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AMICUS AI
Citation Codes
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Case Number
Advocates
  • N. N. Goswami and A.M. Suri
  • H. R. Sodhi and C. L. Lakhanpal
Judges
  • Falshaw, C.J
  • Grover, J.
Acts
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • N. N. Goswami and A.M. Suri
  • H. R. Sodhi and C. L. Lakhanpal
Judges
  • Falshaw, C.J
  • Grover, J.
Acts
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Smart Summary

Structured Summary of the Opinion (as contained in the provided text)

Factual and Procedural Background

Kartar Singh (respondent) was injured in an accident on 27th November 1958 when he was struck by a truck No. PNE 1478 while standing on the kutcha portion of the Jullundur-Hoshiarpur Road after having got down from his bicycle. He filed an application on 13th May 1959 under section 110-A of the Motor Vehicles Act, 1939, before a Claims Tribunal that had been constituted by notification dated 13th March 1959 with effect from 10th February 1959.

The Claims Tribunal awarded Rs. 8,000 to Kartar Singh. The insurer of the truck (the appellant-company) contested the Tribunal's jurisdiction and other matters; the insurer's application to contest the claim in the name of the assured had been rejected by the Tribunal on the day it was made. The insurer filed First Appeal No. 129 of 1961 challenging the Tribunal's decision and award. Kartar Singh filed First Appeal No. 163 of 1961 seeking enhancement of compensation to Rs. 19,100. A learned Single Judge referred the appeals to a Division Bench for decision.

Legal Issues Presented

  1. Whether the Claims Tribunal had jurisdiction to entertain and decide a claim under section 110-A when the accident took place before the constitution of the Tribunal (i.e., whether a claim filed after constitution but arising from an earlier accident must be litigated in the Civil Courts or in the Claims Tribunal).
  2. Whether the insurance company, by reason of a specific condition in the insurance policy, was entitled to take all defences available to the insured (including those not expressly permitted by the Motor Vehicles Act) when contesting the claim.
  3. Whether the Tribunal erred by failing to frame an issue or give a finding as to negligence on the part of the truck driver, and whether in the absence of such a finding compensation could properly have been awarded.

Arguments of the Parties

Appellant (Insurance Company) — Principal Contentions

  • The Tribunal had no jurisdiction to entertain the claim because the accident occurred on 27th November 1958, before the Tribunal was constituted; accordingly the remedy was to file a suit in the Civil Courts within one year, not to institute a petition under section 110-A more than 60 days after the accident.
  • By virtue of a specific condition in the insurance policy (set out in the judgment), the company was entitled to take all the defences available to the insured and the Tribunal erred in limiting the company's ability to assert such defences.
  • The Tribunal failed to frame any issue or give a finding of negligence on the part of the truck driver; without such a finding, the Tribunal should not have awarded compensation.

