Limitation Act provides that when a new defendant is added, the suit as regards him is deemed instituted when he is made a party. Considered strictly, this meant the widow's claim as against the insurer would be time-barred because the insurer was added well after sixty days. However, the Court found that the insurer had not pleaded this limitation point in its written statement, did not contest the application before the Claims Tribunal, and did not appeal the tribunal's award. Accordingly, the insurer could not, for the first time in this appeal, raise the limitation objection: the point was not ventilated below and the claimant had no opportunity to meet it. For these reasons the Court overruled the insurer's belated limitation plea on appeal.
- Absence of evidence of negligence: For the reasons already given (tribunal finding plus res ipsa loquitur and the widow's testimony), the Court rejected the insurer's contention that there was no evidence of negligence.
Holding and Implications
CORE RULING: APPEAL DISMISSED.
Direct consequences:
- The Claims Tribunal's award of Rs. 3,000 in favour of the widow, Mrs. Tarabati Kuer, is upheld.
- The owner of the bus (appellant) and the insurer (respondent No. 4) remain jointly and separately liable to pay the award amount to the widow.
- The Court found no merit in the appellant's two principal grounds (limitation and lack of negligence finding) and rejected the insurer's objections raised on appeal, including the limitation point which had not been pleaded below.
- Because the applicant (the widow) did not contest the appeal, the Court ordered no costs in this Court.
Broader precedent: The judgment applies statutory interpretation of section 110-A(3) (including the tribunal's power to condone delay) and reaffirms that an added party's limitation defence, if not pleaded and litigated below, may not be allowed to be raised for the first time on appeal. The opinion does not purport to set a novel, binding principle beyond the case-specific application of these statutory provisions.
Disposition
Appeal dismissed. No order as to costs in this Court.
Raj Kishore Prasad, J.:— This is an appeal under section 110-D(1) of the Motor Vehicles Act. 1939, (Act IV of 1939), (hereinafter referred to as “the Act”), by the opposite party No. 2, the owner of the bus in question against an award of the Claims Tribunal, Muzaffarpur, allowing a sum of Rs. 3,000/- to the applicant Mrs. Tarabati Kuer, respondent No. 1, widow of the deceased Girish Chandra Prasad, a civil Court copyist, against opposite party No. 1, the driver, who is now dead and the appeal has abated against him and his heirs; opposite party No. 2, the appellant, the owner of the bus, and opposite party No. 3. The Oriental Fire and General Insurance Company Ltd., which was the Insurer, now respondent No. 4, making them liable both jointly or separately.
2. The facts, put shortly, are these:
3. On 2.8.1961, the deceased Girish Chandra Prasad was crushed under the wheels of the bus driven by opposite party No. 1, respondent No. 3, Ibrahim Mistry, against whom also the appeal has abated, belonging to opposite party No. 2, Ramashray Singh, the owner of the bus, the appellant. Girish Chandra Prasad died subsequently on 3-8-1961 in the hospital. On 3.10.1961 the widow of the deceased, who is respondent No. 1 and was applicant before the Court below, Mrs. Tarabati Kuer, made an application under section 110-A(1)(b) of the Act before the Claims Tribunal under the Act at Muzaffarpur who was the District Judge of the place. On 23-11-1962 on the petition of the applicant, respondent No. 1, to add the Insurer (who is respondent No. 4 before this Court), was made before the Claims Tribunal and that application was allowed on 16.1.1963 and the Insurance Company, was added as opposite party No. 3 on 16.1.1963 It is admitted that respondent No. 4, the Insurance Company, did appear before the Claims Tribunal and file its written statement, but it did not contest the application at the time of the hearing of the application with the result that the claim of the applicant, respondent No. 1, was unresisted by the Insurance Company opposite party No. 3 respondent No. 4. The Claims Tribunal on 20.7.1965 decided the application of the appellant respondent No. 1 in her favour and allowed it, as mentioned before, for Rs. 3,000/- against all the three opposite parties making them all liable jointly and separately. Against this award the only person who has come up in appeal is opposite party No. 2, the owner of the bus, and there is no appeal either on behalf of the driver opposite party No. 1 or on behalf of the insurance company, opposite party No. 3; but all these persons were made respondents to the appeal here.
4. Mr. Surya Bhusan Prasad Singh, a junior Advocate of this Court has argued the appeal admirably well and with great clarity and the argument presented was precise and to the point which shows that he was thoroughly prepared with his case.
5. Two points were placed before me by Mr. Singh, in support of the appeal (i) that the application of the applicant-respondent No. 1 was barred by limitation under section 110-A(3) of the Act, because the claims petition was filed on 3-10-1961 although the accident had taken place on 2-8-1961 which would be beyond 60 days which is the period of limitation prescribed by section 110-A(3) of the Act; and, (ii) that there was no finding that the death of the deceased was caused by the negligence of the motor-driver, respondent No. 3.
