Bhaskar Bhikaji Thakur vs Chhotelal Rai and Others

The Petitioner has preferred a claim u/s 110-A of the Motor Vehicles Act, 1939, before the Motor Accidents Claims Tribunal, Jabalpur (Respondent No. 4). As the application was beyond 60 days of the occurrence of accident, the Petitioner has also applied for condonation of delay. The Respondent No. 4, before deciding the question of condonation of delay, desired to issue notice to the opposite party to show cause why the delay should not be condoned. The Petitioner objected to this procedure on the ground that the question of condonation of delay was a matter between the Petitioner and the Claims Tribunal and that the opposite party had no say in the matter. That objection was overruled by the Respondent No. 4 by its order dated the 21st December 1964, and notices have been issued to the opposite party. The present petition under Article 227 of the Constitution is directed against the above-said order.

In order to appreciate the contentions of the parties it is necessary to refer to some of the provisions of the Motor Vehicles Act and the Rules framed thereunder. Sub-section (3) of Section 110-A of the Motor Vehicles Act provides that no application for compensation under this section shall be entertained unless it is made within sixty days of the occurrence of the accident. The proviso to the said Sub-section says that the Claims Tribunal may entertain the application after the expiry of the said period of sixty days, if it is satisfied that the applicant was prevented by sufficient cause for making the application in time. Both in Sub-section (3) and the proviso thereunder it may be noted that the expression used is "entertain". u/s 110-B, on receipt of an application for compensation made u/s 110-A, the Claims Tribunal after giving the parties an opportunity of being heard, is required to hold an inquiry into the claim and is authorised to make an award determining the amount of compensation. Section 110-C provides that in holding any inquiry into the claim u/s 110-B, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. The State Government has framed rules styled as Madhya Pradesh Motor Accidents Claims Tribunal Rules, 1958. The relevant rules are Rules 5, 6 and 7 which are extracted below:

Summary dismissal of application.

(1) On receipt of the application under Rule 3 the Claims Tribunal may reject the application on any of the following grounds:

(i) that the application has not been made by a person competent to do so u/s 110-A ;

(ii) that it is not made within the time prescribed under Sub-section (3) of Section 110-A;

(iii) that it is not properly stamped ;

(iv) that it is not duly signed and verified as required by Rule 3.

(2) The rejection of application under Sub-rule (1) shall not be a bar for presentation of a fresh application with respect to the same matter.

(3) If the application is not rejected under Sub-rule (1) the Claims Tribunal may examine the applicant on oath and if as a result of such examination it is of the opinion that no prima facie case has been made out for compensation, it may for reasons to be recorded in writing summarily dismiss the application.

(4) The substance of any examination made under Sub-rule (3) shall be recorded in the manner provided for the recording of evidence in Rule 19.

Preliminary inquiry into applications -If the application is not dismissed under Rule 5, the Claims Tribunal may, for reasons to be recorded, call upon the applicant to produce evidence in support of the application before calling upon any other party, and if upon considering such evidence the Claims Tribunal is of opinion that there is no case for the compensation claimed, it may dismiss the application with a brief statement of its reasons for so doing.

Notice to opposite party-

(1) If the Claims Tribunal does not dismiss the application under Rule 5 or 6, it shall issue notice to the party from whom the applicant claims relief (hereinafter referred to as the opposite party) to show cause against the application on a date of hearing to be specified therein which shall not be less than 30 days from the date of receipt of the notice.

Such notice shall be accompanied by a copy of the application.

(2) If the opposite party does not appear on the date specified in the notice or appears and admits the claim, the Claims Tribunal shall forthwith proceed to dispose of the application.

(3) If the apposite party contests the claim, it may file a written statement dealing with the claim raised in the application along with such documents on which he relies, on or before the date of hearing and such written statement and documents shall form part of the record. If no written statement is filed, the Tribunal shall proceed to examine him upon the claim and shall reduce the result of the examination to writing.

(4) No document which is not produced by the opposite party on the first hearing shall, without the sanction of the Claims Tribunal, be received in evidence on behalf of that party.