Respondent (Kartar Singh) — As Appears in the Opinion

  • The text records that Mr. H.R. Sodhi (for the respondent) strongly contended that a previously cited decision of Mehar Singh J. (referred to in the single judge proceedings) was clearly erroneous and thus urged that the matter be settled by a Division Bench.
  • The respondent also pursued an appeal (F.A.O. 163 of 1961) seeking enhancement of compensation to Rs. 19,100.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mulak Raj v. Northern India Goods Transport Corporation Limited Society. 1961 63 P.L.R 524. Authority relied on by the appellant to support the proposition that the Tribunal had no jurisdiction to entertain claims in respect of accidents that occurred before the constitution of the Tribunal. The Division Bench stated that, although the decision supported the appellant's contention, it could not be accepted as correctly laying down the law and directed that the earlier Single Judge's referral be decided by a Division Bench; ultimately the Court held that Mulak Raj "cannot be held to have laid down the law correctly."
Kumari Sushma Mehta v. Central Provinces Transport Services Ltd. A.I.R 1964 M.P. 133. Holds that section 110-F does not affect the right to file a suit in respect of a cause of action which had accrued before the constitution of the Claims Tribunal; the Civil Court has jurisdiction to entertain such a claim. The Division Bench discussed this decision at length and treated it as reflecting the view that pending suits or causes of action which accrued before constitution raise particular considerations; the Court distinguished the position of pending suits from claims instituted after constitution and used the discussion to analyze and reject the harsh application of non-retrospectivity urged by the appellant.
Khaluma v. Abdul Quadir. A.I.R 1961 M.P. 295. Applied the principle that retrospective operation of legislation which destroys existing rights (including remedies) is disfavoured; relevance to pending actions. The Division Bench cited this case as part of the Madhya Pradesh discussion about retrospective effect and the rule protecting existing remedies, and contrasted that approach with other authorities emphasizing the procedural character of forum changes.
Hatari Tewari v. Mt. Maktula Chaubain. A.I.R 1962 All. 80. Expressed by Sulaiman, A.C.J.: a distinction between a vested right of action (substantive) and the choice of forum (procedural); the legislature may deprive a particular forum of jurisdiction and this affects procedure not the substantive right. The Court relied on these observations to support its conclusion that changing the forum (to the Claims Tribunal) is procedural and does not destroy substantive rights, and therefore does not prevent claims arising before constitution from being pursued in the new forum when instituted after constitution.
United Provinces v. Mt. Atiqa Begum. A.I.R 1941 F.C. 16. Principle that courts are reluctant to give retrospective effect to statutes which deprive persons of rights unless the statute clearly expresses such retrospective intention; discussion focused on pending actions. The Division Bench quoted Sulaiman J.'s statement and used it to emphasize the narrower application of the non-retrospectivity rule to pending actions, distinguishing pending suits from new suits instituted after the change in forum.
Bireswar ??? v. Indu Bhushan Kundu. A.I.R 1843 Cal. 573. Used in the opinion to illustrate that an amending Act that changes the forum for adjudication (without touching substantive rights) is procedural; the case related to the change of forum to a Debt Settlement Board. The Division Bench invoked this case (and Subramania Aiyar) to support the proposition that an amendment which merely changes the tribunal in which disputes are to be decided ordinarily concerns procedure and therefore ousts the original forum.
Subramania Aiyar v. Namasivaya Asari. A.I.R 1918 Mad 162. Used in discussion of whether a change of forum is procedural; the case discusses vested rights to appeals and finality where a trial has begun. The Court relied on the distinction in this case that while the choice of forum is generally procedural, once a trial is pending certain accrued procedural rights (e.g., appeals) are preserved; this supported the view that suits pending at the time of constitution of a new tribunal continue in the ordinary Courts.
Vajechand Ramji v. Nandram Duluram. I.L.R 31 Bom ???. Discussed in the opinion for the proposition that a plaintiff whose action was proceeding in a Court when its jurisdiction is taken away may not have a right to final decision in that Court after jurisdiction is divested. The Division Bench noted this authority to illustrate difficulties arising from applying section 110-F to pending suits, and used it in the broader comparison of authorities on forum change and pending actions.
Shamlal v. Hirachand. I.L.R 10 Bom ???. Quoted for the dictum (Sargent, C.J.) that jurisdiction is a matter of procedure; removal of jurisdiction affects procedure. The Court cited the dictum to support the view that jurisdictional changes are generally procedural and do not necessarily extinguish substantive rights.
Garikapati Veeraya v. N. Subbiah Choudhry & Others. A.I.R 1955 S.C. ???. Holds that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties for the remainder of the suit's career. The Division Bench relied on this rule to reason that suits already instituted before the constitution of a Tribunal preserve procedural appellate rights; hence pending suits should continue in ordinary courts.
British India General Insurance Co., Ltd. v. Captain Itbar Singh. A.I.R 1959 S.C. 133. Explains that the statute (Motor Vehicles Act) creates liability on insurers but confines the right to avoid that liability to grounds specified in the statute; if the insurer defends in the name of the assured, it can urge all defences open to the assured. The Division Bench cited this authority in addressing the insurer's contention: it concluded that where the insurer reserves the right in the policy to take over defence in the name of the insured, the insurer may be able to urge defences open to the insured, and the Tribunal erred in initially debarring the company from taking up all such defences.
Colonial Sugar Refining Co. v. Irving. 1905 A.C. 369. Authority cited for the proposition that a right to trial in a particular forum is a matter of procedural law, not a vested substantive right. The Court invoked this principle to distinguish between substantive rights (not affected) and the procedural change of forum brought about by the amending Act creating Claims Tribunals.