6. As regards the first point, it would be useful to read section 110-A(1)(b) and (3) of the Act:
“110-A. (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) ***
(b) Where death has resulted from the accident by the legal representatives of the deceased; or
(c) ***
(2) ***
(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 it is satisfied that the applicant was prevented by sufficient cause from making the application in time.”
7. It is plain from section 110-A(3) of the Act, quoted above, that, no doubt, the application under sub-section (1) of section 110-A is to be made within 60 days of the occurrence of the accident, but the Claims Tribunal has got the power to entertain such an application even 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 was argued by Mr. Singh that when the application was filed on 3.10.1961 there is nothing in order No. 1 dated 3-10-1961 from which it would appear that the Claims Tribunal exercised the discretion vested in it by the proviso to sub-section (3) of section 110-A of the Act and that it expressly condoned the delay. I have looked into the above order and find that this contention is correct; but it would appear from the order under appeal, paragraph 6, that the learned Claims Tribunal considered the question of limitation and observed that:
“By admitting the application however this Tribunal has condoned the delay. This Tribunal has power to condone any delay in the filing of the petition and I think it is a fit case in which the delay should be condoned. Whatever delay there had been in the filing of the petition for compensation is, therefore, condoned.”
8. From the above it is obvious that the learned Claims Tribunal by admitting the application filed on 3-10-1961 impliedly condoned the delay and admitted it in exercise of the powers vested in it by the proviso to sub-section (3) of section 110-A of the Act, and, therefore, that mere fact that it did not in so many words say so or give reasons for entertaining the application after expiry of the limitation would not mean that it did not condone the delay. At the time of filing of the application there was no one to raise the question of limitation, but when the question of limitation was raised before the learned Tribunal it decided it specifically in paragraph 6 of its judgment. In these circumstances, I hold that sufficient cause had been made out to the satisfaction of the Claims Tribunal for not making the application in time. Moreover, the application was barred by limitation by one day only, which, in my opinion, the learned Tribunal was justified in excusing one day's delay and admitting the application.
9. In connection with the first point, it was further urged by Mr. Singh that no application for condonation of the limitation was filed by the applicant (respondent No. 1), and, therefore, the learned Tribunal is wrong in thinking that the fact that the application was admitted would impliedly mean that the limitation was condoned. I think, there is no substance in this contention. The proviso to sub-section (3) of section 110-A does not speak of any application for condonation of the limitation being filed by the applicant. In the absence of specific provision for such an application being made before the Claims Tribunal it can exercise its power to condone the delay. I do not think. It was mandatory for the applicant to make an application for condonation of the delay. The Tribunal had discretion, if it was satisfied that the applicant was prevented by sufficient cause from making the application and, in the instant case, it was so satisfied, and therefore, admitted the application by condoning the limitation of one day only. Under proviso to sub-section (3) of section 110-A of the Act, in my opinion, there is no obligation on the applicant to make an application asking for condonation of the delay. The making of an application for condonation of the limitation in filing the application under section 110-A(1) is not a condition precedent to the exercise of the power of condonation by the Claims Tribunal under the proviso to section 110-A(3). The Tribunal can of its own accord, after being satisfied condone the delay. The Tribunal has done this and it is perfectly legal and in accordance with the proviso to sub-section (3) of section 110-A of the Act.
10. Regarding the second point, the question of negligence of the driver was considered by the learned Tribunal in paragraph 4 of its decision and it held that “It is also clear that the occurrence took place due to negligence of the driver.” The second contention also has, therefore, no force and must be rejected.
11. I will now consider the objections of the Insurance Company, respondent No. 4, which is represented by Mr. B.K Bose. He put forward three objections to the order under appeal, although there is no appeal by the Insurance Company itself against the award. The three points urged by Mr. Bose are: (i) that under section 110-B of the Act, if the owner of the bus, that is, the appellant, is not liable, then the Insurer, that is, respondent No. 4, is also not liable: (ii) that the application of the widow respondent No. 1 is barred by limitation against the Insurer, respondent No. 4 because the application by the applicant for adding the Insurer-respondent No. 4 as a party to her application was made on 23.11.1962, long after sixty days, and on that petition respondent No. 4 was added as opposite party No. 3 on 16.1.1963 and (iii) that there was no evidence of negligence of the driver.
