Equivalent citations: 1996 ACJ 430

Bench: K Swami, D Raju

Bangaru And Ors. vs Theeran Chinnamalai Transport Corporation on 27/4/1995
JUDGMENT
K.A. Swami, C.J. and D. Raju, J.
1. The above Letters Patent Appeal was directed against the judgment of a learned single Judge of this court,
dated 29.7.1993 in C.M.A. No. 458 of 1992, wherein it has been held rejecting the appeal in A.A.O. No. 458
of 1992, that there was no scope for condoning the delay of eighteen months in filing a claim petition under
the provisions of the Motor Vehicles Act.
2. The first appellant is the mother of appellant Nos. 2 to 4, and wife of late Chinnapomma Naicken and
appellant Nos. 2 to 4 who are the minors are the sons and daughter of late Chinnapomma Naicken and the first
appellant. He was stated to have been aged about 38 years at the time of his death and was stated to have been
travelling at about 5.30 a.m. on 12.2.1989 by a bicycle towards Namakkal. At that time, the bus bearing
registration No. TMN 5972 belonging to the respondent Transport Corporation, which is a public undertaking,
was said to have knocked down the deceased from his cycle and he was stated to have died on the spot on
account of the rash and negligent driving of the driver of the vehicle. The accident was stated to have occurred
at a place on Namakkal-Salem Main Road near P.S.K. House at Salem Road. The deceased was stated to have
been earning a sum of Rs. 2,000/- per month and was also said to be the only bread-winner of the family and
the death left the family in a lurch. The appellants were stated to have filed a petition under Section 110-A of
the Motor Vehicles Act read with Rule 3 of the Motor Accidents Claims Tribunal Rules before the Motor
Accidents Claims Tribunal (District Judge, Salem) claiming a compensation of Rs. 1,50,000/- from the
respondent Corporation. Before the court below, it was submitted that the deceased would have lived for
another thirty-two years and that the driver of the vehicle was facing trial before the court of the Judicial
Magistrate, Namakkal, for an offence under Section 304A of Indian Penal Code.
3. The claim petition in question was indisputably presented before the Tribunal on 12.11.1990 and, therefore,
has moved the court by filing I.A. No. 1495 of 1990 seeking for condonation of delay of 458 days in filing the
claim petition invoking the powers of the court under Section 5 of the Limitation Act and read with Section
151 of the Code of Civil Procedure. By way of explaining the reason for the delay, it has been stated in the
court below that the appellants were stunned by the serious calamity in the family and being an uneducated
lady with no knowledge of the intricacies of law and the difficulties encountered even for the bare livelihood,
the claim petition could not be filed within time and that if the delay in filing the claim petition is not
condoned, irreparable loss and damage would be caused to the appellants and that they will be seriously
prejudiced. The respondent Corporation appears to have filed a counter-affidavit opposing the claim for
compensation contending that the reasons assigned are not sufficient in law to justify the condonation and that
the appellants deliberately failed to present the claim petition in time and that, therefore, there is no scope or
justification for condoning the delay. The learned District Judge, Salem, after considering the submissions of
learned counsel appearing on either side has chosen to reject the application on the ground that under the
provisions of the Motor Vehicles Act, 1988, particularly under Section 166(3) of the said Act, there is no
scope for condoning the delay in filing a claim petition after a period beyond six months, in addition to the
initial period of limitation of six months prescribed and, therefore, the powers under Section 5 of the
Limitation Act cannot be invoked. It is seen from the order of the learned District Judge that as against the
plea of the learned counsel for the claimants before the trial court that the powers under Section 5 of the
Limitation Act cannot be invoked for condonation of the period of delay of more than one year from the date
of the accident. Learned counsel for the claimant appears to have contended that though the Motor Vehicles
Act is a special enactment inasmuch as the applicability of Section 5 of the Limitation Act has not been
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excluded the court below was entitled to condone the delay even for an unlimited period, provided sufficient
cause was shown. The said submission of the learned counsel for the claimants did not find favour of
acceptance by the trial court. Hence, the claim petition came to be rejected with the rejection of LA. No. 1495
of 1990 on 19.4.1991 declining the condonation of delay, as prayed for. Aggrieved, the appellants have filed
an appeal before this court under the provisions of the Motor Vehicles Act.. The said appeal also came to be
rejected by a learned single Judge of this court by applying the ratio of the decision of the Supreme Court in
Vinod Gurudas Raikar v. National Insurance Co. Ltd. . Hence the above appeal under Clause 15 of the
Letters Patent.