Court's Reasoning and Analysis

The Division Bench proceeded by statutory and doctrinal analysis, focusing on the interplay between substantive rights and procedural remedy when a Claims Tribunal is constituted after an accident has occurred.

  1. Statutory framework: The Court set out the relevant provisions of the Motor Vehicles Act: section 110 (constitution of Claims Tribunals), section 110-A (application for compensation, with sub-section (3) prescribing a 60-day period subject to a proviso allowing condonation of delay for sufficient cause), section 110-B (making of awards), section 110-C (procedure and powers), section 110-D (appeals against Tribunal orders), section 110-E (recovery from insurer as arrears of land revenue), and section 110-F (bar on Civil Court jurisdiction where a Claims Tribunal has been constituted).
  2. Distinction between substance and procedure: The Court examined authoritative statements in several decisions (notably Hatari Tewari and United Provinces v. Atiqa Begum) that distinguish a vested substantive right of action from the choice of forum, which is a matter of procedure. The Court relied on this distinction to reason that the Act's provisions (including the substitution of Claims Tribunals) change the remedy and forum but do not destroy the substantive right to compensation arising from a motor accident.
  3. Application to causes of action arising before constitution: The Court considered two categories: (a) suits already pending when a Tribunal is constituted, and (b) claims (causes of action) that arose before constitution but are instituted after constitution. It concluded that suits pending on the date the Tribunal is constituted "would proceed in the ordinary way in the ordinary Courts" (preserving accrued procedural rights such as appeals), but where a claim is instituted after the Tribunal's constitution—even if the cause arose earlier—the claim must be made in accordance with the procedure prescribed in the Act before the Claims Tribunal and not in the Civil Courts.
  4. On the appellant's jurisdictional submission: The Court rejected the contention that the Tribunal had no jurisdiction in respect of accidents occurring before its constitution when the claim was filed after the Tribunal's constitution. The Division Bench expressly disagreed with the Madhya Pradesh approach (as reflected in the Kumari Sushma Mehta discussion and other decisions relied upon by the appellant) to the extent that those decisions would deprive the Tribunal of jurisdiction in such post-constitution claims. The Court concluded that the legislature intended to substitute a new and specific remedy (Claims Tribunal procedure) for claims which are brought after constitution of the Tribunal.
  5. On limitation concerns: The Court acknowledged the appellant's submission that the statutory period for instituting a suit (one year in Civil Court) could effectively be reduced to 60 days under section 110-A(3) if claimants waited, but it observed that the Tribunal has explicit power to condone delay for sufficient cause and that, barring gross laches, delay would normally be condoned. Thus the limitation argument did not prevail.
  6. On the insurer's right under the policy: The Court examined a specific policy condition permitting the insurer, if it desired, to take over and conduct the defence in the name of the insured and to have full discretion in the conduct of proceedings. It considered British India General Insurance Co. v. Captain Itbar Singh and concluded that the insurer, by virtue of such a condition, could take up defences available to the insured. The Tribunal had initially debarred the company from taking up all such defences and had allowed only a limited cross-examination procedure; the Division Bench found that to be erroneous.
  7. On the third point (absence of finding of negligence): The Court treated this as connected to the insurer's right to defend in the insured's name and observed that the point would require reconsideration by the Tribunal when the matter is decided afresh; the Divisional Court did not decide it on the present record.
  8. Conclusion of legal analysis: For the reasons given (procedural/substantive distinction, statutory scheme, and the Tribunal's power to condone delay), the Court held that the Tribunal did have jurisdiction to entertain the application filed by Kartar Singh after its constitution; however, because of the Tribunal's procedural errors—chiefly in debarring the insurer from asserting defences available to the insured—the appeals required a fresh decision by the Tribunal.

Holding and Implications

Holding: The Division Bench allowed both appeals and set aside the award made by the Claims Tribunal. The case was remanded to the Claims Tribunal for fresh decision in accordance with law; the parties were directed to appear before the Tribunal on 5th October, 1904 (as recorded in the text). There was no order as to costs in the High Court. The judgment records that Falshaw, C.J. agreed and concludes with "Appeals allowed."