12. Mr. Bose relying on section 95(1)(b) of the Act contended that the insurance company, respondent No. 4, is liable to indemnify the owner of the bus which was Insured with the insurance company to the extent specified in the policy against any liability which may be incurred by him in respect of the death of any person caused by or arising out of the use of a vehicle in a public place, and, under section 110-B of the Act, the Claims Tribunal has to specify the amount which shall be paid by the insurer; but, in the instant case, no such amount has been specified, and, therefore, it is obvious that the insurance company is not liable. There is no denial of the fact that if it is held that the appellant, the owner of the bus, is not liable, then, of course, the Insurance Company, will also not be liable to pay any amount of compensation to the widow of the deceased, respondent No. 1. This position has not been disputed at all; but, in the instant case, I have held that the appellant, the owner of the bus, is liable, and, therefore, the liability of the Insurance Company is also there. The mere fact that the Claims Tribunal has made the appellant and the respondent No. 4 jointly and separately liable to pay the compensation to the widow, respondent No. 1, is no ground for thinking that the Insurance Company is not at all liable; on the other hand, because there is no separate order specifying that Insurance Company would be liable for that amount clearly goes to indicate when the Court below has made the owner, the driver and the Insurance Company, all the three jointly or separately liable, that the Insurance Company is liable to pay Rs. 3,000/- to the widow of the deceased. It is not disputed by Mr. Bose that the bus was not insured for Rs. 3,000/- at all. The stand taken by the Insurance Company was that the bus was not at all insured with the company and this is the point which was taken in its written statement, but unfortunately the Insurance Company did not contest the application and, therefore, that plea was negatived. I, therefore, hold that the Insurance Company, respondent No. 4, is liable to pay the amount of award to the widow of the deceased along with the appellant, the owner of the bus, the liability inter se being both joint and separate.
13. As regards the second point, the application of the widow respondent No. 1 being barred by limitation against the Insurance Company, respondent No. 4, because the application for adding the Insurance Company a party to the application of the widow was made after the expiry of 60 days on 23.11.1962, I find that the Insurance Company filed its write statement on 12.10.1963 but this specific point of limitation was not pleaded in the written statement at all. Moreover, after filing the written statement, although the application was heard and disposed of on 20.7.1965, and the application was pending before the Claims Tribunal for about three years, the Insurance Company did not appear to contest the application of the widow, respondent No. 1. Herein this Court, as I said before, no appeal has been preferred by the Insurance Company, respondent No. 4, against the award which was definitely against the Insurance Company also. It is only in arguments that Mr. Bose put forward the question of limitation, but I am afraid this objection cannot be allowed to be raised at this appellate stage, when there was no whisper about it in the Court below or in the pleadings of the party and the respondent No. 1 had no opportunity to meet it.
14. Section 22(1) of the old Limitation Act (Act IX of 1908), which governs the present case, as the new Limitation Act, 1963 (Act 36 of 1963) came into force on 1.1.1964, provides that “where, after the institution of a suit a new plaintiff or defendant is substituted or added the suit shall, as regards him, be deemed to have been instituted when he was so made a party.” In view of section 22(1) of the Limitation Act, there is no doubt that the application of the widow as against the Insurance Company respondent No. 4 shall be deemed to have been instituted when he was so made a party and considered in this light the application of the widow applicant would be barred by limitation. Mr. Bose contended that the widow did not make any application as contemplated by section 5 of the Indian Limitation Act, 1908 for condonation of the delay so that the Claims Tribunal could admit the application as against the Insurance Company after the expiry of the period of limitation. But, as before, this point of limitation was never urged nor put in the issues nor the application was resisted by the Insurance Company and, in these circumstances, the question of the widow respondent No. I filing an application under section 5 of the Limitation Act could not arise. For these reasons, in my opinion, the plea of limitation raised in this Court for the first time must be over-ruled.
15. As regards the last point that there was no evidence of negligence of the driver, this question of negligence of the driver was raised by the appellant also and in paragraph 8 of this judgment I have held that on the finding of the Court below it was clear that the occurrence took place due to the negligence of the driver. But that apart, as the deceased was crushed under the wheels of the bus and then removed to hospital where he died the very next day, clearly shows that the negligence could be inferred from the accident itself, as to this case the principle of res ipsa loquitur (“the thing speaks for itself”) would apply. The widow respondent No. 1 was examined in support of her application and she stated that her husband was crushed under the wheels of the bus because of the negligence of Ibrahim, the driver of the bus. The Court below has also observed that it is true that she was not present at the time of the occurrence but she stated in clear terms that her husband (deceased) told her about the occurrence in the hospital. This evidence was accepted by the Court below and, in my opinion, rightly. Therefore, it is not correct to say that there was no evidence of negligence of the driver due to which the deceased lost his life. The objection, therefore, fails.
16. In the result, the appeal fails and is dismissed, but as there is no contest by the applicant, respondent No. 1, there will be no order for costs of this Court.
17. Appeal dismissed.
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