4. Mr. P. Mani, learned counsel for the appellants, while disputing the applicability of the Motor Vehicles Act,
1988, to the case on hand which came into force on 1.7.1989 in respect of the accident in question which
occurred on 12.2.1989 contended that the learned single Judge as also the learned trial Judge were in error in
holding that the provision of Section 5 of the Limitation Act is not applicable to the case on hand and that the
ratio of the decision of the Supreme Court relied upon by learned single Judge will not apply to the case on
hand, wherein the claim relates also to minors. It was contended that the minor claimants are entitled to avail
of the benefit conferred under Section 5 of the Limitation Act and the claim petition could be filed through
their lawful guardian even after the expiry of the prescribed period of limitation and before the minors attain
the age of majority without being impleaded by the bar of limitation. The plea that the provisions of the Motor
Vehicles Act, 1988, do not have the effect of excluding the applicability of the provisions contained in Section
5 of the Limitation Act has been reiterated by placing reliance upon also the provisions of Section 217(4) of
the Motor Vehicles Act, 1988, read with Section 6(8) of the General Clauses Act, 1897 and 1tion 29(2) of the
Limitation Act, 1963.
5. Learned counsel for the respondent Corporation adopted the reasoning of the learned trial Judge and of the
learned single Judge reliance has been placed on several judicial pronouncements before us in support of the
claim made on either side and it would be useful as also necessary to advert to the same hereinafter before
taking up for actual consideration the points raised before us.
6. In Krishna Raju v. Ayyappa Chettiar (1955) 2 MLJ 456, a learned single Judge of this court had considered
the scope of Section 6 of the Limitation Act (IX of 1908) in a case wherein the advocate guardian appointed
by the District Court for two minors obtained a pronote from the two debtors of the minors' estate and later
filed a suit to recover the money due under the same after the expiry of three years. The trial court appears to
have dismissed the suit as time-barred, holding that the pronote was in favour of the guardian solely, though
described in it as guardian of the minors and that, therefore, the benefit of Section 6 of the Limitation Act
could not be claimed by the minors. It was held in that context that although the advocate guardian was
entitled in law to file a suit at any time before the minors attain majority. It would be most anomalous to hold
that it would be open to a minor to sue after attaining majority, availing of Section 6 of the Limitation Act, but
at the same time deny the guardian's right to sue on behalf of the minor before he attains majority and more
than three years from the date of the pronote.
7. In Bishan Dass v. Ramesh 1971 ACJ 203 (Delhi), a learned single Judge of Delhi High Court, while
dealing with a case where the deceased left a widow and two minor children and the children filed an
application for compensation after limitation prescribed claiming extension of time on the ground of minority,
invoking Section 6 of the Limitation Act, it was held that each of the minors had separate cause of action and
each one of them was entitled to separate compensation by virtue of Section 110-B of the Motor Vehicles Act,
1939 and that the claim being distinct and separate and the mother being not competent to give a valid
discharge in respect of the compensation payable to the minor children, the provisions of Section 7 of the
Limitation Act cannot be applied and in view of Section 6 of the Act, the limitation would not run and,
therefore, the claim cannot be considered to be barred by limitation.