Direct Consequences for the Parties

  • The Tribunal's award of Rs. 8,000 in favour of Kartar Singh was set aside by the Division Bench.
  • The matter is remanded to the Claims Tribunal for rehearing and fresh decision "in accordance with law", with directions that the parties appear on the date specified in the text.
  • The insurer's contention that it should be permitted to take over and conduct the defence in the name of the insured (as per the policy condition) was accepted in principle by the Court insofar as the Tribunal had improperly debarred the company from taking up all defences available to the insured; this procedural error is to be corrected on remand.
  • No order as to costs was made by the High Court.

Broader Implications Noted in the Opinion

The Court engaged in an explicit analysis of the distinction between substantive rights and procedural forum choice and rejected the interpretation that the constitution of a Claims Tribunal necessarily deprived claimants (who institute claims after constitution) of access to the Tribunal. The Division Bench also expressly stated that the decision in Mulak Raj "cannot be held to have laid down the law correctly." The opinion does not state that it is attempting to lay down a binding new principle beyond its application to the appeals before it; it confines its conclusions to the statutory interpretation and the need for a fresh hearing by the Tribunal.

This summary is derived exclusively from the text of the provided opinion. No information has been invented or inferred beyond what is present in that text. Where the original contained typographical or unclear elements (e.g., question marks or unusual date), those elements have been reproduced only to the extent they appear in the opinion and have not been corrected or amended.

Show full summary ...

    Unique Motor And General Insurance Co. Ltd., Bombay v. Kartar Singh And Another

    D.K Mahajan, J.:— This order will dispose of First Appeals from Ordere Nos. 129 and 163 of 1961, under section 110(D) of the Motor Vehicles Act against the award of the Claims Tribunal granting a sum of Rs. 8,000/- to the respondent, Kartar Singh. The accident in which the injuries resulted to the respondent took place on the 27th of November, 1958. At that time there was no tribunal constituted under the Act. The tribunal was constituted by a notification dated the 13th of March, 1958, with effect from the 10th of February, 1959. The application was filed before the tribunal on the 13th of May, 1959, that is, beyond sixty days of the date of the accident. This period of limitation is provided under section 110A(3). The Insurance Company made an application that it be permitted to contest the claim in the name of the assured. This application was rejected the same day it was made. Thereafter the award for Rs. 8,000/- followed. Hence the present appeals.

    2. The contentions raised are that the tribunal had no jurisdiction to entertain the claim and for this reliance is placed on a decision in Mulak Raj v. Northern India Goods Transport Corporation Limited Society . 1961 63 P.L.R 524.. It is no doubt true that this decision supports the contention of the learned counsel, but in view of the fact that no Letters Patent Appeal lies against my decision and also that the amount involved is fairly heavy and this question is frequently arising, it will be proper that this case is settled by a Division Bench because Mr. H.R Sodhi, learned counsel for the respondent, vehemently contends that the division of Mehar Singh J. already referred to is clearly erroneous. I would, therefore, direct that the papers of this appeal be laid before my Lord the Chief Justice for constituting a Division Bench to decide this appeal.

    3. As the decree-holder has not been paid the compensation it will be proper that this matter is settled at a very early date.

    A.M Suri and N.N Goswami, for the Appellant.

    H.R Sodhi and C.L Lakhanpal, for the Respondents.

    JUDGMENT OF THE DIVISION BENCH

    4. Grover, J.:— This judgment will dispose of First Appeal from Orders Nos. 129 of 1961 and 163 of 1961, which have been referred by a learned Single Judge for decision by a Division Bench in view of the nature of the points involved.

    5. On 27th November, 1958 Kartar Singh, who was returning from his office at Jullundur to his village Nangal Shama on the Jullundur-Hoshiarpur Road, was struck down by a truck No. PNE 1478 while he had got down from his bicycle and was standing on the kutcha portion of the road. He received several injuries and later on filed an application on 13th May 1959 under section 110-A of the Motor Vehicles Act, 1939 (hereinafter to be called the Act) before a Tribunal which was constituted for the first time by a notification dated 13th March 1959 with effect from 10th February 1959. The question of jurisdiction of the Tribunal to entertain and decide that application, apart from other matters, was raised by the appellant-company, which happened to be the insurer of the truck which caused the accident. According to the company, the Tribunal had not been constituted when the accident took place and, therefore, the remedy of the injured person was to file a suit within one year in the Civil Courts and not to institute a petition under section 110-A of the Act after the expiry of a period of 60 days from the date of the accident. It was also pleaded on behalf of the company that such defences, as were open to the owner of the truck, could be taken up by the company. These points were repelled by the Claims Tribunal. The Tribunal held that it was a fit case in which the delay in filing the claim application should be condoned and after giving decision on other issues, an award in the sum of Rs. 8,000/- with costs was made in favour of Kartar Singh.

