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PETITIONER: NEW INDIA INSURANCE CO. LTD.

       Vs.

RESPONDENT: SMT. SHANTI MISRA, ADULT

DATE OF JUDGMENT10/10/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A. GOSWAMI, P.K.

CITATION:  1976 AIR  237            1976 SCR  (2) 266  1975 SCC  (2) 840  CITATOR INFO :  RF         1991 SC2156  (7)

ACT:      Motor Vehicle  Act (4  of  1939),  ss.  110A  to  110F- Limitation  in  case  of  accident  before  constitution  of Tribunal and  application for  compensation filed  beyond  2 months of the constitution of the Tribunal.

HEADNOTE:      Section 110A(3)  of the Motor Vehicles Act, 1939 before its amendment  in 1970,  provided that  no  application  for compensation arising  out  of  an  accident  of  the  nature specified in  s. 110(1)  shall be  entertained by the Claims Tribunal unless  it is made within 60 days of the occurrence of the  accident. Under its proviso, the Claims Tribunal has power to  excuse any  delay in  filing the application if it was satisfied that the applicant was prevented by sufficient cause. S.  110F bars the jurisdiction of the Civil Court, as soon as the Claims Tribunal is constituted.      As a  result of  an accident  in September,  1966,  the husband of  the respondent died. The limitation for filing a suit is  2 years  from the  date of  accident under  Art. 82 Limitation  Act   1963.  On  18th  March,  1967,  the  State Government constituted the Claims Tribunal under s. 110. The respondent filed  an application for compensation on July 8, 1967. The Tribunal and the High Court held that the Tribunal could entertain the application.      Dismissing the appeal to this Court, ^      HELD:  (1)   The  change   in  law   effected  by   the introduction of  ss. 110A  to 110F in 1956 was only a change of forum,  that is, a change of adjectival or procedural law and not  of substantive  law. Such  a change of law operates retrospectively and  the person  has to  go to the new forum even if his cause of action or right of action accrued prior to the  change of  forum, because,  though he  has a  vested right of  action, he  has no  vested  right  of  forum.  The expressions "arising  out of  an accident"  occurring in  s. 110A(1) and  "over the  area in which the accident occurred" in s.  110A(2), and  the absence of express words making the new forum  available only  to causes of action arising after

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the creation  of the Tribunal, show that the change of forum was meant  to operate  retrospectively irrespective  of when the accident occurred. [270E-G]      (2) The  underlying principle  of the change of law was to  enable   the  claimants   to  have  a  cheap  remedy  of approaching the  Claims Tribunals  on payment  of a  nominal court-fee instead  of an  ad valorem  amount  in  the  Civil Court. Pending  suits  are  not  to  be  affected,  but  the Legislature wanted  the cheap remedy to be available as soon as a  Tribunal was  constituted by the State Governments, in all  cases,  irrespective  of  the  date  of  the  accident, provided the  remedy of going to the court was not barred on the date of the constitution of the Tribunal. [271C-E]      (3) Therefore,  if the  accident had occurred within 60 days prior to the constitution of the Tribunal then it could be said  that an  application to  the Tribunal  was the only remedy. If  such an application could not be made. within 60 days, then  the Tribunal  has the power to condone the delay under the proviso. But if the accident occurred more than 60 days before  the constitution  of the  Tribunal, it could be contended either,  (a) that  such a  case will  be a fit one where the  Tribunal would be able to condone the delay under the proviso.  But if the accident occurred more than 60 days before the  cons to  entertain such  an application  and the remedy of  going to  the Civil Court in such a situation was not barred under s. 110F. [270H-271B]      (4) Since the change of forum is retrospective it could not be  contended that  recourse  to  suit  would  still  be available under the old law of limitation [273B-C] 267      (5) But,  taking recourse  to the proviso to s. 110A(3) for excusing  the delay  in applying  to the Tribunal is not correct. Section  5 of  the Limitation  Act,  1963,  or  the proviso to  s. 110A(3)  of the Act, are meant to condone the default of  the party on the ground of sufficient cause. But if a  party is  not able to file an application for no fault of his,  but because  the Tribunal  was not in existence, it will not  be a  case where it can be said that the applicant was  prevented   by  sufficient   cause  from   making   the application in  time within  the  meaning  of  the  proviso. However, the  application  would  not  be  barred  under  s. 110A(3), because,  (a) though  time had  started running for the filing  of the  suit, but  since before  it expired  the forum was  changed, for  the purpose  of the  changed forum, time could  not be deemed to have started running before the remedy of going to the new forum is made available;. and (b) though generally  the law of limitation which is in vogue on the date  of the commencement of the action Governs it a new law of  limitation providing a longer period cannot revive a dead remedy, and similarly a new law of limitation providing for a  shorter period  cannot suddenly  extinguish a  vested right of action by providing a shorter period of limitation. [271E-272C]      Since there  is a  change of forum, the reasonable view to take  would be that the application can be filed within a reasonable time  of the  constitution of the Tribunal, which ordinarily and  generally, would  be the  time of limitation mentioned in sub-s. (3); and if the application could not be made within  that time  from the date of the constitution of the Tribunal  in a given case, the further time taken may be held to  be reasonable  on the  facts of  that case,  or the delay can  be condoned  under the  proviso to  that section. [273E]      Therefore, in the present case, the jurisdiction of the Civil Court  is ousted  as soon  as the  Claims Tribunal was