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8. In Amalgamated Coal Fields Ltd. v. Chhotibai 1973 ACJ 365 (MP), a Division Bench of the Madhya
Pradesh High Court had an occasion to consider and deal with the claim, of a widow and her five minor
daughters under the Fatal Accidents Act, 1855. The accident involved in the said case was on 2.6.1962 and the
suit came to be instituted on 27.8.1963 after a year of his death. While considering the issue in the context of
Article 21 and Section 7 of the Limitation Act, it was held that the heirs of the deceased are in the position of
co-heirs, or tenants in common, having distinct shares and the widow could not under the Hindu Law give
discharge in her own right in respect of the right of her minor daughters and consequently by virtue of Section
6 of the Limitation Act, the limitation gets extended in favour of the entire body of the claimants who had
joint right to sue.
9. In Pritpal Singh v. New Suraj Trans. Co. (P) Ltd. 1974 ACJ 277 (P&H), a learned single Judge of the said
High Court was concerned with a claim made under the Motor Vehicles Act, 1939, by the sons and daughters
of the deceased, of whom claimant Nos. 1 to 4 were majors and 5 to 7 were the minor children of the
deceased. When an objection was taken to the claim on the plea of limitation, the Tribunal held that the claim
was barred by limitation. On an appeal before the High Court, a learned single Judge of the Punjab and
Haryana High Court held that the application for compensation under the Motor Vehicles Act would be in the
nature of a suit and that having regard to Section 6 of the Limitation Act and in view of the minority, the
benefit of the extended period of limitation would be available to the minor claimants to claim compensation.
10. In Electricity Board, U.P. State v. Sheo Nath Singh , the claim arose under the Fatal Accidents Act, 1855
and a suit was filed by and on behalf of a minor claiming benefit under Section 6 of the Limitation Act. The
trial court rejected the claim as barred by limitation. On appeal, it was held that the right of the wife, husband,
parent and child to recover compensation is not joint but distinct and several one and that, therefore, one of
them cannot give a discharge without the concurrence of the person under disability, on that view, Section 7
of the Limitation Act was held to be not attracted and the provisions of Section 6 of the Limitation Act were
held to save the period of limitation.
11. In Punjabhai Prabhudas and Co. v. Sakinaben Mohamadbhai 1977 ACJ 44 (Gujarat), a Division Bench of
the High Court of Gujarat had an occasion to deal with the claim under Motor Vehicles Act, 1939. In one of
the appeals, the claim was contested on the basis of the bar of limitation. The claim was by and on behalf of
the minors and, therefore, in the view that Section 7 of the Limitation Act would have no application to the
case before them the benefit of extended period of limitation was held to enure to the entire body of the
plaintiffs who had a joint right to sue.
12. In Usha Rani v. Premier Insurance Co. Ltd. AIR 1983 All 27, a Division Bench of the Allahabad High
Court was dealing with a claim from the legal heirs of a victim under the Fatal Accidents Act, 1855 and the
claim was presented beyond the period stipulated therefor by the wife of the deceased and two minor children.
It was held that the mother could not give a valid and legal discharge of the rights and claims of the minor
children and that, therefore, time could not run against the minors till they attain majority. In coming to such
conclusions, reliance was placed on Sections 6 and 7 of the Limitation Act.
13. In Musthafali v. Subair , a Division Bench of the Kerala High Court has dealt with a claim presented by a
minor, represented by the guardian claiming compensation under the Motor Vehicles Act, 1939, which came
to be rejected by the Tribunal on the ground that the application was filed beyond the statutory period
prescribed for filing such a claim. On an appeal therefor before the High Court, the Division Bench of the
Kerala High Court applying the provisions of Section 6 of the Limitation Act held that the claim of a minor,
when presented through the guardian, cannot be rejected on the ground of limitation. In coming to such a
conclusion, the Division Bench of the Kerala High Court not only applied the ratio of some of the decisions
earlier referred to by us, but also on the view that the provisions contained in Sections 4 to 24 of the
Limitation Act are applicable to claims made under the Motor Vehicles Act and if the provision contained in
Section 6 of the Limitation Act is made applicable, there is no question of limitation running against the minor
during his minority. Learned Judges of the Kerala High Court were also of the view that even if Section 6 of
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the Limitation Act is considered to be not applicable the Claims Tribunal had a discretionary power to
condone the delay under the provisions of Section 110-A (3) of the Act, that the Tribunal can entertain an
application, if it is satisfied that the applicant was prevented by sufficient cause from making the application
in time and that, therefore, the question of compensation has got to be dealt with taking a very liberal,
pragmatic and meaningful attitude.
