Section 487 of the Bombay Provincial Municipal Corporation Act, 1949, which requires service of notice on the Municipality and institution of suit within six months from the date of the cause of action, is not applicable to the applications for compensation under Section 110 of the Motor Vehicles Act.

JUDGMENT :

Deshpande, J.

1. In a motor accident dated 20th February, 1975, the Petitioner's son was killed. The vehicle causing the accident belonged to Respondent No. 1-- Poona Municipal Corporation and its driver was claimed to be negligent. On the date of the accident, however, the Motor Accident Tribunal was not in existence. The same was constituted by a Notification dated 25th March, 1976. The Petitioners made an application for compensation before the said Tribunal on 5th July, 1976. In the said application the Petitioners mentioned that though such an application was required to be made within six months of the accident, they could not so make the application as the Tribunal itself was not in existence at that time and was not constituted till 25th March, 1976. He also filed a separate application for condoning the delay.

2. The Tribunal, however, rejected this application for condo nation of the delay by an order dated 26th July, 1976. Consequently, he also rejected the claim made by the Petitioners for compensation by a separate order. The validity of these two orders is challenged in this Special Civil Application by the claimants.

3. Mr. Agarwal, the learned advocate appearing for the Poona Municipal Corporation raised a preliminary objection. Mr. Agarwal contends that against the Award u/s 110-D of the Motor Vehicles Act, the appeal to the High Court is competent. Mr. Jagdale, the learned advocate appearing on behalf of the Petitioners, on the other hand contends that his application for compensation having been rejected on the ground of limitation, no award can be said to have been passed and no appeal, therefore, can be said to have been maintainable. In support of his contention he relies on a judgment of the Gujarat High Court in the case of Zarin Rustomji Munshi Vs. Santubhai Manibhai Patel and Others, . The learned judge, no doubt, has upheld such contention and overruled the preliminary objection as to the maintainability of the Special Civil Application. Mr. Agarwal has not drawn our attention to any other case or any other provision of Law to justify any different view. We accordingly follow the view of the Gujarat High Court and overrule the preliminary objection of Mr. Agarwal.

4. The Tribunal observed that he would have allowed the application for condonation of delay but for the fact that such a claim could have been made against the Municipal Corporation only within six months of the occurrence of the accident and suit thereafter without notice to the Corporation and beyond the expiry of six months was not maintainable at all. According to the Tribunal, he would not be justified in condoning the delay when the claim had become time barred because of Section 487 of the Bombay Provincial Municipal Corporation Act, 1949.

5. Mr. Jagdale on the other hand relied on the judgment of the Division Bench of this Court in the case of Mrs. Khairunnissa A.K. Siddiki Vs. The Municipal Corporation of the City of Bombay, , The Division Bench held that Section 527 of the Bombay Municipal Corporation Act, 1888, analogous Section 487 of the present Bombay Provincial Municipal Corporation Act, 1949, was applicable to the suits against the Municipal Corporations and not to the applications made u/s 110 of the Motor Vehicles Act. The Division Bench accordingly accepted the claim of the claimants for compensation as being within time though no notice of the claim was served on the Municipality before such application was made. Now Section 527 of the Bombay Municipal Corporation Act and Section 487 of the Bombay Provincial Municipal Corporation Act, 1949, consist of two parts. First part requires service of notice on the Municipality in respect of the cause of action in the suit, while the second part requires the claimant to institute the suit before the expiry of the six months from the date of the cause of action. It is true that the second aspect of the matter had not fallen for consideration in the case of Khairrunnissa supr