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constituted and  the filing  of the  application before  the Tribunal was  the only  remedy available  to the respondent. Since the  law was not clear on the point, the time of about four months  taken in  approaching the  Tribunal  after  its constitution can be held to be either reasonable time or the delay of  about two  months  could  be  condoned  under  the proviso to s. 110A(3). [273F]      Unique Motor  and General Insurance Co. Ltd., Bombay v. Kartar Singh  and another  AIR 1965 Pun. 102.; M/s. V. C. K. Bus Service  (P) Ltd. Coimbatore and another v. H. S. Sethna and others, A.I.R. 1965 Mad. 149. Palani Ammal and others v. The safe  Service Ltd.  Salem and others, I.L.R.[1965]2 Mad. 145: Natwarlal Bhikhalal Shah v. Thakarda Khodali Kalaji and others, I.L.R.  1967 Guj.  495. Ydav  Motor Transport Co and others v.  Jagdish Prasad  Bhimganj Ward  Kota, A.I.R.  1969 Raj. 316:  Thomas and  others v. Messrs Hotz Hotels Ltd. and others, A.I.R.  1969 Delhi  3; Delhi and London Bank Ltd. v. Melmoth A.  D. Orchard,  4 I.A.  127; Gopeshwar Pal v. Jiban Chandra Chandra  Jenkins, I.T.R.  41  Cal.  1125  and  Rajah Meherban-I-Doston Sri  Raja Row  V. K. M. Surya Row Bahadur, Sirdar, Rajahmundry  Sircar and  Rajah  of  Pittapur  v.  G. Venkata Subba  Row and  five others,  I.L.R.  34  Mad.  645. referred to.      Observations contra  in Khatunnal Ghanshamdas v. Abddul Qadir Jamaluddin  and others.  AIR  1961  M.P.  295;  Kumari Sushma Mehta  v. Central  Provinces Transport  Services Ltd. and others,  AIR 1964  M.P. 133  and The  Bihar Co-operative Motor Vehicles Insurance Society Ltd. v. Rameshwar. Rawt and others, AIR 1970 Patna 172, disapproved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 210 of 1975.      From the  Judgment and  order dated  the 13th  October, 1971 of  the Allahabad  High Court in Special Appeal No. 114 of 1969.      D. D. Chawla and H. K. Puri for the Appellant.      J. B.  Goyal, D.  P. Mukherjee  and  S.  P.  Singh  for Respondents Nos. 1-3. 268      The Judgment of the Court was delivered by      UNTWALIA,  J.-This  is  an  appeal  by  certificate  of fitness granted by the Allahabad High Court. The question of law which  falls for determination in this appeal is whether an application  for compensation filed under section 110A of the Motor Vehicles Act, 1939 (for brevity, the Act), arising out of  an accident  which occurred more than 60 days before the constitution  of the  Motor  Accidents  Claims  Tribunal under section  110 could  be entertained  by the Tribunal or the remedy  of the aggrieved person was to institute a civil suit.      On the  11th September  1966 occurred  an  accident  in which Shri  Amar Nath Misra, husband of respondent no. 1 and father of respondents 2 and 3 met his death due to collision between his motor cycle and a truck owned by appellant no. 2 and insured  with appellant no. 1. A cause of action accrued to the  respondents 1,  2  and  3  (hereinafter  called  the respondents) to  claim compensation as legal representatives of the  deceased under the Indian Fatal Accidents Act, 1855. A suit  could be  brought under Article 82 of the Limitation Act,  1963  within  two  years  of  the  occurrence  of  the accident. But  in the  mean-time  the  Government  of  Uttar Pradesh constituted the Claims Tribunal under section 110 of