14. In Bhucha Dhana Danger v. Jiviben Madeva Lukhel 1992 ACJ 1093 (Gujarat), a learned single Judge of
the Gujarat High Court, while dealing with a claim petition presented under the Motor Vehicles Act, 1988,
after a delay of about 14 years that the period of limitation prescribed under Section 166(3) would start
running against the minor only after the minor attains majority in view of Section 6 of the Limitation Act and
that, therefore, no exception could be taken to the entertainment of the claim notwithstanding the delay
noticed above.
15. We have carefully considered the submissions of learned counsel appearing on either side. The decision of
Supreme Court reported in Vinod Gurudas Raikar v. National Insurance Co. Ltd. , has finally settled the issue
relating to the applicability of the Motor Vehicles Act, 1988, even to accidents which occurred prior to the
coming into force of the 1988 Act, as long as the claim petition was filed only after the commencement of the
1988 Act. It was also held therein that in view of the stipulation contained in Section 166(3) of the 1988 Act,
there is no scope for any condonation of delay of the period beyond one year of the date of the accident by
having recourse to Section 5 of the Limitation Act. Therefore, the claim petition in the case before us, filed
indisputably after such period of limit, is necessarily time-barred. But, to get over the hurdle of limitation, for
the first time in the appeal before us a plea based upon Section 6 of the Limitation Act, as enabling the minors
to claim an extended period of limitation has been made. In substance, the claim on behalf of the appellants is
that during the subsistence of the minority of appellant Nos. 2 to 4 the period of limitation prescribed does not
commence to run against them and the said position would help the first appellant also to maintain the claim
taking advantage of the minority of the appellant Nos. 2 to 4. This plea based upon the applicability of Section
6 of the Limitation Act is made relying upon Section 29(2) of the Limitation Act, 1963.
16. A reference to some of the statutory provisions relevant for our consideration will be necessary to properly
appreciate the issue raised in this case.
166. Application for compensation.- (1) An application for compensation arising out of an accident of the
nature specified in Sub-section (1) of Section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or 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:
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Provided that where any claim for compensation under Section 140 is made in such application, the
application shall contain separate statement to that effect immediately before the signature of the applican.
(3) No application for such compensation shall be entertained unless it is made within six months of the
occurrence of the accident:
Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six
months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause
from making the application in time.
(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this
Act, the Claims Tribunal may, if it thinks necessary so to do, treat the report as if it were an application for
compensation under this Act.
Newly substituted Sub-section (4) with effect from 14.11.1994:
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section
158 as an application for compensation under this Act.
Section 158(6) of the Act as amended reads thus:
As soon as any information regarding any accident involving death or bodily injury to any person is recorded
or report under this section is completed by a police officer, the officer-in-charge of the police station shall
forward a copy of the same within thirty days from the date of recording of information or, as the case may
be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the
concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt
of such report forward the same to such Claims Tribunal and insurer,
Section 2(b) and (1) of the Limitation Act, 1963, reads as hereinunder:
(b) 'application' includes a petition;
(1) 'suit' does not include an appeal or an application;
Section 6 insofar as it is relevant for our purpose is as hereunder:
6. Legal disability.-(1) Where a person entitled to institute a suit or make an application for the execution of a
decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he
may institute the suit or make the application within the same period after the disability has ceased, as would
otherwise have been allowed from the time specified therefor in the third column of the Schedule.
