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HIGH COURT OF ORISSA
R. N. Misra And B. K. Ray, JJ.
HEMALATA DEVI - Appellant
Versus
SK. LOKMAN AND ORS. - Respondent
M. A. 184 Of 1971
Decided On : MARCH 08, 1973
MOTOR VEHICLES ACT - LIMITATION - CONDONATION OF DELAY - SUFFICIENT CAUSE - DISCRETION OF TRIBUNAL - RE-OPENING OF QUESTION OF LIMITATION - QUANTUM OF COMPENSATION - NEGLIGENCE - LIABILITY OF INSURER.
Fact of the Case:
The appellant's son, Subodh Mohapatra, died in a jeep accident on February 15, 1969. The appellant filed a claim for compensation under Section 110-A of the Motor Vehicles Act, 1939, on February 6, 1970, beyond the 60-day limitation period. The Tribunal condoned the delay on March 17, 1970, but later, after hearing the respondents, held that sufficient cause for the delay had not been established and dismissed the claim on limitation grounds. The appellant challenged the Tribunal's decision.
Finding of the Court:
The Court held that the Tribunal erred in not condoning the delay in filing the claim. It found that the appellant had been suffering from gout and sciatica for a long period and was unable to move about. The Court also held that the Tribunal erred in finding that there was no negligence on the part of the driver of the jeep. It found that the accident was the result of the driver's rash and negligent driving.
Issues: 1. Whether sufficient cause had been shown by the claimant for exercise of discretion under the proviso to Section 110-A (3) of the Act? 2. Whether once discretion has been exercised and limitation has been condoned before issue of notice to the respondents, they (respondents) are entitled to re-open the question of limitation after entering appearance in the case? 3. Is the claimant entitled to any compensation? 4. In case the claimant is entitled to compensation, which of the respondents is liable for it?
Ratio Decidendi: 1. The Court held that the Tribunal had erred in not condoning the delay in filing the claim. It found that the appellant had been suffering from gout and sciatica for a long period and was unable to move about. The Court also held that the Tribunal erred in finding that there was no negligence on the part of the driver of the jeep. It found that the accident was the result of the driver's rash and negligent driving. 2. The Court held that the respondents were entitled to re-open the question of limitation after entering appearance in the case. It found that the Tribunal's order condoning the delay was an ex parte order and that the respondents were entitled to challenge it. 3. The Court held that the appellant was entitled to compensation of Rs. 2,500/-. It found that the deceased was earning Rs. 180/- per month and that he was contributing Rs. 25/- per month to the appellant's maintenance. 4. The Court held that the owner of the jeep, Sk. Lokman, was liable to pay the compensation.
Final Decision: The Court allowed the appeal in part and directed that the appellant be paid compensation of Rs. 2,500/- by the owner of the jeep.
R. N. MISRA, J.
( 1 ) THIS is an appeal under Section 110-D (1) of the Motor Vehicles Act of 1939 (hereinafter referred to as the Act) against the award of the Motor Vehicles Claims tribunal, Balasore, dismissing the claim.
( 2 ) THE appellant happens to be the mother of one Subodh Mohapatra who was travelling on 15-2-69 in a jeep bearing registration No. O. R. C. 7586 from balasore to Soro. The claimant alleged that the vehicle was being driven rashly and at a considerable speed and while it was about 3 miles away from Soro at about 4 P. M. one of the rear tyres burst. The driver failed to control the vehicle and it ultimately went out of the road and capsized leading to the instantaneous death of Subodh. The jeep belongs to the respondent No. 1. An Oriya film "kie Kahara" was being exhibited at the Balasore Talkies during the material period. The Balasore Talkies arranged this jeep for the purpose of doing publicity work. Along with the driver and the cleaner the vehicle besides the publicity staff the deceased proceeded towards Soro on the National Highway. It is claimed that the deceased was working with the Panchasakha Pictures, the producers of the film, on a monthly salary of Rs. 180/- and he was travelling in the jeep at the material point of time for performance of his duty, namely, making publicity for the film On these averments the appellant laid claim for compensation of Rs. 32,400/- and filed the application on 6-2-70.
( 3 ) IN the claim petition five persons were impleaded as the opposite oar-ties. They are (1) the Balasore Talkies, (2) the owner of the vehicle, (3) the driver thereof, (4) the Panchasakha Pictures, and (5) the insurer of the vehicle M/s. Hindusthan general Insurance Society Ltd. Excepting the driver the other opposite parties entered appearance and contested the claim. Cause of action in this case arose on 15-2-69. As the law stood then the application for compensation was to be filed within 60 days of the occurrence of the accident as per the provisions under Section 110-A (3) of the Act. The application having been filed on 6-2-70 was barred by limitation. The appellant applied for condonation of the delay. On 13-2-70, the Tribunal examined her on oath and on 17-3-70, on a consideration of the affidavit, the medical certificate and the initial statement of the appellant found sufficient cause for the delay and in exercise of the powers vested under the proviso to Section 110-A (3) of the Act condoned the limitation and entertained the claim. After notice was issued, the respondents pleaded that the claim was barred by limitation. Accordingly along with several issues the question of limitation was raised as issue No. 2. On a reconsideration of the matter the Tribunal (not the one that condoned the limitation) came to find that sufficient cause for the delay had not been established and, therefore, the claim was to be thrown away on the ground of limitation. It further found that negligence had not been established by the claimant; yet if the appellant was entitled to compensation a sum of Rs. 10,000/would have been adequate for the purpose. It is against this award that the appeal has been filed.
( 4 ) FOUR points arise for determination in this appeal;
(1) Has sufficient cause been shown by the claimant for exercise of discretion under the proviso to Section 110-A (3) of the Act? (2) Whether once discretion has been exercised and limitation has been condoned before issue of notice to the respondents, they (respondents) are entitled to re-open the question of limitation after entering appearance in the case? (3) Is the claimant entitled to any compensation? (4) In case the claimant is entitled to compensation, which of the respondents is liable for it?
( 5 ) POINT No. 1. There is no dispute that the claim application was filed beyond the time provided under Section 110-A (3) of the Act. Until December 1969 the period prescribed for presentation of a claim application was 60 days from the da
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