The contention of Mr. J.V. Jakatdar learned Counsel of the Petitioner, is that before notice is issued under Rule 7 to the opposite party'' it is the duty of the Claims Tribunal under rules 5 or 6 to determine as to whether the claim has been made within the time prescribed under Sub-Section 3 of Section 110-A of the Motor Vehicles Act and whether the claim is otherwise competent and that a prima facie case has been made out. The authority to decide as to whether the claim is within time or not also includes the authority to decide whether the delay should be condoned. Mr. Jakatdar urges that till the stage the Claims Tribunal decides the matter envisaged under rules 5 and 6 the opposite party does not come in the picture and the matter is one between the Petitioner and the Claims Tribunal. Mr. Jakatdar has sought support for this proposition from the decision of the Supreme Court in Dinabandhu Sahu Vs. Jadumoni Mangaraj and Others, and from the decision of the Calcutta High Court in Shib Krishna Das Vs. Panchanan Ganguly and Others, .

From the provisions of Section 110-A of the Motor Vehicles Act and the rules, extracted above, it is clear that before the claim is entertained by the Claims Tribunal, the Claims Tribunal is required to be prima facie satisfied that the claim was made within the time prescribed or that it was a fit case wherein the delay should be condoned. The expression "entertained" used in Sub-section (3) of Section 110-A indicates something more than mere receipt or registration of the proceedings before the Claims Tribunal. The word "entertain" means to admit for consideration. When a suit or a proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law, it must be regarded as entertaining the suit or proceeding no matter whatever the ultimate decision might be. The inability to entertain a suit means no inability to grant relief to the party but inability to give a trial at all. (see Nakul Chandra v. Shyamapada AIR 1045 Cal. 381). It is thus plain that when the Claims Tribunal is taking the preliminary decision as to whether the claim should be entertained or not the opposite party does not come in the picture. The contention of the Petitioner that at that stage there was no necessity of issuing any notice to the opposite party appears to be well founded.

Mr. Jakatdar is not, however, satisfied with what we have said above. According to him, the decision on the question of limitation once given by the Claims Tribunal under Rule 5 is not open to challenge subsequently at the instance of the opposite party. For the proposition he relies on the observations of the Supreme Court in Dinabandhu Sahu''s Case (Supra). In that case, the election petition was presented to the Election Commissioner late. In exercise of powers u/s 85 of the Representation of the People Act, 1951, the Election Commission condoned the delay and appointed an Election Tribunal for decision of the election petition. Before the Election Tribunal it was urged by the opposite party that as the petition was presented out of time, the Tribunal ought to dismiss the election petition as not maintainable. The contention was over-ruled and the Election Tribunal proceeded to hear the petition on merits. In this context, their Lordships of the Supreme Court observed:

We are not impressed by this contention. As was pointed out by this Court in Jagan Nath Vs. Jaswant Singh and Others, the rights under litigation in these proceedings are not common law rights but rights which owe their existence to statutes, and the extent of those rights must be determined by reference to the statutes which create them. The proviso to Section 85 does not contemplate the Election Commission giving to the Respondent notice of the petition for condonation of the delay, or the holding of an enquiry as to the sufficiency of the grounds in his presence before passing an order under it. The policy underlying the provision is to treat the question of delay as one between the Election Commission and the Petitioner, and to make the decision of the Election Commission on the question final and not open to question at any later stage of the proceedings. u/s 90(4) of the Act, when the petition does not comply with the requirements of Section 81, Section 83 or Section 117, the Election Tribunal has a discretion either to dismiss it or not, "notwithstanding anything contained in Section 85." The scope of the power conferred on the Election Tribunal u/s 90(4) is that it overrides the power conferred on the Election Commission u/s 85 to dismiss the petition. It does not extend further and include a power in the Election Tribunal to review any order passed by the Election Commission u/s 85 of the Act. The words of Section 90(4) are, it should be marked, "notwithstanding anything contained in Section 85" and not "notwithstanding anything contained in Section 85 or any order passed thereunder." An order of the Election Commission u/s 85 dismissing a petition as barred will, under the scheme of the Act, be final, and the same result must follow u/s 90(4) when the order is one excusing the delay. Section 90 (4) will be attracted only when the Election Commission passes the petition on'' to the Tribunal without passing any order u/s 85. If the Election Commission can thus pass a final order condoning delay without notice to the Respondent, there is no reason why it should not pass such an order Suo motu.