    6. The company has filed an appeal (F.A.O 129 of 1961) challenging the decision as also the award made by the Tribunal whereas Kartar Singh has filed F.A.O 163 of 1961 claiming enhancement of compensation to Rs. 19,100/-.

    7. In the appeal of the Insurance Company, the following three points have been urged by its learned counsel—

    (1) The accident having taken place on 27th November 1958 long before the constitution of the Tribunal, it had no jurisdiction whatsoever to entertain the claim application and make an award in favour of the claimant;

    (2) the compay is entitled to take all the defences which could be taken by the insurer by virtue of a specific condition in the insurance policy; and

    (3) the Tribunal failed to frame any issue or give a finding that there had been any negligence an the part of the truck driver and in the absence of any such finding, no compensation could have been awarded.

    8. In order to decide the first point, it is necessary to refer to the relevant provisions of the Act, Section 110 provides for the constitution of Motor Accidents Claims Tribunals for such areas as may be specified in the notification by a State Government for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of motor vehicles. Section 110-A deals with the application for compensation. Sub-section (3) of that section is to the effect that no application for compensation shall be entertained unless it is made within 60 days of the occurrence of the accident. However, according to the proviso, the Claims Tribunal may entertain the application alter the expiry of the said period of days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. Section 110-B relates to the making of the award by the Claims Tribunals, section 110-C, to the procedure and powers of such Tribunals, section 110-D, to the appeals which can be filed against the orders of the Tribunal, section 110-E, to the recovery of money awarded by the Claims Tribunal from insurer as arrears of land revenue and section 110-F bars the jurisdiction of the Civil Courts in these words:

    “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 on before the Claims Tribunal in respect of the claims for compensation shall be granted by the Civil Court.”

    In Kumari Sushma Mehta v. Central Provinces Transport Services Ltd. . A.I.R 1964 M.P 133., a Division Bench has held that section 110-F does not affect the right to file a suit in respect of a cause of action which had accrued before the constitution of the Accidents Claims Tribunal. It is the Civil Court that has jurisdiction to entertain a claim for compensation instituted after the constitution of the Tribunal in respect of an accident which had accrued before its constitution and the Tribunal does not have any concurrent jurisdiction to entertain such claims. In this case the accidents with regard to which the claims had been filed had taken place before the constitution of the Tribunal. It may be mentioned that the notification constituting the Tribunal was published on 18th September, 1959 but the Tribunal had been constituted with effect from 7th August, 1959. The Court held that the date of the constitution of the Tribunal was 8th September, 1959. It felt that so far as the question of applicability of an enactment to suits filed before the enactment came into force was concerned, the position was clear that the subsequent law did not affect the pending suits but the position regarding the second point, namely whether the suits could be filed even after the constitution of the Tribunal in respect of causes of action which had arisen prior to its constitution was not so clear. A number of cases were discussed in which the well settled rule had been applied that unless an enactment was either in express terms or by necessary implication retrospective, it could not affect pending actions. The Madhya Pradesh Courts thus came to the conclusion that any enactment which has the effect of destroying an existing right cannot be given retrospective effect without express words and this rule also extends to the remedy which a litigant has for obtaining relief by means of a suit, in the earlier decision in Khaluma v. Abdul Quadir . A.I.R 1961 M.P 295. on which reliance was placed, what was decided was the applicability of the aforesaid rule to a pending action and it was stated in clear terms that the question whether after the constitution of the Claims Tribunal, the Civil Court's jurisdiction to entertain a claim for compensation in respect of an accident taking place before its constitution was taken away, did not arise in that case. The contention that the Tribunal would have concurrent jurisdiction with the Civil Court in such cases was not accepted by the Madhya Pradesh Court.