Section 8 provides that nothing in Section 6 or in Section 7 applies to suits to enforce right of pre-emption, or
shall be deemed to extend, for more than three years from the cessation of the disability or the death of the
person affected thereby, the period of limitation for any suit or application. Section 29(2) reads as follows:
Where any special or local Saw prescribes for any suit, appeal or application a period of limitation different
from the period prescribed by the Schedule the provisions of Section 3 shall apply as if such period were the
period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for
any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24
(inclusive) shall apply only insofar as and to the extent to which, they are not expressly excluded by such
special or local law.
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17. The fact that in respect of even an accident which took place prior to the coming into force of the Motor
Vehicles Act, 1988, which came into force on 1.7.1989 the claim petition has to be filed under the provisions
of the 1988 Act on and after such commencement of the 1988 Act is by now well settled by the decision of the
Supreme Court reported in Vinod Gurudas Raikar v. National Insurance Co. Ltd. . The only question is as to
whether in so filing the claim petition there is room or scope for availing of the benefit of Section 6 of the
Limitation Act, 1963, in respect of the filing of such a claim petition. Sub-section (3) of Section 166 of the
1988 Act, in our view, will have the effect of excluding the applicability of the Limitation Act, 1963, in view
of the specific and definite intention expressed that the claim petition cannot at any rate be permitted to be
filed later than twelve months from the date of the accident. The several decisions relied upon by the learned
counsel for the appellant are distinguishable and will have no application to the case on hand for more than
one reason, in addition to the one referred to above. The decisions of the various Division as well as single
Benches of the other courts had no occasion to consider the impact or consequences of the special provisions
contained in Section 166(3) of the Motor Vehicles Act, 1988, which not only have the effect of excluding the
application of the Limitation Act, 1963, but also do not appear to take into account or advert to the impact of
the proviso to Section 166(1), which obliges a claimant, if all the legal representatives of the deceased had not
joined as claimants in the application for compensation, to make-the application on behalf of or for the benefit
of all the legal representatives of the deceased and also obliges all the legal representatives, who have not
joined as claimants to be made as respondents to the application. The provisions made in the force of proviso
to Sub-section (1) of Section 166 of the Act only go to show that at any rate in cases where all claimants or
legal representatives are not minors, there is no impediment or disability for any one or more of the minor
claimants moving the Claims Tribunal along with one or more major members. Even while making such a
claim in view of the proviso it should be considered to have been made not only for him/them but also for and
on behalf of all the body of legal representatives of the deceased and the adjudication of the compensation
payable has to be for and on behalf of all the legal representatives. Consequently, in our view, at least in a
case like the one before us where the first. appellant/claimant was a major and her claim could have been and
has to be legitimately treated as having been made for all the body of legal representatives of the deceased,
irrespective of the individual disability of any one or the other claimants/ legal representatives, there is no
scope or justification for invoking or applying Section 6 of the Limitation Act. The individual disability of
any one of the claimants is no impediment under the peculiar scheme of things adumbrated in Section 166 of
the Act to make the claim. As a matter of fact with the coming into force of the Motor Vehicles (Amendment)
Act, 1994 (Act 54 of 1994) with effect from 14.11.1994 by virtue of a new Sub-section (4) of Section 166,
there is a mandate or compulsion to the Claims Tribunal itself to treat a report of the accidents necessarily to
be sent to the Tribunal under Section 158(6) of the Act as an application for compensation, unlike the
provisions contained earlier which only gave an option to the Tribunal to do so, if so desired. Therefore, we
are of the view that the appellants at any rate in this case cannot try to invoke to take advantage of or shelter
under Section 6 of the Limitation Act for the simple reason that the first appellant is major and her claim
which ought to be on behalf of all the legal representatives also could have been and ought to be filed within
the stipulation contained in Section 166(3) and also subject to the proviso thereto, not later than twelve
months of the occurrence of the accident.