From the decision of the Supreme Court it is clear that under the provisions of the Representation of the People Act, the decision of the Election Commission is final and is not open to challenge before the Election Tribunal. That is not the case here. It is no doubt true that under rules 5 or 6 the Claims Tribunal is required to be satisfied prima facie that the claim is within time and that there is a prima facie case. That does not, however, preclude the opposite party, when it is given a notice under Rule 7, from raising all defences available. The order of the Claims Tribunal under rules 5 and 6 is not made final and it is also open to challenge in appeal. The decision of the Supreme Court is thus distinguishable and is not of any assistance to the Petitioner.

In the Calcutta case, Shib Krishna v. Panchanana (supra), it has been held that the first duty of the Court before which an application under Order 44, Rule 1, CPC is presented is to fix a date for the hearing of the application under the proviso to Order 44, Rule 1, (as it stood before amendment) and to satisfy itself after perusing the application and the judgment and the decree sought to be appealed from, whether the decree is contrary to law or is otherwise erroneous or unjust and that it is only after the Court is satisfied that the decree under appeal satisfied the conditions of the proviso to Order 44, Rule 1 of the CPC that notice is to be issued. It was, however, held in that case that the tentative satisfaction of the Court is open to challenge at the time of final hearing. It is thus clear that though at the admission stage of the application under Order 44, Rule 1, it is not necessary to issue notice to the other side, that decision is not final. The Calcutta case also does not support the contention of Mr. Jakatdar that the opposite party has no say in the matter of limitation at any stage of the enquiry.

Under the provisions of the Motor Vehicles Act, referred to above, and the rules made thereunder, it is quite clear that it is obligatory on the Claims Tribunal to decide the question of limitation prima facie before notice is issued to the other side. The decision of the Privy Council in Sunderbai v. Collector of Belgaum AIR 1918 P.C. 135 relied on by the Respondent No. 4, which deals with the procedure to be followed u/s 5 of the Limitation Act can be of no assistance. In Mithoolal v. Jamna Pd. ILR 9 Luc 193 ; Raza, J. held:

what constitutes ''sufficient cause'' cannot be laid down by hard and fast rules. It must be determined by a reference to all the circumstances of each particular case. A court may give a liberal construction to the words ''sufficient cause'' but the interpretation must be in accordance with judicial principles and with due regard to the Respondent''s side of the question.

It is clear from these observations that the Respondent''s side of the matter is required to be considering when the delay in filing the application is condoned. This postulates the right in the Respondent to urge his own side when the appropriate opportunity is afforded to him. We are, therefore, of the opinion that at the initial stage when the Claims Tribunal entertains the application it has tentatively to give its decision on the question of sufficient cause being shown and at that stage the opposite party is not entitled to any say in the matter. It must, however, be made clear that the tentative decision of the Claims Tribunal is not final and is open to challenge by the opposite party when it is given notice.

Mr. R.P. Verma and Mr. V.S. Dabir, who appeared for Respondents I and 3 respectively, supported the order of the Claims Tribunal on the same reasoning on which the order is based. Mr. Gulab Gupta, learned Counsel for Respondent No. 2 however, urged that u/s 110-C of the Motor Vehicles Act the Claims Tribunal is authorised to follow its own procedure in the absence of any rules made by the State Government and as Rules 5 and 6 do not indicate as to what is to be done when the question of condonation of delay comes up before the Claims Tribunal, the procedure followed by the Claims Tribunal cannot be questioned. Section 110-C speaks about the procedure to be followed by the Claims Tribunal during the enquiry. That stage is after the notices are issued. Rules 5 and 6 specifically lay down as to what procedure should be followed by the Claims Tribunal before the notice is issued. The contention of Mr. Gupta is, therefore, without substance.

In the result, the petition is allowed. The order dated the 21st December 1964, passed by the Claims Tribunal (Respondent No. 4) is quashed and the Respondent No. 4 is directed to decide the question of condonation of delay according to law in the light of the observations made above. It may, however, be made clear that the decision reached by the Claims Tribunal at this stage will not be binding on the opposite parties and they will be free to challenge it after the notices under Rule 7 are issued to them. In the circumstances of the case, we make no order as to costs. The outstanding amount of the security deposit shall be refunded to the Petitioner.