    9. The view taken in the above case that the inhibition against giving retrospective effect to an enactment without express words when it has the effect of destroying the existing right extends to the remedy also which a litigant has for obtaining relief by means of a suit runs counter to the observations of Sulaiman, A.C.J (as he then was) in Hatari Tewari v. Mt. Maktula Chaubain . A.I.R 1962 All. 80.. In that case a suit for possession had been filed by a Thekadar against his landlord on the allegation that although a lease was granted in 1923 the lessee was never put in possession. According to the plaint, the cause of action had accrued on the date of execution of the lease and also at the end of each year on the dates of the realisation of the lease money. It was not disputed that if the new Tenancy Act were applicable, the suit would be cognizable by the Revenue Court. The Court had no ??? that even it the Thekadar had been wrongly prevented from exercising his right it was open to him to sue in the Revenue Court for the recovery of possession and compensation. Section 230 of the new Tenancy Act created a bar to the jurisdiction of the Civil Court in the matter of a suit in respect of which adequate relief could be obtained by means of a revenue suit. Sulaiman, A.C.J, who delivered the judgment of the Bench, after holding that the case of the Thekadar was covered by the new Act, made the following observations, which are noteworthy:—

    “It seems to us that a right of action is something different from the choice of the forum. There may be a vested right of action when the cause of action has accrued before the old Act has been altered, but there can be no vested right in the choice of a particular forum. If the legislature has thought fit to deprive the Civil Court of its jurisdiction to entertain suits of a particular nature, plaintiff cannot compel the Civil Court to hear his suit merely because his cause of action had accrued before the new Act depriving the Civil Court of its jurisdiction was passed. The choice of forum is a matter of procedure and not a substantive right, and in most cases a new Act would have a retrospective effect so far as the choice of forum is concerned. The analogy of a new Act not affecting a pending action does not apply.”

    He further went on to examine the point that by applying the above rule, the period of limitation would be cut down if the new Act were made applicable. Section 220 of the new Tenancy Act made the period of limitation prescribed for suits by tenants applicable to suits by Thekadars, and in that way a period of six months was prescribed with regard to a suit under section 212 of that Act. The learned Acting C.J made the following observations on this aspect of the matter:—

    “This is however not a point which, arises directly in this case, but it may be pointed out that possibly it cannot be said that there is a vested right in a litigant to wait for a particular period of limitation before instituting his suit.”

    In United Provinces v. Mt. Atiqa Begum . A.I.R 1941 F.C 16., the Bench consisted of Gwyer C.J, Sulaiman and Varadachariar, JJ. Sulaiman J., who delivered a separate judgment, dealt with the law relating to pending actions. He reiterated the well-known principle that Courts have leaned very strongly against applying a new Act to a pending action when the language of the statute does not compel them to do so. It is necessary to refer to the following portion from his judgment at page 37 because the learned counsel for the company has relied on it in support of his proposition:—

    “When a statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed.”

    But the entire discussion in the judgment of Sulaiman J. was confined to the position relevant to pending actions. It is not possible to find any contradiction between the views expressed by Sulaiman J. when he was on the Bench of the Federal Court and those which he expressed in Hazari Tewari's case. The distinction which he made out in the earlier case between the applicability of the rule to pending actions and those which had yet to be instituted was fully justified and must be kept in mind while deciding the present question.

    10. In all authoritative books on interpretation of statutes, it is consistently stated that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practise of the Court even where the alteration which the statute makes, has been disadvantageous to one of the parties. A person has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. But to deprive a suitor in a pending action of an appeal to a superior Tribunal which belonged to him as of right is a very different thing from regulating procedure. (Maxwell on Interpretation of Statutes 11th Edition, pages 21-6-217). In Craies on Statute Law, 6th Edition, at page 400, it is stated that it is perfectly settled that if the Legislature forms a new procedure that instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sned for and enforced according to the new form of procedure. Salmond considers that substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. He gives the illustration in this manner—

    “Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what Courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the Courts fulifil their functions.”