18. Even that apart, the legal position in case pertaining to the computation of a period of limitation prescribed
by a special law vis-a-vis the general law of limitation appears to be as hereunder:
In Ramana Reddi v. Baku Reddi ILR 37 Mad 186, a Division Bench of this court while dealing with the
question of limitation in the context of Section 48 of the Code of Civil Procedure, 1908, in the case of an
execution application filed after twelve years after decree and the applicability of Section 6 of the Limitation
Act, 1908, that limitation being the result of the statute law no exemption from it can be recognised except
what the statute itself provides. It was also held therein that it would be unnecessary to consider whether the
other general provisions of Limitation Act contained in Sections 4 to 25 would be applicable or not, where the
period of limitation is prescribed by some special Act and not by the general law of limitation. Section 6 has
been held to be expressly limited to cases where the limitation is provided for in the Limitation Act itself. In
elaborately considering the above issue it was also observed that 'we cannot, therefore, uphold the argument
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that there are any fundamental rules of law or justice entitling the appellant to claim that the limitation should
run only from the date of his attaining majority. In Sri Ramamurthi v. Soramma , a Division Bench of Andhra
Pradesh High
Court, in a similar case as the one considered in ILR 37 Mad 186 subscribed to the same view. In Kartic
Chandra v. Bata Krishna Roy AIR 1938 Cal 25, a Division Bench of the Calcutta High Court held that Section
6 of the Limitation Act, 1908, was expressly limited to cases where limitation is prescribed by Schedule I to
the Act and where limitation is provided for by some Act outside the provisions of the Limitation Act, such
limitation is not affected by Section 6 or Section 7 of the Limitation Act.
19. The construction placed by us as above in a case of the nature under our consideration becomes necessary
also to avoid serious anomalies involved in taking a contra view. Even as the matter stands courts can take
judicial notice of the fact that in the last majority of cases even filed within time, it is found difficult to get a
true and proper picture of the accident or the details thereof for effectively adjudicating the claims made
before the Tribunals and if claims are permitted to be filed availing of provisions like Section 6 of the
Limitation Act, 1963, claims may be forthcoming after several years and at times after a decade or two and in
such cases there will hardly be any trace of even documentary evidence available in the shape of records
maintained by the police authorities or criminal court or authorities of the Motor Vehicles Department, leave
alone the question of creditworthiness of oral evidence that may be forthcoming after such long time. It may
also pave way for frivolous, vexatious and astronomical claims too apart from encouraging those who could
avail of Section 6 of the Limitation Act to merely and mercilessly challenge the adjudication properly and
effectively made on an application filed by the guardian of such persons suffering disability or made by the
major members themselves for and on behalf of them and those who were under some disability or others as
visualised under Section 6 of the Limitation Act, 1963. It will also be difficult for those who have to defend
themselves or answer such postponed or delayed claims and place them at great disadvantage. A construction
which would lead to such startling consequences of grave and serious nature which may inevitably lead to
uncertainty and friction undermining the very system of providing for an expeditious and effective remedy
presumably never intended also, dissuade us from subscribing to the too wide proposition laid down in some
of the decisions of the other learned Judges of various other High Courts. We make it clear and confine, at any
rate, our decision to the category of cases before us, wherein the claim petition has been presented
indisputably beyond the period of twelve months from the occurrence of the accident by a claimant who is
also a major joining together with one or more minor claimants. Though the question raised before us in the
form in which it has been argued does not appear to have been presented for consideration before the learned
single Judge, we have considered the same having regard to the importance of the issue and the fact that it is a
pure question of law. We make it clear that this decision will have no application to a case where all the
claimants are minors.
20. For all the reasons stated supra, we do not see any justification to interfere with the orders of the learned
single Judge confirming the order of the learned District Judge, rejecting the claim petition as barred by
limitation. Consequently, the appeal fails and shall stand dismissed, but in the circumstances of the case, there
will be no order as to costs.
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