( 1 ) THIS civil miscellaneous appeal is preferred by the appellantpetitioner being aggrieved by the order passed by the Motor Accidents Claims tribunal, Chittoor at Tirupathi, made in i. A. No. 1094 of 1993 in O. P. No. Nil of 1993, dated 6. 4. 1994, in which the Tribunal below has dismissed the petition filed under section 166 (3) of the Motor vehicles Act for condoning the delay of five months twenty-one days in presenting the claim petition.

( 2 ) THE petitioner in the Tribunal below filed the original petition, claiming compensation for the damages caused to the vehicle in the accident on 2. 6. 1992. As the petition was not filed within the period prescribed under section 166 of the Motor vehicles Act, he filed LA. No. 1094 of 1993 for condoning the delay and the same was dismissed by the Tribunal below.

( 3 ) THE ground mentioned for condoning the delay was that as the petitioner was busy with his business work, by oversight, he could not present the said O. P. in time and the Tribunal held that the said reason cannot be accepted as a sufficient ground and dismissed the petition. Assailing the same, the petitioner has filed the present appeal.

( 4 ) THE learned counsel for the appellant contends that though, in the affidavit, it is mentioned that he was busy with his business work and by oversight, the same could not be submitted in time, that cause is sufficient for non-preferring the petition and even otherwise, during the pendency of the appeal by Act No. 54 of 1994, subsection (3) of section 166, Motor Vehicles act is omitted. In view of such omission, the appeal has to be allowed and the matter has to be remitted back to the lower court by taking note of subsequent events and as the appeal is only a continuation of a suit, the court has to take note of the amendment and the matter may be remitted back to the lower court for making an enquiry into the claim.

( 5 ) ON the other hand Mr. Sivaiah, the learned Standing Counsel for the respondent contended that the appeal is not maintainable against an order passed under section 5 of the Limitation Act and the same is not an award within the meaning of section 173 of the Motor Vehicles Act, 1988.

( 6 ) IN view of the rival contentions, the points which arise for consideration in this appeal are: (1) Whether the order passed in LA. No. 1094 of 1993 refusing to condone the delay is an award or not? (2) Whether the said amendment repealing section 166 (3) is retrospective in operation and governs the pending proceedings?

( 7 ) THE learned counsel for the appellant submitted that under section 166 (3) of the motor Vehicles Act, in fact the petitioner need not file any application to condone the delay for filing the petition, and the same can be mentioned in the petition itself and if the appellant shows sufficient cause, the Tribunal can condone the delay. If the tribunal rejects the application filed under section 166 of the Motor Vehicles Act, it amounts to an award.

( 8 ) IN support of his contention, he relied upon a decision reported in Krishen Lal trikha v. Jupiter Genl. Ins. Co. , 1977 ACJ 339 (Jandk) and Balkar Singh v. Chajju ram, 1986 ACJ 542 (Jandk ).

( 9 ) IN Krishen Lal Trikha s case, 1977 acj 339 (Jandk), his Lordship Dr. A. S. Anand, J. , as he then was held that, "rejecting the claim petition on the ground that the same is barred by limitation, would be an award and appealable under section 110-D of the Motor Vehicles Act".

( 10 ) FOLLOWING the same, the High Court of Jammu and Kashmir in Balkar Singh s case, 1986 ACJ 542 (Jandk), which was referred to the third Judge on the difference of opinion, agreed with the order passed by the acting Chief Justice and held that "an order passed for the condonation of delay in filing the petition is an award and appealable under the Motor Vehicles act".

( 11 ) HOWEVER, the law laid down by the jammu and Kashmir High Court in Balkar singh s case is not applicable to the facts and circumstances of this case.