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the Act,  by a  notification published in the Gazette of the 18th March, 1967. The respondents filed an application under section 110A  on the 8th July, 1967. The appellants objected to  the  jurisdiction  of  the  Tribunal  to  entertain  the application. The Tribunal over-ruled the. Objection and held that it  had jurisdiction  to entertain the application. The appellants filed  a writ application in the High Court which was allowed  by a  learned single  Judge. In appeal filed by the respondents  there was  a difference  of opinion between the two judges constituting the Division Bench. On reference to a  third Judge  the ultimate view taken by the High Court was that  the Tribunal  had jurisdiction  to entertain  this application. Hence this appeal.      The Act  was amended  by Central  Act 100  of 1956 with effect from the 16th February 1956. The original section 110 was deleted  and new  sections 110  to 110F were introduced. The Claims  Tribunals however,  were not  constituted by the State Governments  at one  and  the  same  time.  They  were constituted with  different dates for different areas. Until and  unless   the  Claims  Tribunals  were  constituted  the provisions of  the new  sections introduced in the year 1956 could not  be availed  of. But  as soon as a Claims Tribunal was constituted  the jurisdiction  of the  Civil  Court  was barred by section 110F which reads as follows:           "Where any  Claims Tribunal  has been  constituted      for any area, no Civil Court shall have jurisdiction to      entertain  any  question  relating  to  any  claim  for      compensation which  may  be  adjudicated  upon  by  the      Claims Tribunal  for that  area, and  no injunction  in      respect of any action taken or to be taken by or before      the  Claims  Tribunal  in  respect  of  the  claim  for      compensation shall be granted by the Civil Court." 269 But difficulties  arose in  giving full effect to the bar of jurisdiction of  the Civil  Court because of the language of section 110A  providing for the filing of an application for compensation. There  could not be any debate or dispute that if an accident occurred after the constitution of the Claims Tribunal, the  only remedy  of the  claimant was  to file an application under  section 110A.  The  jurisdiction  of  the Civil Court  in such  a case was ousted in express language. Suits which had been instituted prior to the constitution of the Claims  Tribunal remained  unaffected and had to proceed to disposal  in Civil  Courts. In  a third type of case also there could  not be  much scope for debate where an accident had occurred  prior to  the constitution of the Tribunal and the remedy  of the  suit was  barred on  the  date  of  such constitution. A  barred remedy  under no  circumstances  was meant to  be revived  under section 110A. But the difficulty arose in  cases where  accidents had  occurred prior  to the constitution of the Claims Tribunal, the remedy of action in Civil Court  was alive  but no  suit had been filed. In such cases the  vested right  of  action  was  not  meant  to  be extinguished. The  remedy of  either  an  application  under section 110A  or a  civil suit must be available; surely not both. Majority  of the  High Courts  have expressed the view that in  such a situation the only remedy available was that of  filing  an  application  before  the  Tribunal  and  the jurisdiction of  Civil Court  was barred.  Vide Unique Motor and General  Insurance Co.  Ltd., Bombay v. Kartar Singh and another;(1) M/s V. C. K. Bus Service (P) Ltd. Coimbatore and another v.  H. B.  Sethna and  others.(2)  Palni  Ammal  and others v.  The Safe  Service,  Ltd.,  Salem  and  others;(3) Natverlal Bhikhalal  Shah v.  Thakarda  Khodaji  kalaji  and others;(4) Jade  Motor Transport  Co. and  others v. Jagdish

