Purohit & Company v. Khatoonbe

Z.A. Haq, J.:— Heard Shri S.V. Bhutada, the learned advocate for the petitioner and Shri Asghar Hussain, the learned advocate for the respondents.

2. The respondents have filed the claim petition under the provisions of Section 166 of the Motor Vehicles Act. The claim of the respondents is that their daughter died in an accident which had taken place on 2 February, 1977. The claim petition has been filed on or about 23 February, 2005.

3. The respondents filed an application praying for condonation of delay in fling the claim petition. The petitioner filed his reply and opposed the application filed by the respondents praying for condonation of delay. The respondents did not press the application filed by them praying for condonation of delay on the ground that as per the amended Motor Vehicles Act, limitation is not prescribed for filing the claim petition and, therefore, there is no question of delay in filing the claim petition.

4. The petitioner then filed an application (Exh. No. 28) praying that the claim petition filed by the respondents be dismissed. According to the petitioner, the claim petition is filed after about 28 years and it is barred by limitation as at the relevant time i.e. in 1977, the Motor Vehicles Act, 1939 was in force and as per the Section 110A of the Motor Vehicles Act, 1939, the limitation for filing the claim petition was six months.

5. The learned advocate for the petitioner has submitted that the claim petition has not been filed within six months, therefore, the claim of the respondents cannot be entertained and dead claim cannot be revived. In support of this submission, Shri Bhutada, the learned advocate has relied on the judgment given by the Hon'ble Supreme Court in the case of New India Insurance Co. Ltd v. Smt Shanti Misra, Adult reported in AIR 1976 SC 237. It is further submitted that the claim made by the respondents suffers from unexplained delay and latches and the Tribunal has not adverted to these aspects and has rejected the application filed by the petitioner without considering the challenges raised by the petitioner.

6. Shri Asghar Hussain, the learned advocate for the respondents has submitted that the order passed by the Claims Tribunal rejecting the application filed by the petitioner is proper. It is submitted that after the amendment to the Motor Vehicles Act, 1988, limitation is not prescribed for filing the claim petition and this issue is decided by the Hon'ble Supreme Court in the case of Dhannalal v. D.P. Vijayvargiya reported in 1996 (9) CLJ 150 and the judgment given by the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. v. C. Padma reported in 2004 (1) T.A.C. 10 (S.C.).

7. After considering the submissions made by the learned advocates for the respective parties, I find that the point of limitation as raised by the petitioner cannot be considered, in view of the ratio laid down by the Hon'ble Supreme Court in the case of Dhannalal v. D.P. Vijayvargiya (cited supra) and in the case of New India Assurance Co. Ltd. v. C. Padma (cited supra). Shri Bhutada, the learned advocate has submitted that the judgment given in the case of New India Insurance Co. Ltd v. Smt Shanti Misra, Adult (cited supra) is by a Bench of three Hon'ble Judges and the proposition of law laid down in paragraph no. 7(2) of the judgment that dead remedy cannot be revived by new law of limitation, is required to be considered. In my view, the ratio of the judgment given in the case of New India Insurance Co. Ltd v. Smt Shanti Misra, Adult (cited supra) is different and the ratio of the judgments given in the case of Dhannalal v. D.P. Vijayvargiya (cited supra) and New India Assurance Co. Ltd. v. C. Padma (cited supra) covers the issues raised in the present matter. I do not find any illegality in the order passed by the Tribunal rejecting the application filed by the petitioner for dismissal of the claim petition on the ground that the claim petition is filed beyond the prescribed period of limitation.

8. As far as the other contentions of the petitioner are concerned i.e. about the delay and latches, the claim petition cannot be dismissed on such grounds only on the basis of the oral submissions made by the parties. The matter is required to be decided on merits after recording of evidence.

9. In view of the above, I see no reason to interfere with the impugned order. The petition is dismissed. In the circumstances, the parties to bear their own costs.

10. The parties shall appear before the Motor Accident Claims Tribunal, Nagpur on 14 September, 2015 at 11 a.m. and abide by the further orders of the Tribunal. As the claim petition is of 2005, the Tribunal is requested to dispose the claim petition within six months.