    There is thus a good deal of support for the view expressed in Hazari Tewari's case that a right of action is something different from the choice of the forum. There is certainly a vested right of action when cause of action has accrued but in the present case that right has not been touched or taken away by the provisions contained in the Act to which reference has been made nor does the constitution of a Tribunal for a particular area take away that right. The only result after a Tribunal has been constituted for that area is that applications can be made to it and not to the Civil Courts which by the express words of section 110-F have been debarred from entertaining any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. All that the Legislature has done while substituting the present section 110 as also introducing sections 110-A to 110F in the Act by the amending Act of 1956, is to provide a cheap and speedy remedy for the enforcement of the substantive right of an injured person to claim compensation which he could claim in the form of damages in tort in a Civil Court. Thus no rights are affected and it is only the remedy which has been changed for enforcing that right. If the rule, which has been laid down by Sulaiman, A.C.J in Hazari Tewari's case, contains a correct statement of law, I cannot, with respect, subscribe to the view expressed by the Madhaya Pradesh Court in the Bench decision on which the learned counsel for the company has relied. What I am saying finds support from Bireswar ??? v. Indu Bhushan Kundu . A.I.R 1843 Cal. 573. and Subramania Aiyar v. Namasivaya Asari . A.I.R 1918 Mad 162.. In the Calcutta case while execution of a decree was taking place, an application for relief before the Debt Settlement Board under Bengal Agricultural Debtors Act was filed. That Act was amended, the result of the amendment being that whenever the question of deciding any liability of a debtor arose, the Board was conferred with the jurisdiction to decide it. Notwithstanding the amendment the Munsif decided the question of the decree being a debt against the judgmsnt-debtor. When the matter came before the Bench in an appeal against the judgment of a learned Single Judge who had taken the same view that was taken by the Munsif and the first appellate Court, the contention that was raised was that the amending; Act by necessary implication took away the jurisdiction of the Civil Court to decide the aforesaid question and empowered the Board alone to decide it. After referring to the statement from Craies and Salmond (already extracted) the Bench expressed the view that the amending Act had not touched the substantive rights on the parties and it had simply laid down in what Tribunal the dispute between theme as to whether a particular liability was or was not a debt, was to be determined. It simply changed the forum. The provisions of the amending Act relating to this change of forum were, therefore, limply matters of procedure and the Munsif had no jurisdiction in the matter.

    11. It is pointed out on behalf of the company that if after the Tribunal is constituted, no suits can be filed with regard to the accidents which occurred before its constitution, the result would be that the substantive rights not only of the injured person but also of the insurance company or the insured would be prejudicially affected. In the first place, the limitation of one year which is prescribed for filing a suit for recovery of damages will be cut down to 60 days and secondly, the rights of appeal would be curtailed. Section 110-D of the Act provides for an appeal to the High Court against an award made by a Claims Tribunal but no appeal can be filed if the amount in dispute in appeal is less than two thousand rupees. It is said that if a suit could be instituted and on the assumption that the trial Court awarded a decree for less than two thousand rupees, the right of appeal to the first appellate Court and second appeal to the High Court would be affected. These contentions though specious do not have much substance. I am inclined to agree, with respect, with Sulaiman, A.C.J that a litigant does not have a vested right to wait for a particular period of limitation before instituting his suit. As regards the right of appeal in case the amount in dispute is less than two thousand rupees, that question could possibly arise only where a suit has already been instituted and is pending at the time when, the Tribunal is constituted.

    12. This brings me to another aspect of the matter which may be regarded as creating a difficulty if section 110-F is to be held applicable to those cases where the cause of action arose before the constitution of the Tribunal. It could well be said that logically even those suits which were filed before the Tribunal was constituted but which were pending when the Tribunal came into existence could not be entertained and decided thereafter by the Civil Courts. Indeed, in Vajechand Ramji v. Nandram Duluram . I.L.R 31 Bom ???., the learned Judges thought that the plaintiff in that case whose action was proceeding in the Mamlatdar's Court when its jurisdiction was taken away with regard to that class of suits could not be said to have any right, privilege or obligation to have his case finally decided in that Court. This was in accordance with the dictum of Sargent, C.J in Shamlal v. Hirachand . I.L.R 10 Bom ???. jurisdiction is matter of procedure. In Subramania Aiyar's case . A.I.R 1918 Mad. 162., however, this rule was not applied to a pending case on the ground that the principle of law that a right to prefer an appeal being a vested right could not be affected by legislation and that principle was equally applicable to parties who had acquired a right to a judgment being regarded as final and conclusive. The following passage at page 163 is noteworthy:—

    “Mr. Rajah Aiyar next referred to cases which have held that there is no vested right in having a case tried by a tribunal which has been deprived of jurisdiction by a subsequent enactment. Such a right has been held by Lord Mcnaughten in Colonial Sugar Refining Co. v. Irving . 1905 A.C 369. as pertaining to the province of processful law, and not to vested right, because so long as there has been no trial, no party has any right to say that the mode of trial or the procedure of trying it shall not be changed”.

