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THE HIGH COURT OF SIKKIM: GANGTOK
BHASKAR RAJ PRADHAN, J.
Prethivi Raj Rai, S/o late Krishna Bahadur Rai,- Appellant
versus
The Secretary, Sikkim Nationalized Transport Department, Government of Sikkim, Gangtok, East Sikkim - Respondents
M.A.C. Appeal No. 04 of 2021
Decided On : 23-04-2021
Motor Vehicles Act - Condonation of Delay - Section 166, Limitation Act, 1963 - [Motor Vehicles Act, Condonation of Delay, Section 166, Limitation Act]
Fact of the Case:
An accident occurred in 2017, and the appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 in 2020. The appellant also filed a petition seeking condonation of delay under Section 5 of the Limitation Act, 1963. The Claims Tribunal dismissed the application, citing the enforcement of sub-section (3) of section 166, which was later found to be a misconception.
Finding of the Court:
The court found that the application for condonation of delay and the impugned order were made and passed on a misconception of facts and law, as the proposed amendment to section 166 of the Motor Vehicles Act, 1988 was yet to be enforced.
Issues: The main issue was the misconception regarding the enforcement of sub-section (3) of section 166 and its applicability to the case.
Ratio Decidendi: The court's decision was influenced by the fact that the proposed amendment to section 166, which was believed to be in force, was actually not yet enforced, leading to a misconception of law and facts.
Final Decision: The impugned order was set aside, and the claim petition preferred by the appellant was restored back to its files.
ORDER :
Bhaskar Raj Pradhan, J
1. It transpires that on 17.08.2017 an accident occurred when a Sikkim Nationalised Transport bus plying from Gangtok carrying passengers tumbled 250 feet below the road due to which the appellant and others sustained injuries. The appellant therefore, preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 on 23.06.2020.
2. On 08.09.2020 the appellant filed a petition seeking condonation of delay under Section 5 of the Limitation Act, 1963. The Claims Tribunal dismissed the application vide impugned order dated 11.11.2020 holding that sub-section (3) of section 166 was enforced on 09.08.2019 and that the appellant had not shown sufficient cause to condone the delay in filing the petition. The appellant is aggrieved by the impugned order dated 11.11.2020 passed by the Claims Tribunal and has therefore, preferred this appeal under section 173 of the Motor Vehicles Act, 1988.
3. Heard Mr. B.K. Gupta, learned Legal Aid Counsel for the appellant, Mr. Sudesh Joshi, learned Additional Advocate General for the respondent no.1 and Ms. Phurba Diki Sherpa, learned counsel for the respondent no.2.
4. It appears that the appellant had filed the application for condonation of delay presuming that section 53 of the Motor Vehicles (Amendment) Act, 2019 (Amendment Act) amending section 166 and inserting sub-section (3) therein had been enforced. The proposed sub-section (3) of section 166 provided that no application for compensation shall be entertained unless it is made within six months of the occurrence of the accident. As the accident had occurred on 17.08.2017 and the claim petition was preferred on 23.06.2020 there was apparently delay in preferring the claim petition. This led to the filing of the application for condonation of delay.
5. At the hearing, the learned counsel for the respective parties informs this court that the proposed amendment vide section 53 of the Amendment Act has in fact not yet been enforced. Copies of various notifications bringing in force various provisions of the Amendment Act have been annexed by the appellant in the appeal.
6. The Motor Vehicles Act, 1988 came into force w.e.f. 01.07.1989. Sub-section (3) of section 166 as originally brought into force was omitted by Act 53 of 1994 w.e.f. 14.11.1994. Prior to the omission it read as:-
7. After the omission of sub-section (3) as it existed, section 166 reads as under:-
(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: Provided further that where a person accepts compensation under Section 164 in accordance with the procedure provided under Section 149, his claims petition before the Claims Tribunal shall lapse.”
8. It would be noticed that after the omission of sub-section (3) as it existed, there is no provision prescribing a period of
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