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Prasad Bhimganj Ward Kota(5) and Thomas and others v. Messrs Hotz Hotels Ltd. and others(6). A contrary view was taken by the Madhya  Pradesh High  Court in  Khatumal Ghanshamdas  v. Abdul Qadir Jamaluddin and others(7); Kumari Sushma Mehta v. Central Provinces  Transport Services Ltd. and others(8). In the first  case of  Madhya Pradesh  observations were obiter dicta because  on facts  it was  a case  of a  pending suit. Similar obiter  dicta were made by a Bench of the Patna High Court following  the Madhya Pradesh decisions in the case of The Bihar  Co-operative Motor  Vehicles,  Insurance  Society Ltd. v. Rameshwar Raut and others(9). The question falls for determination in  this Court  for the first time and we have to decide which of the two views is correct.      We shall  now read  section 110A  as it  stood  at  the relevant time:           "110A. (1) An application for compensation arising      out of  an accident  of the  nature specified  in  sub-      section (1) of section 110 may be made-           (a)  by the  person who  has sustained the injury;                or 270           (b)  where death  has resulted  from the accident,                by all or any of the legal representatives of                the deceased; or           (c)  by any  agent duly  authorised by  the person                injured  for   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.           (2) Every  application under sub-section (1) shall      be made to the Claims Tribunal having jurisdiction over      the area  in which  the accident occurred, and shall be      in such  form and shall contain such particulars as may      be prescribed.           (3) No  application for  compensation  under  this      section shall  be entertained  unless it is made within      sixty days of the occurrence of the accident:           Provided 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   from   making   the      application in time."      A period  of six  months was  substituted in  place  of sixty days  in sub-  section (3)  by Act,  56 of  1969  with effect from 2-3-1970.      On the  plain language  of sections 110A and 110F there should be  no difficulty  in taking the view that the change in law  was merely  a change  of  forum  i.e.  a  change  of adjectival or  procedural law and not of substantive law. It is well-established  proposition that  such a  change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but  not a vested right of forum. If by express words the new  forum is  made available  only to  causes of action arising  after   the  creation   of  the   forum,  then  the retrospective operation  of the law is taken away. Otherwise the  general   rule  is   to  make   it  retrospective.  The expressions "arising  out of  an accident" occurring in sub-