    The position, therefore, is that there is ordinarily no vested right in a trial in a particular forum or according to a particular procedure but once the trial has begun according to the law which was in force on the date of the institution of the action, certain other vested rights emerge, e.g, the right of appeal to a particular Court or forum. This has now been finally decided in Garikapati Veeraya v. N. Subbiah Choudhry & Others . A.I.R 1955 S.C ???. in which it has been laid down that the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. It had been intended that section 110-F should apply to pending actions also, there would have been a specific provision to that effect in the Act. In my view, therefore, such actions as were pending on the date the Tribunal was constituted would proceed in the ordinary way in the ordinary Courts but if any compensation was sought to be claimed after the constitution of the Tribunal even with regard to an accident which took place before it came into existence, it could be claimed only in accordance with the procedure prescribed in the Act and before the Claims Tribunal and the Civil Courts would have no jurisdiction to entertain any suit in respect of it. For all these reasons, with respect, the decision of a learned Single Judge in Mulak Raj v. Northern India Goods Transport Corporation Ltd.., on which the learned counsel for the company strongly relied cannot be held to have laid down the law correctly.

    13. The learned counsel for the company laid a great deal of emphasis on the difficulties that would arise with regard to applications to be filed before the Claims Tribunal relating to accidents which occurred prior to its constitution in the matter of limitation. It is pointed out that if a claimant waits for a year for which period he was fully entitled to wait for institution of a suit but before the expiry of the year the Tribunal comes into existence the application filed before it would by very much belated as the period prescribed by section 110A is sixty days. This argument loses much force when it is borne in mind that the Tribunal has been given the power to condone the delay and in cases of this nature unless the claimant has been guilty of gross laches or negligence even after the constitution of the Tribunal, the delay would normally be condoned as has been done in the present case. Thus the submissions of the learned counsel for the company on the question of jurisdiction cannot prevail and must be repelled.

    14. On the second point, the learned counsel for the company has invited our attention to condition No. 2 in the Insurance Policy which is as follows:

    “No admission, offer, promise or payment shall be made by the Insured without the written consent of the company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the company may require. If the company shall make any pavment in settlement of any claim and such payments includes any amount not covered by this policy the insured shall repay to the company the amount not so covered.”

    He says that in the presence of the above condition notwithstanding the provisions of section 90(2) of the Act the company was entitled to take all the defences which could be taken by the insured and the Tribunal erred on a misconstruction of the law laid down in British India General Insurance Co., Ltd. v. Captain Itbar Singh . A.I.R 1959 S.C 133. that the company could take up only those pleas which were permissible under section 96(2) of the Act. He has called attention to the following statement at page 1335:—

    “The Statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore to the statute for reasons of hardship. We are further more not convinced that the statute causes any hardship. First, the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does, so all the defences open to the assured can then be urged by him and there is no other defence that he claims to be entitled to urge. He can thus avoid all hardship if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do.”

    The learned counsel for the claimant could not satisfy us how in the presence of the specific condition in the policy and in view of the above observations the company was not entitled to take up all the defences which the insured could take. Our attention was invited to clause 5 of the policy to which the Tribunal also referred, but the condition, which is material, is the one which has been already set out and which was not noticed by the Tribunal at all. The Tribunal followed a somewhat unusual procedure which, it is stated, was done in the interest of justice to allow the company to cross-examine all the witnesses. That, however, was not sufficient because the company was initially debarred by the Tribunal from taking up all the defences which it could in the name of the insured.

    15. The third point is also connected with the second point discussed above and it is wholly unnecessary to say anything about it because that is a matter which will require consideration of the Tribunal when it is decided afresh in accordance with the order which is presently to be made.

    16. In the result, both the appeals are allowed and the award made by the Tribunal is hereby set aside. The case is remanded to the Tribunal for a fresh decision in accordance with law. The parties are directed to appear before the Tribunal on 5th October, 1904. There will be no order as to costs in this Court.

    17. Falshaw, C.J:— I agree

    A.M.S/L.M.S

    Appeals allowed.

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    Unique Motor And General Insurance Co. Ltd., Bombay v. Kartar Singh And Another
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