First Appeal No. 84 of 1990

24th April, 1995

Petitioner Counsel: Mr. J.E. COELHO PEREIRA, Senior Advocate with Mr. J. GODINHO

Cases Cited:
AIR 1991 S.C. 2156 [Para 3]

JUDGMENT

JUDGMENT : This appeal is directed against the Order of the learned Presiding Officer of the Motor Accident Claims Tribunal, South Goa, Margao, dated April 10, 1990 in Miscellaneous Application No.121/89 attached to a claim Petition filed by the appellant whereby the learned Presiding Officer has dismissed the said application for condonation of delay, in view of the provisions contained in Section 166(3) of the Motor Vehicles Act, 1988.

2. The case of the appellant is that on November 7, 1987, he met with an accident when a truck bearing no. GDU 4718 dashed against the side of the bus bearing no.GDS 1994 in which the appellant was travelling, as a result whereof his elbow was seriously damaged. The appellant suffered a compound fracture of the right elbow and he was operated on twice and unable to straighten his hand in any manner.

A criminal case was registered by the Vasco da Gama Police and some months after the accident the appellant started making inquiries as to what action had been taken or the Police were contemplating to take against the respondent no.1 for rash and negligent driving. The appellant was totally ignorant with regard to the time period of limitation within which the petition was to be filed and therefore only on April 15, 1989, filed the petition in the Claims Tribunal, claiming compensation for the injuries sustained in the accident which had caused to him complete disability. This application was filed with a delay of about 11 months and one week and therefore an application for condonation was moved by the appellant explaining the circumstances under which this delay occurred. It appears that this application was opposed by the respondents who have claimed that in the meantime the new Motor Vehicles Act was enacted right from July 1, 1989, whereby the period of limitation prescribed in Section 110-A of the old Act which was of one year was reduced to six months which period could be extended upto 12 months and no further extension would be permissible in terms of Section 166(3) of the new Act. The learned Presiding Officer after hearing the learned counsel for both the parties came to the conclusion that the application for condonation of delay could not be considered in view of the provisions contained in Section 166(3) of the Motor Vehicles Act 1988, which expressly provides that a Tribunal cannot entertain any petition for compensation if filed more than 12 months after the date of the accident. The learned Presiding Officer further held that though the accident took place before the Act came into force still the said provision was to be applied in the case since it contained a procedural law applicable with immediate effect to all pending cases.

3. Mr. Coelho Pareira, learned counsel for the appellant has invited my attention to the fact that admittedly the accident took place during the pendency of the old Act and although the petition was filed beyond the period of limitation established by the old act, however, the same was instituted prior to the coming into force of the new Act. Therefore the cause of action for the purpose of condonation of delay according to the learned counsel should have been considered in terms of the old Act and not of the new one. In support of this submission the learned counsel has drawn my attention to the decision of the Supreme Court in 'Vinod Gurudas Raikar v. National Insurance Co. Ltd. & Ors.' (AIR 1991 S.C. 2156) which has laid down that where the accident took place when the old Motor Vehicles Act was in force, however, the claim petition was filed after the repeal of the old Act and the new Act came into force, the case would be covered by the new Act and delay for a longer period than six months could not be condoned. In the same judgment the Supreme Court has observed that if in a given case the accident had taken place more than a year before the new Act coming into force and the claimant had actually filed his petition while the old Act was in force but after a period of one year, the position could be different. The learned counsel submitted that in view of this pronouncement of the Supreme Court the learned Presiding Officer was bound to consider the appellant's application for condonation in the light of the old Act so much so there was no dispute that the petition had been filed by the appellant prior to the coming into force of the new Act although beyond the period of limitation established by the old Act.

4. There is indeed a very valid point in the submission of the learned counsel. The record shows that the accident which the appellant met occurred on November 7, 1987 and although the period of limitation to file the application for compensation was at that time of one year the appellant moved his application beyond that period of limitation with a delay of about 11 months and prior to the coming into force of the new Act which was applied since July 1, 1989. In this respect there is no dispute that the appellant's petition for compensation alongwith his application for condonation were instituted by him on April 15, 1989. Being so, the ratio of this judgment of the Supreme Court is entirely covering the case of the appellant and on this ground alone the appeal is to succeed. I have considered the circumstances of the case as pleaded by the appellant in this appeal and which have been made out by him before the Tribunal. I am satisfied that the grounds advanced by the appellant are to be accepted in the facts and circumstances of the case.

5. This being the position, in my view there is no need to remand the matter to the Motor Accident claims Tribunal to decide the case of condonation and therefore the appeal is allowed and the delay accordingly condoned. The learned Claims Tribunal is directed to register the Claim Petition of the appellant and proceed with the matter as per the law as expeditiously as possible in view of the fact that the accident occurred somewhere in the year 1987.

6. The appeal is allowed with however, no order as to costs.

Appeal allowed.