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section (1)  and  "over  the  area  in  which  the  accident occurred", mentioned  in sub-section  (2) clearly  show that the change  forum was  meant to be operative retrospectively irrespective of the fact as to when the accident occurred To that extent  there was no difficulty in giving the answer in a simple  way. But  the provision  of limitation  of 60 days contained in  sub-section (3)  created an  obstacle  in  the straight application  of the  well-established principle  of law. If  the accident  had occurred  within 60 days prior to the constitution  of the Tribunal then the bar of limitation provided in  sub-section  (3)  was  not  an  impediment.  An application to  the Tribunal  could be  said to  be the only remedy. If  such an  application, due  to one  reason or the other, could not be made within 60 days then the 271 Tribunal had  the power  to  condone  the  delay  under  the proviso. But  if the  accident occurred  more than  60  days before the  constitution of  the Tribunal  then the  bar  of limitation provided  in sub-section  (3) of  section 110A on its face  was attracted.  This difficulty  of limitation led most of  the High  courts to  fall back upon the proviso and say that  such a  case will  be a fit one where the Tribunal would be able to condone the delay under the proviso to sub- section (3),  and led  others to  say that the Tribunal will have no  jurisdiction to  entertain such  an application and the remedy  of going  to the Civil Court in such a situation was not  barred under  section 110F of the Act. While taking the latter  view  the  High  Court  failed  to  notice  that primarily the  law engrafted in sections 110A and 110F was a law relating to the change of forum.      In our  opinion in  view of  the clear  and unambiguous language of  sections 110A and 110F it is not reasonable and proper to  allow the  law of change of forum give way to the bar of  limitation provided  in sub-section  (3) of  section 110A. It  must be  vice versa. The change. Of the procedural law of  forum  must  be  given  effect  to.  The  underlying principle  of  the  change  of  law  brought  about  by  the amendment in  the year  1956 was  to enable the claimants to have a  cheap remedy  of approaching  the Claims Tribunal on payment of a nominal court fee where as a large amount of ad valorem court fee was required to be paid in Civil Court. It is legitimate to think that the legislature did not think it necessary to  affect the  pending suits but wanted the cheap remedy  to   be  available  as  soon  as  the  Tribunal  was constituted  by   the  State   Governments,  in  all  cases, irrespective of  the date  of  the  accident,  provided  the remedy of  going to  the Court was not barred on the date of the  constitution   of  the   Tribunal.  Then,  how  is  the difficulty of  limitation in  such cases to be solved is the question.      In our  opinion taking recourse to the proviso appended to subsection  (3) of  section 110A  for excusing  the delay made in  the filing  of the  application between the date of the accident  and  the  date  of  the  constitution  of  the Tribunal is  not correct.  Section 5  of the Limitation Act, 1963 or  the proviso  to sub-section (3) of the section 110A of the  Act are meant to condone the default of the party on the ground  of sufficient  cause. But if a party is not able to file  an application  for no fault of his but because the Tribunal was  not in  existence, it will not be a case where it  can  be  said  that  the  "applicant  was  prevented  by sufficient cause from making the application in time" within the meaning  of the proviso. The time taken between the date of the  accident and the constitution of the Tribunal cannot be condoned under the proviso. Then, will the application be

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barred under  sub-section (3) of section 110A? Our answer is in the negative and or two reasons:           (1)  Time  for   the   purpose   of   filing   the                application under  section 110A did not start                running  before   the  constitution   of  the                Tribunal. Time  had started  running for  the                filing of  the suit but before it had expired                the forum was changed. And for the purpose of                the 272                changed forum,  time could  not be  deemed to                have started running before a remedy of going                to the new forum is made available.           (2)  Even  though   by  and   large  the   law  of                limitation has  been held  to be a procedural                law, there  are exceptions to this principle.                Generally the  law of  limitation which is in                vogue on  the date of the commencement of the                action governs  it.  But  there  are  certain                exceptions to  this principle. The new law of                limitation providing  a longer  period cannot                revive a  dead remedy.  Nor can  it  suddenly                extinguish  vested   right   of   action   by                providing for a shorter period of limitation.      In Delhi  and London  Bank, Limited  v.  Melmoth  A  D. Orchard(1) Sir  Barnes Peacock  delivering the  judgment  on behalf of the Board said at page 135:           "Indeed, if  the construction  put upon the Act by      the High Court at Bombay, and by the Chief Court in the      Punjab, is  correct, a  judgment  creditor  could  not,      after the  three years,  have enforced a judgment which      was in  force in  the Regulation Provinces when Act XIV      of 1859 was passed, or a judgment which was in force in      the Punjab  at the  time when  the Act  was extended to      that province,  however diligent  he might have been in      endeavouring  to  enforce  his  judgment,  and  however      unable, with the use of the utmost diligence, to get at      the property  of his  debtor. Such a construction would      cause great  inconvenience and  injustice, and give the      Act an  operation which  would retrospectively  deprive      the creditor  of a  right which he had under the law as      it existed  in the  Regulation Provinces at the time of      the passing  of the  Act, and in the Punjab at the time      of the introduction of it."      In Gopeshwar  Pal v. Jiban Chandra Chandra(2), Jenkins, C.J. delivering  the judgment  on behalf  of the majority of the full Bench said at page 1141:           "Here the  plaintiff at the time when the amending      Act was  passed had  a vested right of suit, and we see      nothing  in   the  Act  as  amended  that  demands  the      construction that the plaintiff was thereby deprived of      a right  of suit  vested in  him at  the  date  of  the      passing of the Amending Act. It is not (in our opinion)      even a  fair reading  of  section  184  and  the  third      Schedule of the Bengal Tenancy Act, as amended, to hold      that it  was intended to impose an impossible condition      under pain  of the forfeiture of a vested right, and we      can only  construe the  amendment as  not  applying  to      cases where its provisions cannot be obeyed." 273 The majority  of the  Full Bench of the Madras High Court in Rajah Sahib  Meharban-I-Doston Sri  Raja Row  V. K. M. Surya Row Bahadur,Sirdar,Rajahmundry  Sircar and Rajah of Pittapur v. G.  Venkata subba  Row and  five other  (1) has taken the same view  following the  Full Bench  decision in  Gopeshwar

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Pal’s case  at page  650. Amendment of the law of limitation could not  destroy the plaintiff’s right of action which was in existence  when the Act came into force. We are conscious of the  distinction which  was sought  to  be  made  in  the application of  these principles. It was said that the right could not  be  destroyed  but  recourse  to  suit  would  be available under the old law of limitation. We,however, think that giving  retrospective effect  to the  change of  law in relation to  the forum,  in the context of the object of the change,  is   imperative.  That   being  so  the  principles aforesaid for  overcoming the  bar  of  limitation  will  be applicable.      Apropos the  bar  of  limitation  provided  in  section 110A(3), one  can say,  on  the  basis  of  the  authorities aforesaid that strictly speaking the bar does not operate in relation to  an application  for compensation arising out of an accident  which occurred prior to the constitution of the Claims Tribunal.  But since in such a case there is a change of forum,  unlike the fact of the said cases, the reasonable view to  take would be that such an application can be filed within  a   reasonable  time  of  the  constitution  of  the Tribunal, which  ordinarily and  generally would be the time of  limitation   mentioned  in   sub-section  (3).   If  the application could not be made within that time from the date of the  constitution of  the Tribunal,  in a given case, the further time  taken in  the making of the application may be held to be the reasonable time on the facts of that case for the making  of the  application or  the delay made after the expiry of  the period  of limitation  provided in subsection (3) from the date of the constitution of the Tribunal can be condoned under  the proviso to that sub-section. In any view of the matter, in our opinion, the jurisdiction of the Civil Court  is   ousted  as   soon  as  the  Claims  Tribunal  is constituted and  the filing  of the  application before  the Tribunal is  the only  remedy available  to the claimant. On the facts of this case, we hold that the remedy available to the respondents  was to  go before  the Claims  Tribunal and since the  law was  not very clear on the point, the time of about four  months taken  in approaching  the Tribunal after its constitution  can be held to be either a reasonable time or the  delay of  less than  2 months could well be condoned under the proviso to sub-section (3) of section 110A.      For the  reasons stated  above, we  dismiss this appeal with costs to respondents 1, 2 and 3. V.P.S.                                     Appeal dismissed. 274